Exhibit
10.22
 Licensed
Works Agreement
 Statement
of Work
 Base
Agreement # 4908004013
 SOW#
4908004020


This
Statement of Work ("SOW") # 4908004020 adopts and incorporates by reference
the terms and conditions of Licensed Works Agreement #
4908004013 (“Base Agreement”) between International Business Machines
Corporation (“Buyer”) and Avistar Communications
Corporation (“Supplier”).   Unless
otherwise defined herein below, all terms shall have the definitions ascribed to
them in the Base Agreement.  This SOW is effective beginning on the
last date of execution by both parties, and will remain in effect without
cancellation for an initial five (5) year term unless earlier terminated for
Cause in accordance with Section 14.1 of the Base Agreement; thereafter, this
SOW  will remain in effect until terminated in accordance with Section
14.0 of the Base Agreement (“Term”).  Transactions performed under this SOW
will be conducted in accordance with and be subject to the terms and conditions
of this SOW, the Base Agreement, and any applicable Work Authorizations
(“WAs”).  This SOW is not a WA.





1.0
            Scope
      of Work


Buyer
licenses from Supplier components of a bandwidth management computer software
program known as Avistar C3 v10.5 (“Avistar Bandwidth Management”) and
subsequent updates, Error Corrections and Enhancements as described in Section 3.0of this SOW.
Supplier will also provide to Buyer the Services and Deliverables described in
Section 5.0 of this
SOW.





2.0
            Definitions





“Cluster”means a group of
coupled computers that work together closely so that in many respects they can
be viewed as though they are a single computer. The components of a Cluster are
commonly, but not always, connected to each other through fast local area
networks. Clusters are usually deployed to improve performance and/or
availability over that provided by a single computer, while typically being much
more cost-effective than single computers of comparable speed or
availability.





"Deliverables" means items
that Supplier prepares for or provides to Buyer as described in a SOW and/or WA.
Deliverables include Developed Works, Licensed Works, Preexisting Materials, and
Tools.





"Developed Works" means all
work product (including software and its Externals), developed in the
performance of this Agreement as described in this SOW and/or a WA. Developed
Works do not include Licensed Works, Preexisting Materials, Tools, or items
specifically excluded in this SOW and/or a WA.





“Fail-over”means the
capability to switch over automatically to a redundant or standby computer
server, system, or network upon the failure or abnormal termination of the
previously active server, system, or network. Fail-over happens without human
intervention and generally without warning, unlike switchover.





“Node”means a single
computing device, such as a hardware server.





“Pre-Existing
Materials”                                                      
means items including their Externals, contained within a Deliverable, in which
the copyrights are owned by a third party or that Supplier prepared or had
prepared outside the scope of this Agreement.  Preexisting Materials
exclude Tools, but may include material that is created by the use of
Tools.





“Representational State Transfer”
(“REST”) means an architectural style to code Application Programming
Interfaces (“API”) using HTTP. This style is described in Roy Fielding’s
dissertation, “Architectural
Styles and the Design of Network-based Software
Architectures”.





“Resource
Reservation Protocol” (“RSVP”)means atransport
layerprotocoldesigned to reserve resources across anetworkfor anintegrated
servicesInternet.





“Session Initiation Protocol” (“SIP”)means a signalling protocol,
widely used for setting up and tearing down multimedia communication
sessions such as voice and video calls
over the Internet.





“Software Subscription or Metered Use
Offering” means an offering to customers or other users, whether or not
branded by Buyer or its Affiliates, for which end user customers pay a fee for
access to software functionality for a fixed period of time, or for a fixed
quantity of Web-based services.


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“Subsidiary” or “Subsidiaries” shall mean a
corporation, company or other entity:


(a)           more
than fifty percent (50%) of whose outstanding shares or securities (representing
the right to vote for the election of directors or other managing authority)
are, now or hereafter, owned or controlled, directly or indirectly, by a party
hereto, but such corporation, company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control exists; or


(b)           which
does not have outstanding shares or securities, as may be the case in a
partnership, joint venture or unincorporated association, but more than fifty
percent (50%) of whose ownership interest representing the right to make the
decisions for such corporation, company or other entity is now or hereafter,
owned or controlled, directly or indirectly, by a party hereto, but such
corporation, company or other entity shall be deemed to be a Subsidiary only so
long as such ownership or control exists.





“Multipoint Control Unit” (“MCU”)means an endpoint on the local area network that provides the capability
for three (3) or more terminals and gateways to
participate in a multipoint
conference.





“Virtual Private Network”
(“VPN”) means a computer network in
which some of the links between nodes
are carried by open
connections or virtual circuits in
some larger network (e.g., the Internet) instead of
by physical wires.





3.0
            Licensed Work and Related
      Deliverables and
Services


3.1
Description of Licensed Work


3.1.1  General
Description of Licensed Work:


1. Code
name and version number: Components of Avistar Bandwidth Management, limited
to:


·
            Bandwidth
      management  (phase 1)


·
            Bandwidth
      management API (phase 1)


·
            API
      to visualize statistical usage data
(phase





***





3. 
Documentation: Supplier will provide documentation as necessary for customers to
enable Product Application Programming Interfaces (“API’s”).  Supplier
will provide documentation reasonably necessary for instructional purposes for
end user or administrator including installation, configuration and performance
of the Licensed Work.  Supplier will provide documentation for
functional specification and functional capability.  Supplier will
provide documentation for Major Enhancements, Error Corrections and Basic
Enhancements.





4. 
Other materials: Documentation for the purpose of sales or technical
enablement.





5. 
Delivery Requirements:  Supplier will deliver the Licensed Works
electronically in Object Code format or WAR format as denoted
above.





3.1.2  Specific
Description of Licensed Work:


1.  Code name and
version number:  Components of Avistar Bandwidth Management,
limited to:


·
            Bandwidth
      management functionality (phase 1)


·
            Bandwidth
      management API (phase 1)


·
            API
      to visualize statistical  usage data (phase
  2)





a)       
Format:  Object Code suitable for embedding in the Product, per
Buyer’s specification, and modified to include any IBM branding in place of
Supplier’s branding.





b)       
Required function:





***








d)       
Installation


1)
            Supplier
      will provide an installation process for the Licensed Works that is also
      able to install


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Buyer-created
components.  It is understood that in different system deployments the
installation process may involve multiple installation processes or need to be
invoked multiple times on different servers.


2)
            Supplier
      will document the installation process for use by Buyer to deploy the
      Product.


3)
            Supplier
      will provide all relevant information and documentation for the
      installation, deployment and configuration of the elements of the Licensed
      Works to achieve the requirements set forth in this
    document.


4)
            The
      separately installed Licensed Works will appear in the installation
      databases (e.g. Windows Registry on Windows, Red Hat Package Manager
      database on Red Hat and SUSE) like any other normally installed
      application. This will occur automatically by using standard system
      install mechanisms. These entries will be removed upon uninstall of the
      Licensed Works using system uninstall
  mechanisms.


5)
            Supplier’s
      name, product names or logos, will not appear in the installation
      databases after the Licensed Works are
  installed.


6)
            An
      administrative user will have the ability to query, update, or delete the
      Licensed Works using the same standard mechanisms for doing these types of
      actions on the operating system.


.


e)       
Product/operating system supported:





***








f)       
National language support (“NLS”) version required: Licensed Works must be NLS
enabled -- messages must be located in a separate file ready for
translation.  Please see the Attachment entitled, “Globalization”, attached
hereto.





2. 
Documentation:


a)
        Internal: Supplier will provide
documentation as necessary for customer to enable APIs.  Supplier will
provide documentation reasonably necessary for instructional purposes for end
users or administrators including installation, configuration and
performance.  Supplier will provide documentation for functional
specification and functional capability.  Supplier will provide
documentation for Major Enhancements, Error Corrections and Basic
Enhancements.





b)
        External:  Supplier
will provide end user documentation as necessary for Buyer to support the
Licensed Work.  Supplier will provide documentation for Major
Enhancements, Error Corrections and Basic Enhancements








3. 
Other materials:


a)
        at Buyer’s request, Supplier
will provide education/training materials necessary to produce lucid, valid
documentation on all provided features/functions.





4. 
Delivery location and other delivery specifics:


a)  All items
will be delivered electronically








3.2           Identification
of Tools


Tools for
the Licensed Work are identified below. Supplier will update this list for all
changes as soon as practicable after the change is identified.


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Description
            Part
      Number /
              Model
              Number
            Version
      /
              Release
            Owner1
      No Tools23456





3.3
            Error
      Correction Warranty Period


Supplier
will provide Buyer, at no charge, Basic Enhancements and Error Corrections to
the Licensed Work for ***.





3.4
            Major
      Enhancement Warranty Period


Supplier
will provide Buyer, ***
Major Enhancements to the Licensed Work ***.





3.5
      Licensed Works Integration
Requirements





3.5.1
      General


The
Licensed Work must be able to be incorporated into the Product.  All
features of the Licensed Work must be able to be exercised without requiring use
of tools or user-interfaces other than those delivered by Supplier to Buyer for
inclusion in the Product, or those provided in the Licensed Work and explicitly
selected by Buyer.





3.5.2
      Branding


Buyer
will generate branding and product identification materials for the
Product.  The Licensed Work will not express any user interface or
other end-user viewable information that includes the Supplier’s branding or
identity, except as mutually agreed in writing by the parties.





3.5.3
      Management


Any and
all management and monitoring interfaces, including both programmatic,
command-line interfaces, and management user-interfaces which are included or
used in the Licensed Work will be documented by Supplier and available by
Supplier to Buyer for use in the Product. This documentation will be delivered
in English.





3.5.4
      Proxy/Registrar


The
Licensed Work must support compatibility with the Buyer-supplied proxy/registrar
using the SIP, as follows:





a)  Buyer-supplied
SIP proxy/registrar must be able to participate in all call paths leading to the
bandwidth management functionality described in Section 3.1 and interactions
provided in the Product.


b)  Where
there are compatibility errors between the Buyer-supplied proxy/registrar and
the Licensed Work, the parties shall confer to determine the proper point of
resolution for the error.





3.5.5
      Client Endpoint


The
Licensed Work must support compatibility with the Buyer-supplied client endpoint
as follows:





a)  Buyer-supplied
client endpoints, which register with the Buyer-supplied proxy/registrar, must
be bandwidth managed as described in Section 3.1. In the event there are
compatibility errors between the Buyer-supplied proxy/registrar and the Licensed
Work, the parties shall confer to determine the proper point of resolution for
the error.





3.5.6
      Coexistence


The
Licensed Work must support coexistence with Buyer-created components on the same
server machine.  The Licensed Work must provide that all communication
ports and IP addresses are configurable at time of deployment to avoid
conflict.


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3.5.7
      Serviceability


The
Licensed Work must support a sufficient level of error reporting and problem
determination as follows:


a)  All
user-facing messages must follow a consistent format used by IBM WebSphere
products.  For example, IBM standard practice guidelines and the text
for runtime generated messages start with “CCCCNNNNS” where CCCC is a four
character component identifier (e.g. AVNM), NNNN is a numeric identifier within
that component, and S is an optional severity indicator (I =
Informational;  W = Warning;  E = Error)


b)  Logging
and tracing must follow the WebSphere format if the module is to be deployed on
WebSphere software. Otherwise, the module must have comparable logging and
tracing facility for problem determination.


c)  Licensed
Work must exploit standardized Sametime software logging and tracing conventions
and formats


d)  System-wide
logging must deliver all calls and resources used to a centralized database for
reporting and monitoring purposes.





4.0         Rights
in Licensed Works





4.1
            Licensed
      Works


Supplier
grants Buyer and Buyer Personnel a nonexclusive, worldwide, perpetual,
irrevocable license to use, have used, execute, reproduce, transmit, display,
perform, to prepare and have prepared derivative works of Licensed Works, to
transfer, distribute, and sublicense Licensed Works and such derivative works in
Object Code form only, and documentation, in any medium or distribution
technology, and to grant others the rights granted herein.





4.2
            Patents


(a)
            Covenant
      Not to Sue from Buyer to Supplier





“Avistar
Product” shall mean the Licensed Work as (i) Finally Accepted as the phase 1
Deliverable, and (i) Finally Accepted as the phase 2 Deliverable.





“IBM
Patents” shall mean all patents throughout the world, including reissues,
reexaminations, utility models and typeface design patents and registrations
(but not including any other design patents or registrations):


(a)                 issued
or issuing on patent applications entitled to an effective filing date prior to
one year after Final Acceptance of the phase 2 deliverable; and


(b)                 under
which patents or the applications therefor (including continuations,
divisionals, or continuations-in-part) Buyer or any of its Subsidiaries has as
of the Effective Date, or thereafter obtains, the right to grant immunities to
Supplier of or within the scope granted herein.





***





Buyer on
behalf of itself and its Subsidiaries grants to
Supplier and its Subsidiaries, and to
its and their distributors, customers and users, mediate and intermediate, a
covenant not to commence or maintain any suit for infringement of those claims
of those IBM Patents that read on  the Avistar Product (hereinafter
“Immunized Claims”). This immunity under Immunized Claims shall also apply ***, and
shall  apply to such Avistar Product *** regardless of whether they
are used in combination with other hardware or software by Supplier, its Subsidiaries, and its
and their distributors, customers and users, mediate and
intermediate.








(b)  Patent
License from Supplier to Buyer





Additional
licenses to patents and patent applications that are owned or licensable by
Supplier, now or in the future, are set forth in a separate Patent License
Agreement, executed by the parties concurrently herewith.  For the
avoidance of doubt, such patent license includes (but is not limited to) a grant
of license to Buyer for the Licensed Works and Tools.  In the event of
any conflict between the terms of the Base Agreement, this SOW, and the separate
Patent License Agreement, the separate Patent License Agreement shall control as
to the patent licenses granted to Buyer.


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4.3
            Externals


Supplier
grants Buyer and Buyer Personnel a nonexclusive, worldwide, perpetual,
irrevocable, paid-up license to prepare and have prepared derivative works of
the Externals, and to use, have used, execute, reproduce, transmit, display,
perform, transfer, distribute, and sublicense the Externals and such derivative
works, in any medium or distribution technology, and to grant others the rights
granted herein.





5.0
            Description
      of Related Deliverables and
Services


5.1
            See
      the Attachment entitled, “Sales Enablement Plan”,
      for the Services and Deliverables related to sales enablement that
      Supplier will provide to Buyer. These Services and Deliverables will be
      considered complete upon Buyer’s
acceptance.





5.2
            ***, Supplier will
      provide to Buyer testing, maintenance, and support for the Deliverables,
      as described in the Attachment entitled “Testing, Maintenance and
      Support.”





5.3
            Developed
      Works


All
Developed Works belong exclusively to Buyer and are works made for hire. If any
Developed Works are not considered works made for hire owned by operation of
law, Supplier assigns the ownership of copyrights in such works to
Buyer.


Within
*** of the Effective
Date of the SOW, Buyer and Supplier shall produce together the specifications
and project plan associated with the work to develop the *** displayed within the *** that will use the *** for *** specified in this
SOW.  The ***
will also designate responsibilities and tasks to be undertaken by each of the
parties. If Buyer elects to obtain the *** will deliver the *** consisting of a *** used to *** exposed by the *** and any such *** and related materials will
be deemed a ***.  Supplier will
undertake such work in accordance with the schedule set forth in *** and as mutually agreed in
the ***, and will
deliver the *** in *** of the schedule set forth
in ***.  In
the absence of an ***,
Buyer agrees to provide Supplier *** of *** in connection with the
***. There will be *** by either party in
connection with the development of the  ***or the ***.





6.0
            Supplier’s
      Responsibilities


6.1
            In addition
      to delivering Licensed Works, Tools and other Deliverables and Services on
      schedule, Supplier
will:


a)  participate
in progress reviews, as requested by Buyer, to demonstrate Supplier's
performance of its obligations;


b)  maintain
records to verify authorship of Licensed Works *** after the termination or
expiration of this SOW. On request, Supplier will deliver or otherwise make
available this information in a form specified by Buyer;


c)  as part
of Supplier's importation requirements, provide to Buyer on the commercial
invoice:


i.
            the
      Harmonized Tariff Code of the importing country for every Product;
      and


ii.
            an
      invoice description that provides enough detail to verify the categorical
      classification of every Product.


d)  for all
Supplier Software, supply Buyer with a report outlining the current version
numbers and anticipated cessation of support dates for that Software. This
report must be provided on a biannual basis or more frequently if required by
Buyer.





6.2
            Supplier's
      Use of Subcontractors


Supplier
may subcontract Services to be performed hereunder. Notwithstanding this
subsection, Supplier's use of subcontractors will not relieve Supplier of the
responsibility for the subcontractor's performance, and Supplier's obligations
and responsibilities assumed under this SOW will be made equally applicable to
subcontractors. Buyer reserves the right to reject Supplier's use of a
subcontractor in performance of this SOW for any reason.





6.3
            Source Code
      Escrow





6.3.1
            Escrowed
      Materials


For each
Licensed Work, Supplier agrees to place in escrow in accordance with the terms
and conditions of a separate Source Code Custodial Agreement ("SCCA"), the
following materials: (i) two (2) copies of the Licensed Work in machine-readable
format, including both Source Code and Object Code; (ii) one (1) complete set of
the Documentation related to the Licensed Work in both hard copy and
machine-readable form; (iii) one (1) copy of a comprehensive list of all items
in the development environment indicating those items which are commercially
available on reasonable terms through readily known sources; (iv) one (1) set of
the development environment except those items identified pursuant to 3 above as
being commercially


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available
on reasonable terms through readily known sources; (v) one (1) copy of a
comprehensive list of all Source Code modules of the Licensed Work.





6.3.2
            Release
      Events and Rights in Released Escrowed
Materials


Supplier
will notify Buyer *** of
the occurrence of a Triggering Event as defined in the relevant SCCA. Buyer is
granted a nonexclusive, worldwide, perpetual, irrevocable license to prepare and
have prepared derivative works of Escrowed Materials, and to use, have used,
execute, reproduce, transmit, display, perform, transfer, distribute and
sublicense Escrowed Materials and such derivative works, in any medium or
distribution technology for the purposes of maintaining and providing Basic
Enhancements to the Licensed Work.





6.3.3
            Confidential
      Treatment


Buyer and
Supplier will treat the release of the Escrowed Materials as a disclosure of
Confidential Information under the parties’ existing Confidential Disclosure
Agreement related to the Licensed Work, or if none, under Buyer’s then standard
Confidential Disclosure Agreement.





6.4
            Asset
      Protection


In the
event that assets are loaned to Supplier and there is no separate loan agreement
in place between Buyer and Supplier for those assets, Supplier will be
responsible for risk of loss and for the return of those assets to
Buyer.





6.5
            Third
      Party Code and Certificate of Originality
  Obligations


(a)
            Supplier
      will use all commercially reasonable efforts to disclose to IBM in writing
      the existence of Third Party Code that is included in or is provided in
      connection with the Deliverables.  Supplier represents and
      warrants on an ongoing basis that, before entering into this SOW, Supplier
      has disclosed to Buyer in writing the existence of any third party code,
      including without limitation open source code and freeware, ("Third Party
      Code") that is included in or is provided in connection with the
      Deliverables and that Supplier and the Deliverables are in compliance with
      all licensing agreements applicable to such Third Party
    Code.





(b)
            Supplier
      represents and warrants on an ongoing basis that, 1) at least *** before including any
      Third Party Code in any modifications, new releases, or new versions of
      the Deliverables under this SOW, Supplier will disclose to Buyer in
      writing the existence of such Third Party Code, including providing a
      Vendor Certificate of Originality (“COO”), a template of which is provided
      as an attachment hereto, that specifies such Third Party Code with
      particularity, including separately specifying with particularity any open
      source code or freeware in binary form (e.g., binary dependencies) that is
      included within any open source code or freeware specified in the COO, to
      Buyer at least ***
      prior to each of: (i) Supplier’s delivery of the Licensed Work to Buyer
      for Acceptance Testing, and (ii) Supplier’s delivery of each Major
      Enhancement to the Licensed Works in accordance with the Schedule in
      Section 10, and 2) modified Deliverables or new releases or new versions
      of the Deliverables including Third Party Code will be in compliance with
      all licensing agreements applicable to such Third Party Code. Supplier
      will not provide to Buyer any Deliverables or modifications thereto or new
      releases or versions of Deliverables, that include Third Party Code,
      unless Buyer has approved the inclusion of such Third Party
      Code.





(c)
            Supplier
      will not provide to Buyer any Deliverable that includes any of the
      following types of Third Party Code, unless Buyer has approved their
      inclusion in advance in writing, such approval not to be unreasonably
      withheld or delayed:


•
Material licensed under the "GNU General Public License" ("GPL") or a
substantially similar license;


•
Material licensed under the GNU Library or "Lesser" General Public License
("LGPL") or a substantially similar license;


•
Material that requires the Deliverable, or portions thereof, to be licensed to
End Users by parties other than Buyer and/or under specific additional licensing
terms and conditions (other than mere notice provisions)


which are
required to be agreed to by End Users; or


•
Material that Supplier knows or has reason to know to be the subject of a claim,
demand, suit, action or proceeding in which it is alleged that such software
infringes the intellectual property rights of a third party.





(d)  With
      regard to types of Third Party Code other than those identified in Section
      6.5 (c), Supplier and Buyer shall confer in good faith regarding any
      commercially reasonable concerns which Buyer has with regard to their
      inclusion in the Licensed Work, and Supplier agrees to take such
      commercially reasonable steps as may be requested by
  Buyer


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in
      good faith in order to remediate the code or otherwise address any such
      commercially reasonable concerns.





6.6
            Financial
      Reporting


Upon
Buyer request, Supplier will provide a Dun and Bradstreet report or similar
report at Supplier's expense to Buyer. Submission of the Dun and Bradstreet
report must be initiated through the IBM Global Procurement Supply Portal and
routed directly from Dun and Bradstreet to Buyer. Supplier will be responsible
for the full cost of the report at the price established by Dun and Bradstreet,
and no rebate, refund or other discount which may be applicable to Buyer or its
Affiliates will apply to the price of the report purchased by
Supplier.





6.7
            Lab
      Support


In order
to facilitate Buyer’s validation of requirements and completion of the Product,
Supplier agrees to make available to Buyer mutually agreed testing lab
facilities.  These facilities will include access to audio/video
equipment and configured instances of the Licensed Work
elements.  These facilities will be employed both to verify features
of the Licensed Work, and to test integrated features of the
Product.  The location of the lab resources, and the timing of their
use, will be determined and documented by the joint technical team.





Additionally,
Supplier agrees to provide reasonable support to Buyer in the form of
documentation, information and guidance on best-practices in Buyer’s
establishment of lab deployments intended for use with the Product in Buyer’s
facilities.





7.0
            Technical
      Criteria for Final Acceptance





7.1
      General


The
Deliverables will be subject to a process whereby compliance with the technical
requirements set forth is verified for purposes of determining Final Acceptance
of the Deliverables.  Buyer and Supplier agree that this process shall
consist of preliminary testing, to be followed by an iterative process requiring
coordination of the development schedules of the parties.  After the
preliminary testing is completed, Supplier agrees to correct errors and conduct
subsequent testing, as agreed upon through the joint technical
process.  This process will continue until the Deliverable meets the
Final Acceptance criteria.





7.2
      Supplier Testing


Supplier
will perform the following tests upon the Deliverable:





1.
            component
      testing


2.
            functional
      verification testing


3.
            system
      testing


4.
            performance
      and scalability testing





Upon
Buyer's reasonable request, specific tests in each of the foregoing areas will
be performed by Supplier.





During
the iterative development process, prior to each code delivery, Supplier will
perform a set of tests to ensure a minimum level of stability before delivering
to Buyer.  Supplier will provide to Buyer, concurrent with each
iterative delivery of a Deliverable, all test reports associated with that
delivery of the Deliverable.





7.3
      Preliminary Testing Criteria


Preliminary
testing during the development process shall be performed by Supplier and based
upon the operation of the Deliverable and a set of Product operations mutually
agreed by the parties.  The criteria for the preliminary testing shall
consist of the following:





***





7.4
      Iterative Acceptance Testing


After
successful completion of the preliminary tests, the Deliverables will be subject
to further rounds of acceptance testing (“Iterative Acceptance Testing”)
to be conducted by both parties. Each party shall provide necessary technical
personnel and resources at the site(s) where Iterative Acceptance Testing is
performed.  The Iterative Acceptance Testing will be performed against
both the Product and the Deliverables.  The timing for these tests
will be based on ongoing deliveries of the Deliverables and shall be performed
promptly after such deliveries on mutually agreed dates.  Supplier
agrees to resolve


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all
errors found during Iterative Acceptance Testing prior to Final Acceptance (see
Section 7.5
below).  In cases where the need or timing of an Error Correction is
uncertain, the joint technical team will determine the proper resolution, and
can mutually agree whether to correct or defer correction for any given
error.





7.5
      Final Acceptance


Supplier
shall deliver the Deliverable that materially complies with the specifications
stated herein for final acceptance.    Final Acceptance will
occur when the Deliverables delivered by Supplier materially meet all functional
requirements, non-functional requirements and integration requirements set forth
and when all errors (other than Severity Level 4 errors) identified by Buyer as
requiring correction in Iterative Acceptance Testing have been verified as
corrected  (“Final
Acceptance”).





Buyer
shall have *** after
receipt of Deliverable to complete Final Acceptance tests. Upon achievement of
satisfactory test results in accordance with the criteria defined in this SOW,
Buyer shall notify Supplier of its Final Acceptance of the Deliverable in
writing *** after test
completion. Buyer shall also notify Supplier of any error *** after test completion.
Buyer may reject the Deliverable if it does not comply with the Final Acceptance
criteria set forth in this section.   A failure by Buyer to
provide written acceptance or rejection within the timeframes specified above
shall be deemed Final Acceptance.





Should
Buyer reject the Deliverable submitted for Final Acceptance due to
non-conformance with the test criteria specified in this document, Supplier
shall use all reasonable endeavors to promptly remedy such deficiencies and
shall again deliver the Deliverable for Final Acceptance testing. The parties
shall then repeat the Final Acceptance test procedure set forth above until the
Deliverable has achieved Final Acceptance.





7.6
      Technical Events


The
following list of events will be included in the project plan.





Design Complete: All technical
issues regarding the use of the Deliverables, including deployment models,
integration models, required interface or functional changes or enhancements to
the Deliverables, etc. have been specified and agreed to through the joint
technical process.





Delivery Schedule Complete: A
schedule for both interim deliveries of the Deliverables, and Iterative
Acceptance Testing activities is agreed to through the joint technical
process.





Final Delivery: Receipt of the
expected final version of the Deliverables, which is intended to meet all Final
Acceptance criteria.





Final Acceptance Complete:
Successful validation of all Final Acceptance criteria.





7.7
Waiver of Acceptance Testing


Buyer
may, at its sole discretion, waive requirements for its acceptance testing of
the Deliverables. Any such waiver must be in writing and signed by Buyer.
Buyer's testing does not relieve Supplier of its obligations under this
Agreement.





8.0
            Quality
      Measurements





8.1    Supplier
represents that it has a product and service quality program
that  includes:


1)
            performance
      targets;


2)
            assessment
      of engineering, development and test
processes;


3)
            configuration
      and change management processes;


4)
            assessment
      of the quality of Deliverables, Products and
  Services;


5)
            documents
      non-conformances; and


6)
            processes
      to correct errors or other non-conformances. Supplier will periodically,
      as negotiated, provide Buyer its standard product development life cycle
      and error metrics. An example of the data of interest is included in the
      Attachment entitled “Sample Data Collection Form for
      Supplier”.


Supplier
also represents that it qualifies or will qualify during the Term of this
Agreement as a Software Engineering Institute's (SEI) Capability Maturity Model
Integration - Software Engineering (CMMI-SW) Level  2 development
organization.


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8.2    The
parties agree that the Attachment entitled "Quality Requirements for Customized
or Developed Works" is hereby incorporated by reference into this
Agreement.





9.0
            Supplier’s
      and Buyer’s Responsibilities


9.1
            Upon
      mutual agreement, within ***, the parties will
      conclude a project plan, which will include engagement guidelines for the
      parties’ technical teams and assistance Buyer may provide to Supplier
      under this Agreement.


9.2
            The
      parties may meet together on a periodic basis, as agreed, but no more than
      one time per quarter, to discuss the progress Buyer has made toward
      reaching Buyer’s initial net revenue of *** as described in
      Section 11.3.





10.0
            Schedule


The
relevant milestones, completion dates, and terms associated with this SOW
are:


MILESTONES
            DATE1.
            Initial
      delivery of Tools listed in Section
    3.2
            TBD2.
            Delivery
      of the other Deliverables (other than the Licensed Work, Tools,
      etc.)
            TBD13.
            Receipt
      of the completed Certificate of Originality for the Licensed
      Work
            Prior
      to or upon 1)At least *** days prior
      to  1) Supplier’s execution of the SOW, 2) Supplier’s delivery
      of the Licensed Work and Developed Works to Buyer for Acceptance Testing,
      and 3) 2) Ssupplier’s delivery of each Major Enhancement to the Licensed
      Works24.
            Feature
      complete delivery, phase 1
            ***35.
            Final
      Delivery for Acceptance Testing, phase 1 Deliverables
            ***46.
            Final
      Acceptance phase 1
            *** business days of
      Final Delivery of phase 1 Deliverables57.
            Feature
      complete delivery, phase 2
            ***68.
            Final
      Delivery for Acceptance Testing, phase 2 Deliverables
            ***79.
            Final
      Acceptance phase 2
            *** business days of
      Final Delivery of phase 2
Deliverables





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11.0
            Payments





11.1
            Fixed
      Payment


In
partial consideration for the licenses granted by Supplier in the Patent License
Agreement referenced in Section 4.2(b) of this SOW, Buyer will pay Supplier a
one time fixed payment of three million dollars (USD $3,000,000.00). Such
payment will be made net sixty (60) days after the Effective Date of this
SOW.





11.2
            Pre-paid
      Royalties


In
consideration for the *** of license fees and
Software Subscription or Metered Use Offering fees received by Buyer for the
Product(s) beginning in the calendar quarter in which a Product becomes
generally available, Buyer will pay Supplier the following pre-paid,
non-refundable royalties as a bulk purchase for Licensed Works and the patent
license granted in the Patent License Agreement referenced in Section 4.2(b)
above  upon Final Acceptance of Deliverables as set forth
below:





Date/Event:                                                                                                                                        Payment:


Within
*** following Final
Acceptance of phase 1
Deliverables                                                                                                                                          USD
$1,500,000.00


Within
*** following Final
Acceptance of phase 2
Deliverables                                                                                                                                          USD
$1,500,000.00





11.3
            Additional
      Royalty Payments


Beginning
in the first calendar quarter in which net revenue recorded by Buyer for the
Product(s) ***Buyer
will pay Supplier an additional royalty as follows (“Additional Royalties”) for
Licensed Works and the licenses granted in the Patent License Agreement
referenced in Section 4.2(b) above :





(a)  When a Product is
licensed to end user customers, Buyer will pay Supplier an Additional Royalty
equal to two percent (2%) of net revenue recorded by Buyer for each authorized
copy of the Product licensed to an end user customer by Buyer or Buyer
Personnel;





(b)  When a Product is
combined with other products or services and offered to end user customers
(“Product Bundle”), Buyer will pay Supplier an Additional Royalty equal to two
percent (2%) of the net revenue recorded by Buyer for each authorized copy of
the Product Bundle licensed to an end user customer by Buyer or Buyer Personnel,
which license fee will be based on the proportionate value of the Product to the
Product Bundle as determined by Buyer in its commercially reasonable
discretion;





(c)  When a Product is
offered to end user customers as part of aSoftware
Subscription or Metered Use Offering, Buyer will pay Supplier an Additional
Royalty equal to two percent (2%) of the net revenue recorded by Buyer for each
such Software Subscription or Metered Use Offering sold to an end user customer
by Buyer or Buyer Personnel, which license fee will be based on the
proportionate value of the Product to the Software Subscription or Metered Use
Offering as determined by Buyer in its commercially reasonable
discretion;





(d)  Buyer shall not owe
any Additional Royalties to Supplier for internal use of any Product by Buyer or
Buyer’s Affiliates and any such use of the Product(s) will not be included in
any calculation of ***
Additional Royalty trigger amount.





11.4
            Lower
      Royalty Payment


Buyer may
request a lower Additional Royalty for the Products when a licensing transaction
requires a substantial discount. If Supplier agrees, both parties will sign a
letter specifying the licensing transaction and its lower Additional Royalty
payment.





11.5
            Payment
      Terms


Buyer
will pay supplier Additional Royalties based upon net revenue recorded by Buyer
in a *** for the
Product(s). Payment will be made in US dollars, *** during which net revenue
is recorded and recognized by Buyer for a Product and/or Service sale, unless
the last day of the month falls on a weekend or holiday, it will then be made on
the next business day. In the US, a royalty payment quarter ends on the last day
***. Outside of the US,
a royalty payment *** is
defined according to Buyer’s current administrative practices. Royalties will be
paid less adjustments and refunds due to Buyer. Buyer will provide a statement
summarizing the royalty calculations with each payment.


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12.0
            Communications


All
communications between the parties will be carried out through the following
designated coordinators. All notices required in writing under this Agreement
will be made to the appropriate contact listed below at the following addresses
and will be effective upon actual receipt. Notices may be transmitted
electronically, by registered or certified mail, or courier. All notices, with
the exception of legal notices, may also be provided by facsimile.





Business
Coordinators


FOR
      SUPPLIER
            
            FOR
      BUYERName
            ***
            Name
            ***Title
            ***
            TitleAddress
            ***
            AddressPhone
            ***
            PhoneFax
            
            FaxE-mail
            ***
            E-mail





Legal
Coordinators


FOR
      SUPPLIER
            
            FOR
      BUYERName
            
            Name
            ***Title
            
            Title
            ***Address
            
            Address
            ***Phone
            
            Phone
            ***Fax
            
            Fax
      (Fax notice shall be valid only when verbal confirmation of receipt is
      obtained.)
            ***E-mail
            
            E-mail
            ***





Technical
Coordinators


FOR
      SUPPLIER
            
            FOR
      BUYERName
            ***
            Name
            ***Title
            ***
            Title
            ***Address
            ***
            Address
            ***Phone
            ***
            Phone
            ***Fax
            ***
            Fax
            ***E-mail
            ***
            E-mail
            ***





13.0
            Electronic
      Commerce


Unless
previously submitted by Supplier, in order to initiate electronic transfer of
payments associated with this SOW, Supplier will complete the attached form
entitled “Authorization for
Electronic Funds Transfer” and fax the completed form to Accounts Payable
at the number included on the form.





14.0
            Accessibility


Supplier
shall disclose to Buyer the extent to which Deliverables are
accessible to persons with disabilities, either directly or through assistive
technology. Supplier will complete and deliver to Buyer either the applicable
IBM Accessibility checklist (preferred), Web Content Accessibility Guidelines
(WCAG) checklist or Information Technology Industry Council US Section 508
Voluntary Product Accessibility Template, *** of the effective date of
this Agreement. Supplier shall update the accessibility documentation provided
to Buyer pursuant to the preceding sentence to address any new versions or
releases of the Deliverables supplied to Buyer within ***. Failure of the Deliverablesto
operate in accordance with the accessibility documentation provided by Supplier
will be deemed a material breach of this SOW.


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15.0
            Supplier
      Representations


Supplier
represents and warrants that any and all representations made and information
provided by Supplier to Buyer and Affiliates in connection with this SOW,
including that information provided within or in support of an RFP/RFQ, is
accurate.





16.0
            Modification of Certain
      Provisions in the Base Agreement as they Apply to this
      SOW


For
      purposes of this SOW (and any WAs issued hereunder) only, the following
      Sections and Subsections of the Base Agreement are modified as
      follows:





16.1
            In Section 5.3
      Royalty Calculations,at the end of the first sentence, insert “in accordance with the
      relevant SOW”.


16.2
            In
      Section 7.2 Warranty
      Redemption, in the second sentence after “If Supplier fails to do
      so” insert “within a reasonable period of
time”.


16.3
            In
      Section 9.5 Patents, at the end of
      the sentence insert “unless otherwise stated in a related
      SOW”.


16.4
            Section
      10.1 General
      Indemnification,is deleted in its entirety and replaced with the
      following:


“Each
party will defend, hold harmless and indemnify, including legal fees, the other
party and its Personnel  against third party claims that arise or are
alleged to have arisen as a result of negligent or intentional acts or omissions
or breach of any term of this Agreement by a party hereunder.”


16.5
            Section
      10.3 Exceptions to
      Indemnification is deleted in its entirety and replaced with the
      following:


“Notwithstanding
the provisions of this Section, Supplier assumes no liability for (a)
infringement claims arising from on the following circumstances provided such
infringement would have been avoided in the absent the following ac-tions: (i)
the combination of the Deliverables with materials other than Products; (ii) any
modifications to the Deliver-ables unless such modification was
made  by Supplier or contemplated in a SOW; (iii) Supplier’s
implementa-tion of a Buyer originated design.”


16.6
            In
      Section 11.0 Limitation
      of Liability between Supplier and Buyer, the first paragraph is
      deleted in its entirety and replaced with “The foregoing provisions of the
      above Section 10 state the entire liability and obligations, and the sole
      and exclusive remedy of, the parties to each other, with respect to any
      actual or alleged infringement of any intellectual property right by each
      party. In no event will either party be liable to the other for any lost
      revenues, lost profits, incidental, indirect, consequential, special or
      punitive damages.”


16.7
            Section
      14.1 Termination of this
      Base Agreementis retitled Termination of this Base
      Agreement or SOW for Cause. In the first sentence after the words
      “Base Agreement” insert “or SOW”.


16.8
            In
      Section 14.2 Termination
      of a SOW or WAbefore the first sentence, insert “After the initial
      five (5) year term of this SOW.” In bullet 1, after “with Cause” insert
      “in accordance with Section 14.1 above” and delete “effective
      immediately”.


16.9
            At
      the end of Section 12.0 Supplier and Supplier
      Personnel, bullet 3, insert “A former employee shall be defined as
      a person who was an employee of Buyer within a 24-month period prior to
      the date of assignment under an SOW or WA (“Former
      Employee”).”


16.10
            In
      Section 15.2 Assignment, after the
      first sentence, insert “The rights and liabilities of the parties hereto
      will bind and inure to the benefit of permitted successors or
      assigns.”


16.11
            Section
      15.6 Ethical
      Dealings is deleted in its entirety and replaced with the
      follow:


“The
parties will each be familiar and will strictly comply with all laws and
regulations on bribery, corrup-tion, and prohibited business
practices.  Neither party (including its Affiliates)  will
offer, promise or make or agree to make, directly or indirectly, (a) any
political contributions of any kind or any payment to or for the benefit of any
public official, whether elected or appointed, (b) any payments for gifts,
meals, travel or other value for a government employee or his/her family members
or (c) any payments or gifts (of money or anything of value) to anyone for the
purpose of influencing, or inducing anyone to influence decisions in favor of,
the other party or any of its Affiliates.  Neither party shall
reimburse the other for any such politi-cal contributions, payments or
gifts.”


16.12
            Section
      15.7 Exchange of
      Information is deleted in its entirety and replaced with the
      following:


“All
information which either party has provided the other party hereunder prior to
the Effective Date, or subsequently provides to the other party in connection
with this Agreement and the transactions and matters contemplated hereby,
including any prior technical, sales or client information, shall be governed by
that certain Confidential Disclosure Agreement executed, either previously or
concurrently with this Agreement, between the parties dated 02/26/2008 (the
"Non-Disclosure Agreement"). Such information shall be used by the parties
solely for the purpose of performing its obligations to under this Agreement as
provided herein.  The term of the Non-Disclosure Agreement is hereby
extended for the later of (a) the term specified in the Non-Disclosure
Agreement; or (b) the term of this Agreement. The parties


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will not
publicize the terms of this Agreement, or the relationship, in any advertising,
marketing or promotional materials without prior written consent of the other
party except as may be required by law, provided the party publicizing gives the
other party reasonable prior notice to allow the other party a reasonable
opportunity to obtain a protective order. Supplier will use information
regarding this Agreement only in the performance of this Agreement. For any
Personal Data relating to Supplier Personnel that Supplier provides to Buyer,
Supplier has obtained the agreement of the Supplier Personnel to release the
information to Buyer and to allow Buyer to
use, disclose and transmit such information in connection
with this Agreement.The parties anticipate an announcement in connection with
the subject matter of this SOW.  Any announcement would require the
prior approval from both partiesThe parties acknowledge that as required by SEC
regulations, Supplier will file the appropriate 8K in connection with this
Agreement.”








ACCEPTED
      AND AGREED TO:
            
            ACCEPTED
      AND AGREED TO:International Business Machines
      Corporation
            
            Avistar Communications
      Corp.By:
            
            By:Buyer
      Signature                         
      Date
            
            Supplier
      Signature                      
      Date***Printed
      Name
            
            Printed
      Name***Title
      & Organization
            
            Title
      & OrganizationBuyer
      Address:
              ***
            
            Supplier
      Address:
              ***








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has been filed separately with the Securities and Exchange Commission.
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[Missing
Graphic Reference]





You
hereby authorize IBM to initiate credit entries to the account listed below in
connection with agreed upon Electronic Data Interchange (EDI) transactions
between our companies. You agree that such transactions will be governed by the
National Automated Clearing House Association (ACH) rules. This authority is to
remain in effect until IBM has received written notification of termination in
such time and such manner as to afford IBM a reasonable opportunity to act on
it. You also authorize the Bank listed below to verify your account information
as necessary to establish the EFT. IN NO EVENT SHALL IBM BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES AS A RESULT OF THE
DELAY, OMISSION OR ERROR OF AN ELECTRONIC CREDIT ENTRY, EVEN IF IBM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You are required to provide IBM
prompt written notice regarding the initiation, change, or termination of any
relationship in which you authorize a Third Party to receive payment from IBM on
your behalf. Payments made by IBM to a Third Party you authorize within this
form to accept payments on your behalf shall satisfy any payment obligation from
IBM to you and shall constitute payment in full for such
obligation.


This
agreement shall be governed by the laws of the State of New York.





TRADING
      PARTNER NAME:PHYSICAL
      ADDRESSStreet
      AddressCity,
      State, ZipCompany
      Tax ID NumberREMIT
      TO ADDRESS
            Only
      list a remit address if it differs from the address
  aboveStreet
      Address / PO BoxCity,
      State, ZipBANKING
      INFORMATION
            This
      must be a U.S. Domestic Bank to use this formName
      of BankStreet
      Address / PO BoxCity,
      State ZipTitle
      on Bank Account
              (Should
      Read Exactly as
      Listed on Bank Statement)EFT
      INFORMATION
            Obtain
      this information directly from your bankBank
      ABA Number:
              (also
      known as Bank Routing Number)
            ___
      ___ ___ ___ ___ ___ ___ ___ ___ (Must be 9 digit
number)Bank
      Account NumberYOUR
      BANK CONTACT
            Person
      at your bank who we can contact to verify Banking
    informationContact
      Name / Title
            Name:                                                                     Title:Contact
      Phone / Fax
            Phone:
      (
      )                                                              
      Fax ( )REMIT
      ADVICE OPTION
            Check
      One (See instructions for help)Remit
      advice sent directly to your EDI/WOI Mailbox
            _____
      1 ______________________________________________
              Fill in your EDI/WOI UserID aboveRemit
      Advice sent to your bank w/ payment
            _____
      2AUTHORIZATION
            Authorized
      Signature (MUST BE SIGNED)Signature:
      Date:
              Print
      Name:
              Title:
      E-Mail Address:
              Phone:
      ( ) Fax: ( )





A copy of a voided check is
recommended to validate your EFT banking information.


Please
fax this form along with a copy of a voided check to (845) 491-5368








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The
following instructions will assist you in filling out the EFT Authorization Form
accurately. All fields on this form are required for your request to be
processed. These instructions are designed to prevent errors which cause delays
in your EFT setup. If you have additional questions, please contact our EFT Team
at eftsetup@us.ibm.com or the AP Customer Service at 607-429-4848. Additional
information can be found on our internet website at
http://www-1.ibm.com/procurement/proweb.nsf/ContentDocsByTitle/United+States~EFT+Process?OpenDocument&Parent=EDI+Invoicing





Trading
Partner Name:


This is
the name of your company. Please fill out the name as it would appear on the
invoice.





Physical
Address:


This is
your company’s physical location.





Remit
To Address:


This is
the address for which your invoices read “send payments to:.” This is not to be
confused with your company’s physical location; however it may be the same. A
rule of thumb is: Where should payments be mailed in the event a paper check
needs to be cut?





Banking
Information:


This is
the physical location of the bank you use. If you use a branch, please supply
the branch’s address in this section. If proper information is not provided, it
will result in payment delays.





Title
on Bank Account:


This
should be the exact name as shown on your monthly Bank Statements. If the name
(Title) on your bank account differs from your company name, we will need a
written explanation on your company letterhead of the relationship between the
name on the account and your company name. This letter can be faxed in along
with the EFT Authorization Form.





EFT
Information:


We
recommend that you obtain this information directly from you bank. The
information needed is the Routing/ABA# (American Banking Association) of your
bank, and your company’s individual Account #. When asking the bank for this
information, let them know that IBM intends to send EFT payments to you account
using the ACH (Automated Clearing House). It is important to note that IBM is
sending an EFT payment through the ACH, we are not sending a Wire payment. Wire
payments and EFT payments are not the same. For additional backup, we recommend
that you send a copy of a voided check along with the EFT Form.





Bank
Contact:


This
should be an employee of your bank whom IBM can contact to verify that the
banking information supplied is correct.





Remit
Advice Option:


This
determines where IBM sends your remittance advice for payments that are sent
electronically. IBM offers two options:





Option 1 : You must
be an EDI / Forms Exchange (FOX) / WOI enabled supplier to use this option. IBM
will electronically send your remittance to your EDI/FOX/WOI in-box. You will
normally receive your remittance advice 1 to *** to the date the funds will
be available in your account. Please provide your EDI/FOX/WOI mailbox / userid
in the space to the right of the option 1 check-box. Option 1 is recommended for
all EDI/FOX/WOI users.





Option 2 : IBM will
electronically send your remittance to your bank along with the payment. When
choosing this option you will need to set up an agreement with your bank for
them to forward you this information. (IBM will be sending the payment and
remittance advice in an X-12 820 CTX file via the ACH).





Signature
/ Company Contact:


The form
must be signed by someone in your company who has the authorization to permit
IBM to electronically send payments to your company’s bank account. Please
provide all the requested information for this individual.





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has been filed separately with the Securities and Exchange Commission.
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Vendor Certificate
of Originality





This
questionnaire must be completed by a vendor (“You”) furnishing copyrightable
material, such as software, audio/visual works, written materials, etc.
(“Material”) to IBM. The acceptance of this questionnaire by IBM is a
prerequisite for the IBM final payment for the furnished Material.





Depending
on Your agreement with IBM, You may have an obligation to communicate additional
information to IBM that IBM may require for copyright registration and/or
enforcement of legal rights relating to the furnished material.





Please
leave no questions blank. Write "not applicable" or "N/A" if a question is not
relevant to the furnished material.





Summary
Information





Your name
and
address:                                           _____________________________________________________


_____________________________________________________


_____________________________________________________


_____________________________________________________


Name of
the
Material:                                               _____________________________________________________


IBM
Contract
No:                                    _____________________________________________________


IBM
Contract Administrator:
_____________________________________________________





A -Material
Identification


1.
Category of the material (Please check only one):


__a)
Software (including its related documentation)


__b)
Audiovisual Works


__c) Mask
Works


__d)
Written Materials excluding related documentation of a)-c)


__e)
Other (if other please identify):
_________________________________________________





If You
selected either "Software" or "Audio/Visual Works", please provide the names of
any software tools (e.g. compiler, software development tool, etc.) that were
used to create such Material:
___________________________________________________________________





2.
General description of the Material (including the description of any new
function that You contributed):
________________________________________________________________





3. What
was the date that the creation of Material was completed? (except for minor
error corrections,
etc.):___________________________________________________________





B - Newly Created
Material


The
questions in this section are targeted at any newly created portion
of the Material (“Newly Created Material”). If the Material includes any
pre-existing material, please provide detailed information for such pre-existing
material in section C (Pre-existing Material). All developers or creators of the
Newly Created Material must be specified in one of the following Categories I,
II or III. Unless otherwise indicated, Your employees include temporary and
supplemental employees who created or contributed to the creation of the
Material under contract or other agreement with You.


I. Was
any portion of the Newly Created Material created by Your employee(s) within the scope of their
work assignment or job function ("Category I") assignment? __Yes
__No





If You
checked Yes please provide a copy of any relevant employee agreement governing
the creation of intellectual property for Your company by the employee and
provide below the requested information for each employee. It is not necessary
to provide copies of the agreements actually signed by each employee as long as
you provide the terms of each agreement. For example, it would be sufficient to
provide blank employee agreement forms of the type actually completed by the
employee.





Name of
employee:____________________________________________________________


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Title:
_______________________________________________________________________





Name of
employee:____________________________________________________________


Title:
_______________________________________________________________________





Name of
employee:____________________________________________________________


Title:
________________________________________________________________________





(If there
is insufficient space to list all contributors, please attach an additional page
with the required information).


II. Was
any portion of the Newly Created Material created by Your employee(s) outside the scope of their
work assignment or job function ("Category II")? __Yes __No





If You
checked Yes please provide a copy of any relevant employee agreement governing
the creation of intellectual property for Your company by the employee and
provide below the requested information for each employee. It is not necessary
to provide copies of the agreements actually signed by each employee as long as
you provide the terms of each agreement. For example, it would be sufficient to
provide blank employee agreement forms of the type actually completed by the
employee.





Name of
employee:____________________________________________________________


Title:
_______________________________________________________________________





Name of
employee:____________________________________________________________


Title:
_______________________________________________________________________





Name of
employee:____________________________________________________________


Title:
_______________________________________________________________________





(If there
is insufficient space to list all contributors, please attach an additional page
with the required information).


III. Was
any portion of the Newly Created Material created for You by anyone other than
Your employees, including another vendor company, an independent contractor, a
subcontractor, a consortium or university ("Category III")? __Yes
__No





If You
checked Yes please provide a copy of any relevant agreement that you may have
governing the creation and/or license of the intellectual property for this
Material and the names and title of the individuals who contributed the
material. If the third party was a company, please provide the name and address
for the company.





Name:______________________________________________________________________


Title/Address:
_______________________________________________________________





Name:
_____________________________________________________________________


Title/Address:
________________________________________________________________





Name:
______________________________________________________________________


Title/Address:
________________________________________________________________





(If there
is insufficient space to list all contributors, please attach an additional page
with the required information).


1. Does
any portion of the Newly Created Material link to any libraries or other
software that is characterized as freeware, shareware or open source software
(“OSS Material”). For the purposes of this Certificate of Originality, open
source software is computer software programs whose source code is available for
inspection and use by anyone and is made available under a license that permits
recipients to copy, modify and distribute the program’s source code without
payment of royalty.





Common
examples of such licenses, include, but are not limited to, the GNU GPL and LGPL
licenses, the Mozilla Public License, Apache license, BSD License, MIT License,
Common Public License, etc.?


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__Yes
__No


If you
checked No please go to section C.





If you
checked Yes please, provide the following OSS Material information.


Is the
linking static or dynamic? ___static ___dynamic


OSS
Material Name:
______________________________________________________________


Source of
the OSS Material (e.g. a URL, company address, etc):
__________________________


_______________________________________________________________________________


License
Information (please attach a copy of the license):
_________________________________


Any
information that would be helpful to identify the ownership of the OSS Material
(e.g. Copyright notice, author’s name, contact information, etc.):
_______________________________





C -Pre-existing
Material





The
target of this section is any material that had been created by You or others,
before you entered into an agreement with IBM to create the Material
("Pre-existing Material"). Pre-existing Material includes, but is not limited
to, software, software libraries, textbooks, and publications that were used in
the creation of the Material provided by You to IBM.


1. Was
any portion of the Material composed of or derived from Pre-existing
Material?


__Yes
__No


If you
checked No go to section D.





2. Is any
portion of the Pre-existing Material owned by You? __Yes __No





If you
checked Yes please provide the name of the Pre-existing Material
________________________________________________________________________________





3. Is any
portion of the Pre-existing Material owned by a third party (excluding OSS
Material)? __Yes __No





If you
checked Yes please provide the following information:





Name of
Pre-existing Material:
______________________________________________________


Source of
the Pre-existing Material (e.g. a URL, company address, etc):
_______________________


_____________________________________________________________________________


License
Information (please attach a copy of the license):
_________________________________


Any
information that would be helpful to identify the source and ownership of the
material (e.g. Copyright notice, author’s name, contact information, etc.):
_______________________________


Have You
modified the third party Pre-existing Material? ___Yes ___No


If you
checked Yes, please briefly describe the nature of the
modifications____________________


____________________________________________________________________________


4. Is any
portion of the Pre-existing Material OSS Material? __Yes __No


If you
checked Yes please provide the following information:





Name of
Pre-existing Material:
_____________________________________________________


Source of
the Pre-existing Material (e.g. a URL, company address, etc):
____________________


______________________________________________________________________________


License
Information (please attach a copy of the license):
_______________________________


Any
information that would be helpful to identify the source and ownership of the
material (e.g. Copyright notice, author’s name, contact information, etc.):
_______________________________


Have You
modified the third party OSS Material? ___Yes ___No


If you
checked Yes, please briefly describe the nature of the
modifications_________________


____________________________________________________________________________





5. Does
any portion of the Pre-existing Material link to any OSS Material, including,
for example, by using an OSS Material source software development kit? __Yes
__No


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If you
checked Yes please, provide the following OSS Material information.


Is the
linking static or dynamic? ___static ___dynamic


OSS
Material Name:
______________________________________________________________


Source of
the OSS Material (e.g. a URL, company address, etc):
___________________________


_______________________________________________________________________________


License
Information (please attach a copy of the license):
_________________________________


Any
information that would be helpful to identify the source and ownership of the
material (e.g. Copyright notice, author’s name, contact information, etc.):
_______________________________








D
-External Characteristics including Icons (“External Characteristics”
include display screens, data formats, instruction or command formats, operator
messages, interfaces, images video, sound recordings, icons, etc.)





Were the
"External Characteristics" of the Material or any portion thereof copied or
derived from the pre-existing "external characteristics" of other software or
copyrightable material ("Pre-existing Externals")? __Yes __No


If You
checked No go to section E.


If You
checked Yes please provide the following information:





a) Type
of External Characteristic:
___________________________________________________


b) Name
of the External Characteristic:
________________________________________________


c) Source
of the External Characteristic:
_______________________________________________


d) Author
(if known):
______________________________________________________________


e) Owner:
_______________________________________________________________________


f)
License information (if applicable):
_________________________________________________


g) Please
identify or describe any pre-existing External Characteristics are known to you
that are similar in appearance to the External Characteristic(s) that you are
providing in the Material.
________________________________________________________________________________


________________________________________________________________________________





E
-Miscellaneous





1. Does
the Material conform to any particular technology standards? __Yes
__No


If You
checked yes please identify the name of such standard and standard
body.


Name of
Standard:____________________________________


Standards
body: ______________________________________





2.
Identify below, or in an attachment, any other circumstance which might affect
IBM's ability to reproduce and market this material, including:





a)
Confidentiality or trade secrecy of Pre-existing Materials included in the
Material:
____________________________________________________________________





b) Known
or possible royalty obligations to others arising out of the Material:
_______________________________________________________________________________





c) Other
circumstances: ____________________________________________________________
________________________________________________________________________________





Certification


By
submitting this form, You acknowledge that you have responsibility for and
direct knowledge of, development or creation of this Material and hereby certify
that:


a) All
statements made in this form are true;


b) This
Material does not contain any materials copied or derived from other code,
designs, document or other


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materials,
except as listed herein; and


c) All
newly written parts of this material are original work of Your employees and/or
third party under contract as specified herein.





Yes, I
certify to the above statements





____________________________________________________


Signature


Name:_______________________________________________


Title:
________________________________________________


Date:
________________________________________________





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Globalization (G11N)
Attachment





1.0
Definition of Terms


Bi-directional (BIDI)
languages means languages whose general flow of text proceeds
horizontally from right to left, but numbers, English, and other left-to-right
language text are written from left to right. Examples are Arabic, Hebrew, and
Yiddish.


Coded Character Set means a
set of unambiguous rules that establish a character set and the one-to-one
relationships between the characters of the set and their coded representations.
(ISO/IEC)


Code Page means a
specification of code points from a defined encoding scheme for each graphic
character in a set or in a collection of graphic character sets. Within a Code
Page, a code point can have only one specific meaning. Code Pages are defined to
support specific languages or groups of languages which share common writing
systems.


Double Byte Character Set (DBCS)
languagesmeans languages requiring a set of characters where each
character is represented by 2 bytes. Scripts such as Japanese, Chinese, and
Korean contain more characters than can be represented by 256 code points, thus
requiring 2 bytes to uniquely represent each character.


Globalization(G11N) means the
proper design and execution of systems, software, services and procedures to
allow the users to work throughout the world, and among people with different
languages, business requirements, and cultural practices. Globalization includes
multilingual, multinational, and multicultural considerations.


Internationalization (I18N)
means the process of producing a product (design and code) that is totally free
of any dependency on the language, script, culture, and Code Pages (Codes
Character Set). Strictly speaking, an Internationalized product is not usable in
any region of the world unless it is localized to that specific region. Also
known as National Language Enablement.


Localization means the process
of translating and/or enabling versions of internationalized programs or
platforms to support specific languages, scripts, coded character sets, and
cultural features. Localization includes country unique support (if necessary)
for a particular product.


Single Byte Character Set (SBCS)
languages means languages which express each Codes Character Set using 1
byte of data. Some examples are English, German, Greek, Arabic, Hebrew, Urdu,
and Farsi.


Translatable Text means text
visible to an end user of the software product in the form of panels, messages,
helps, icons, and clip art.





2.0  
Basic Support Requirements


2.1The Deliverables must
support code pages, character sets, input and output interfaces for required
languages and platforms as follows:


Required
platforms:





***


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Testing, Maintenance and
Support





1.0           Definitions





1.1                 APARmeans
the completed form entitled “Authorized Program Analysis Report” that is used to
report suspected Code or documentation errors, and to request their
correction.





1.2                 APAR Closing
Codesmeans the established set of codes used to denote the final
resolution of an APAR. Buyer will identify APAR Closing Codes prior to the start
of the maintenance obligations.





1.3                 APAR Correction
Timesmeans the objectives that Supplier must achieve for
resolution of errors and distribution of the correction to Buyer.





a.
            “Severity 1”requires
      maximum effort support until an emergency fix or bypass is developed and
      available for shipment to Buyer. Critical situations may require customer,
      Buyer and Supplier personnel to be at their respective work locations or
      available on an around-the-clock basis. The objective will be to provide
      relief to the customer within twenty-four (24) hours and provide a final
      solution or fix within seven (7) days;b.
            “Severity 2” must be
      resolved within ***;c.
            “Severity 3” must be
      resolved within ***;
  andd.
            “Severity 4” must be
      resolved within ***.





The
calendar days begin when Supplier receives the APAR and supporting documentation
and end when the Error Correction or other resolution is shipped to Buyer. Buyer
will consider exceptions from these objectives when warranted by technical or
business considerations.





1.4                 APAR Severity
Levelsmeans designations assigned by Buyer to errors to indicate the
seriousness of the error based on the impact that the error has on the
customer’s operation:





a.
            Severity 1 is a critical
      problem. The customer cannot use the Product or there is a critical impact
      on the customer’s operations which requires an immediate
      solution;b.
            Severity 2 is a major
      problem. The customer can use the Product, but an important function is
      not available or the customer’s operations are severely
      impacted;c.
            Severity 3 is a minor
      problem. The customer can use the Product with some functional
      restrictions, but it does not have a severe or critical impact on the
      customer’s operations;Andd.
            Severity 4 is a minor
      problem that is not significant to the customer’s operations. The customer
      may be able to circumvent the
problem.





1.5
            Developer
      Test Systemsmeans an appropriate configuration of installed
      hardware and software that Supplier maintains which is representative of
      typical customer installations for the Product. These Developer Test
      Systems will contain, at a minimum, the
  following:





a.
            the
      current and current minus 1 level of the Product:b.
            the
      current and current minus 1 level of prerequisite/co-requisite hardware
      and software that Buyer specifies to Supplier; andc.
            specific
      fix-packs as required.





The
Developer Test Systems will consist of the appropriate configured workstations
only unless Buyer specifies and provides Supplier other equipment at no
charge.





1.6                 Buyer Test
Systemsmeans an appropriate configuration of installed hardware and
software that Buyer maintains which is representative of typical Buyer customer
installations using the Product. These test systems will contain, at a minimum,
a


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level of
prerequisite/co-requisite hardware and software that is correspondent with that
of the Developer Test Systems.





1.7                 Maintenance Level
Servicemeans the service provided when a customer identifies an
error.





a.
            Level 1 is the service
      provided in response to the customer’s initial phone call identifying and
      error.b.
            Level 2 is the service
      provided to reproduce and attempt to correct the error or to find that the
      service provider cannot reproduce the error.c.
            Level 3 is the service
      provided to isolate the error at the component level of the Code. The
      service provider distributes the Error Correction or circumvention or
      gives notice if no Error Correction or circumvention is
    found.





1.8                 Problem
Determinationmeans the process of determining whether a problem is being
caused by hardware, software or documentation.





1.9                 Problem
Management Record (“PMR”)means a record created when a customer makes
the initial support request. This record becomes a part of the Problem
Management System database and records the essential information about the
customer question or problem.





1.10                 Problem
Management System ("PMS”)means an internal Buyer developed software
system used to record customer demographic information and encode data about the
reported question or problem. The PMS will handle the dispatching of the call
record. The PMS will provide management reports of the call activity, and the
recording and tracking of all questions and problems to final resolution. The
PMS will verify that each customer is "entitled" to program
support.





1.11                 Problem Source
Identificationmeans the process of determining which software or
documentation component is failing or attributing the failure to some external
cause such as a customer error or no trouble found.





2.0           Maintenance
and Support Responsibilities





2.1           The
parties will agree to the specific details of the process flow each will follow
to resolve customer calls for requests for support *** to the general
availability of the product.





2.2           Supplier
will provide Buyer electronic (soft copy) information on any known problems in
the Licensed Work and the work arounds and solutions, if available, *** of the Effective Date of
this SOW.





2.3           Product
customers will initiate requests for support by contacting Buyer. Buyer will
perform the following Level 1 support responsibilities, as described below.
Buyer will:


a.
            create
      the PMR;b.
            obtain
      from the customer a description of the problem, and verify its
      severity;c.
            search
      the Buyer data base for known problems;d.
            provide
      the available resolution if the problem is known;e.
            recommend
      local Buyer assistance as required;f.
            if
      no resolution, pass the PMR to Level 2; andg.
            update
      the PMR documenting Level 1
actions.





Buyer
will be the primary customer contact point for questions, problems and
assistance concerning the Product. Buyer may use a third party to perform its
obligations.





2.4           Thirty
(30) days prior to general availability of the Product, Supplier will establish
a process to check incoming electronic requests for Level 3 support at least
***.





2.5           Buyer
will perform the following Level 2 support responsibilities, as described below.
Buyer will:


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(a.)
            receive
      the PMR/APAR from Level 1;(b.)
            analyze
      problem symptoms and gather additional data from the customer as
      required;(c.)
            recreate
      the problem on the Developer Test System;(d.)
            determine
      if the error is due to improper installation of the Product by the
      customer;(e.)
            determine
      if the suspected error is due to prerequisite or operationally related
      equipment or software at the customer location;(f.)
            attempt
      a bypass or circumvention for high impact problems, i.e., Severity 1 and
      2:(g.)
            if
      no resolution and the problem appears to be a newly discovered Code or
      documentation error, create an APAR record.(h.)
            if
      Supplier requests, Buyer will assist Supplier in obtaining additional
      information or materials from the customer to support Level 3 Problem
      Determination, Problem Source Identification and problem resolution;
      and(i.)
            update
      the PMR, documenting Level 2
actions.





2.6           Supplier
will perform the following Level 3 support responsibilities, as described below.
Supplier will:


(a.)
            receive
      the APAR/PMR and supporting documentation and
materials;(b.)
            analyze
      the problem symptoms and diagnose the suspected error;(c.)
            notify
      Level 2 if additional information, materials or documentation are
      required;(d.)
            attempt
      to recreate the problem on the Developer Test System, if
      required:(e.)
            assist
      Level 2 in attempting to develop a bypass or circumvention for high impact
      problems, i.e., Severity 1 and 2;(f.)
            determine
      if Error Corrections are required to the Licensed Work;(g.)
            if
      Error Corrections are required to the Licensed Work, provide Error
      Corrections to Buyer in the format specified by Buyer;(h.)
            return
      all APARs to Buyer with one of the defined APAR Closing Codes assigned,
      including text describing the resolution of the error. In the event a Code
      error was found, provide the rationale for the closing of the
      APAR;(i.)
            provide
      resolution to APARs according to the assigned APAR Severity Level and
      within the defined APAR Correction Time. The APAR Correction Times include
      building, testing, certifying successful tests of Error Corrections, and
      packaging for shipment to Buyer any applicable Error Corrections in the
      format specified by Buyer;(j.)
            receive
      technical questions, and supporting documentation and
      materials(k.)
            analyze
      the technical questions and provide answers to Buyer;(l.)
            provide
      technical backup support to Buyer on the Product as provided above. In
      addition, Supplier will provide assistance in answering questions that may
      arise concerning the operation and use of the Licensed Work that cannot be
      resolved by Buyer; and(m.)
            close
      out the problem record with the
customer.





2.7           As
corrected versions become available, Supplier will provide a corrected version
of the Licensed Work that includes all Error Corrections to the Licensed Work.
Additional corrected versions of the Licensed Work will be provided as
determined and mutually agreed to by Buyer and Supplier in the event they become
necessary due to the frequency or severity of newly discovered defects In order
to provide Error Corrections, Supplier will maintain a current copy of the
Product.





2.8           Supplier
will maintain procedures to ensure that new Error Corrections are compatible
with previous Error Corrections.





2.9           Packaging
of Error Corrections and migration Code will be done as mutually agreed to by
Buyer and Supplier.





3.0           APAR
Origination and Correction


3.1           Generally
APARs will originate from Buyer and customers reporting problems. Supplier will
also report to Buyer as


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APARs all
valid errors discovered by Supplier or Supplier's customers. After receiving an
APAR, Buyer will assign an APAR number and Severity Level, and forward the APAR
to Supplier for actions.





3.2
            For
      verified APARs for the Licensed Work, Supplier will provide Error
      Corrections as set out below within the applicable APAR Correction
      Times:





a.
            the
      fix to the Object Code in machine-readable form including a hard copy
      description of the Error Corrections (which may include a paper submission
      of the Error Corrections);b.
            the
      Error Corrections to the source Code in machine-readable form that
      corresponds to the Object Code Error Corrections; andc.
            for
      a procedural work-around, the corrected procedure in machine-readable
      form.





3.3            Reader
Comment Forms received by Buyer that do not form the basis of an APAR will be
forwarded to Supplier for proper and prompt handling as
appropriate.





4.0           Training





4.1            At
Buyer’s request, Supplier will provide training on the Licensed Work, at its
expense, and at the scope and level of effort described below. This training
will be provided on Buyer's premises and will include Level 1 defect support
education.





5.0           General


5.1            Supplier
will provide to Buyer the name and phone numbers of Supplier's personnel to
contact when high priority problems are encountered outside of normal working
hours that require immediate assistance. Supplier's normal working hours are
defined as 8:30 AM to 5:00 PM, Monday through Friday, Eastern Standard
Time.





5.2            Supplier
will provide to Buyer, on request, information regarding the status of reported
APARs related to the Licensed Work.





5.3            It
is desirable that Buyer report APARs and status requests to Supplier via an
electronic interface and that Supplier send APAR Error Corrections status
updates and requests for additional documentation to Buyer via the same
interface. Buyer and Supplier will jointly plan the electronic system. Each
party is responsible for funding the costs of this interface at its
location.





5.4            Critical
situations may require the parties to use the telephone for immediate
communications. The parties will follow such communications via the electronic
interface for tracking and recording purposes. Each party is responsible for
funding the costs of this communication at its location.





5.5            In
circumstances where materials have to be exchanged using facsimile or courier
services, each party is responsible for funding the costs of these exchanges via
facsimile or courier services at it location.





5.6           Supplier will participate in monthly
telephone conference calls with Buyer to review the status and performance of
the parties' obligations. These calls may be scheduled more or less frequently
as agreed to by the Technical Coordinators. Each party is responsible for
funding the costs of these conference calls at its location.


Attachment





Sales
Enablement Plan





The
parties will use their reasonable efforts to develop a written, mutually agreed
sales enablement plan (the “Plan”) within *** of the Effective Date of
this SOW.   The sales enablement will include a training plan
that may include,   but is not limited to, the elements
identified in this annex.  This annex provides an initial framework
for planning purposes with the actual planning and implementation to take place
per the parties’ usual processes, and as agreed by the parties.





Under
this plan, Supplier will deliver a series of training sessions to correspond
with the relevant technologies licensed under this SOW applicable to sales,
technical sales, Buyer technical services organizations, and technical marketing
personnel.  The classes will be provided as train-the-trainer
sessions, limited to Buyer’s personnel, and held at a mutually acceptable
location. Buyer and Supplier will be responsible for their own respective travel
and costs for attending the training. Class size for each class is anticipated
to be up to ***
individuals, though Buyer may opt to include additional attendees at their
discretion.   Existing course descriptions, length and format
will be made available to Buyer during the joint planning, and changes to the
definition of the actual courses developed for the applicable new releases will
be communicated in writing after information becomes
available.   Supplier will also provide course materials to
Buyer, who may reuse such course materials in delivery of their courseware on
their offerings that incorporate the Licensed Works.  Course scope may
be reduced to include only the content which is applicable to the Licensed Works
in accordance with the licenses granted in this SOW. The schedule for such
training will be as mutually agreed by the parties, and will include elements
described below.  In any event, the parties anticipate, and will use
commercially reasonable efforts to ensure, such training sessions can be
conducted no less than *** days prior to general
availability of the Product.





Additional
sales and marketing enablement elements include, but are not be limited to, the
following activities:


·
            Supplier
      will participate in a series of webinars and podcasts for Buyer sales
      personnel;


·
            At
      ***,
      Supplier may host a workshop, at Buyer’s option, for Buyer sales
      personnel to share experience and lessons learned
      from Supplier’s sales
successes;


·
            Supplier
      and Buyer will continue to collaborate on marketing and customer-ready
      materials such as data sheets,  flash demos, competitive positioning,
      etc., as mutually agreed;


·
            Supplier
      will assist Buyer’s team, as needed, in building a live demonstration of
      Buyer’s Product(s) which include the Licensed
  Work.


·
            Buyer
      may request that Supplier provide advice and review of additional sales
      enablement and technical marketing materials, such as Buyer Redbooks,
      wikis, and sales and technical enablement workshop(s). Supplier will
      consider such requests;


·
            As
      mutually agreed, Buyer may include materials provided by Supplier for
      reuse by Buyer in materials for sales, technical sales and
      customers.  These materials may include, but not be limited to,
      sales and technical sales enablement materials, and marketing and
      customer-ready materials such as sales presentations, data sheets and
      other marketing collateral;





Within
*** of the effective
date of this SOW, each party will name a program manager who will be responsible
for the execution of the sales enablement plan planning process.











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has been filed separately with the Securities and Exchange Commission.
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ATTACHMENT





QUALITY
REQUIREMENTS FOR CUSTOMIZED OR DEVELOPED WORKS





Supplier
will perform the following development process work (phased in over the duration
of the project) in order to ensure their ability to support fielded product and
respond to Buyer requirements.





1.0    DEVELOPMENT
PROCESS ASSESSMENT ELEMENTS


Supplier’s
quality assurance team will determine the status of product generation
activities by making appropriate periodic measurements and reviewing with
project management, senior management and Buyer.  An initial
assessment of development and change management process may be made by Buyer,
with presentation by Supplier’s quality assurance team.  Ongoing
assessments, as appropriate, will be made at 6 month intervals, or otherwise as
agreed by Buyer.  Minimum assessment elements are outlined in the
Subsections below.





1.1    Review of
Supplier’s product requirements documents.


The
purpose of these reviews is to ascertain the status of each of the operational
needs or allocated requirements, change activity for needs and requirements, and
the cumulative number of changes, including proposed, open, approved, and
incorporated changes.  The software plans, work products and
activities must also be reviewed for revisions in accordance with approved
requirements changes.  Also, changes in commitments resulting from
requirements changes must be negotiated with affected groups.





1.2    Review
of Software Development Process Document.


The
purpose of these reviews is to verify that the process is defined and documented
and that process elements are described addressing the following:


a)
            Applicable
      process and product standards


b)
            Responsibilities
      for implementing the process


c)
            Required
      tools and resources


d)
            Required
      procedures, practices, methods and
technologies


e)
            Process
      inputs


f)
            Software
      products and interim products to be developed and peer
      reviewed


g)
            Completion
      and acceptance criteria


h)
            Product
      and process data to be collected for
reviews


i)
            Internal
      process interfaces between the software disciplines (e.g., requirements
      analysis, cost estimation, design, coding, test, configuration management,
      peer review, quality assurance)


j)
            External
      process interfaces to processes of other affected groups (e.g., systems
      engineering, system test, contract management, technical documentation,
      etc.)


k)
            Changes
      proposed for the software development
process





1.3    Review of
Test Process Document.


The
purpose of these reviews is to verify that the process is defined and
documented, and that process elements are described addressing testing items
analogous to those identified above for the software development
process.





2.0   CHANGE/CONFIGURATION
MANAGEMENT





Supplier
will demonstrate that their configuration management (CM) process is adequate to
baseline configuration items (e.g., requirements, plans, designs, code,
documentation) and review prospective changes due to defect removal or
additional functionality request.  A configuration management plan
will be developed and approved as the basis for performing CM
activities.


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Supplier
will establish a configuration management board ("CMB"), including systems
engineering, software development, test, project management, build and
integration.  The CMB will review and approve/reject changes to the
requirements, design, and code baseline, based on feasibility, cost, schedule,
resource constraints, and customer's agreed to budget and schedule
relief.





Supplier
will establish a configuration management library ("CML") wherein identified
requirements, plans, designs, code, test case and defect data baselines will
reside.  Additionally, change requests and defect/problem reports will
be recorded and tracked in the CML.  Supplier will document and track
changes to baselines via a documented procedure.  Products from the
CML will be created and their use controlled by a documented
procedure.





Supplier
will develop standard reports documenting Configuration Management ("CM")
activities and the contents of the baseline.  Baseline audits will be
conducted periodically according to a documented process.  See
glossary for definitions of standard reports.





Supplier’s
quality assurance team will determine the status of the CM activities by making
appropriate periodic measurements and reviewing them with project management,
senior management and Buyer. Assessment items will consist of the following, as
a minimum:





Review of
supplier’s configuration management process and capabilities.  These
reviews will occur monthly, in order to effectively track issues and resolution,
performance against service levels, actual problem fixes vs. claimed
enhancements/upgrades.  Reviews will be at project manager and
executive levels.  The purpose of these reviews is to ascertain the
status of the process and activities, including the following:


a)
            Review
      of the CM process document


b)
            Review
      of the CM plan and status of CM activities against
  plan


c)
            Change
      request summary and status


d)
            Trouble
      report summary and status


e)
            Completed
      work, expended effort and resources in CM
  activities


f)
            Results
      of configuration item baseline
audits


g)
            Review
      of project schedules, issues, concerns, relevant technical specifications,
      and testing status


h)
            Buyer
      participation in testing process, including scenarios, test plans,
      integration and scalability testing, and beta
  release.





3.0    PLANNING


Supplier
will review its project management process with Buyer to identify the teams who
will develop the software development and defect removal plans, list the
software project commitments to teams outside of the software organization,
identify a software life cycle, and build the software development and/or change
management/defect removal plan.





Supplier
will review plans with Buyer to ensure coverage of requirements baseline and
project’s purpose, scope, goals and objectives, and interrelationships with
other teams.





Supplier’s
quality assurance team will measure project planning activities and review with
project management, senior management and Buyer. Assessment items will consist
of the following, as a minimum:





3.1  Review of supplier’s
software development and configuration management/defect removal
plans.


The
purpose of these reviews is to ascertain the status of the plan (including
proposed and instituted changes and project impact) and status of activities
against plan. Completion of milestones for planning activities
are


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compared
to the plan.  Also, planning work completed, effort expended, and
funds expended against plan are measured against plan, in order to track earned
value and indicate challenge areas.





4.0    SUPPLIER’S
PROJECT MANAGEMENT TRACKING


Supplier
will initiate and document the measurement of size of product, labor spent
(against each of the software development areas: development, system
engineering, test, and indirect), schedule time, critical computer resources,
technical progress, performance and issues with the software development
plan.  The quality assurance team will measure tracking activities and
review with project management, senior management and Buyer (Buyer may determine
frequency of project management reviews).





5.0     PRODUCT
QUALITY ASSURANCE


Supplier
will establish a Quality Assurance team to spot-check interim and final
Deliverables to assess quality and document non-conformances. Interim
Deliverables are requirements, design, built code, build reports, test plans,
test reports, users guides, installation procedures, national language support,
etc. (list is generic).





The
Quality Assurance team will periodically report the results of its activities to
project management, senior management and Buyer.  Buyer may conduct
periodic technical quality reviews and assessments of  Supplier’s
development process, with above quality assurance report as one
input.





Buyer may
periodically review the Quality Assurance team’s activities and
Deliverables.  Measurements will be made to determine the schedule
status of the QA activities, including but not limited to the
following:  completion of QA milestones for QA activities vs. plan;
number of product audits and activity reviews -vs.- plan.





6.0    MEASUREMENTS


Typical
measurementsfor
the above process areas are the following:


a)
            Errata
      items (number of)


b)
            Change
      requests


c)
            Trouble
      reports (discrepancies)


d)
            The
      number and content of TBD items (to be determined
  items)


e)
            Small/detailed
      design or planning books compared to product
  size


f)
            Books
      consist of largely boilerplate
information





7.0    ISO
REQUIREMENTS


Where ISO
compliance is required, Supplier shall represent and warrant that Supplier is
ISO 9001* compliant (“Compliant”). Compliance can be either external
accreditation or self-declaration. For external accreditation, a copy of
Supplier’s current registration, including all pages is required. This should
cover the Scope, Standard Industrial Classification (“SIC”) code or equivalent
and locations involved. It should also identify any restrictions or
exclusions.  For self declaration, a letter of assurance is required
from the CEO/COO or other executive that self declaration was done with due
diligence based upon a previously executed internal audit report, and has had
executive management review and approval. Display of proof of due diligence to
Buyer is required as part of the letter from the CEO/COO.





8.0
            REVIEWS


On a
periodic basis, Buyer or Buyer’s quality representative may conduct reviews at
Supplier’s and Supplier’s sub-tier supplier’s development locations. Supplier
may, at Buyer’s request and at a mutually agreeable time, permit access to Buyer
to Software Development operations and inspection of  interim and
final change management deliverables for Buyer specific and base product
deliverables, including access to the sub-tier supplier facilities. Reviews
shall include review of Supplier product process control, quality inspection
test data, internal audit reports, and other information related to the product
being procured to verify compliance to the terms of this Software Supplier
Quality Attachment  (SSQA). Under normal circumstances Supplier shall
be


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given at
least a two week advance notice by Buyer representatives of their intent to
visit.  Supplier shall ensure access for Buyer’s auditors to all the
sites where work is being performed or materials being delivered to Supplier in
performance of Supplier’s change management work for Buyer specific and base
product deliverables . A high defect rate is defined as more than two
occurrences of a production outage of Supplier’s product found to be due to
Supplier product flaws, or two or more defects in Supplier’s product which
affect Buyer by requiring code fixes by Supplier to resolve in any one Supplier
product release.





9.0
            DOCUMENT
      CONTROL


Supplier
shall ensure that all documents pertinent to its product, such as software
change management specifications and designs, contracts, policies, procedures,
software development process flow chart, and work instructions (including test
procedures) are under configuration control and are available to all necessary
personnel in the development environment. Supplier shall a have a document
configuration control system for the effective updating/removal of any obsolete
documentation from all development areas.





10.0
            QUALITY
      RECORDS


Supplier
shall establish and maintain procedures for identification, collection,
indexing, filing, storage, maintenance, and disposition of all quality
records.





11.0
            QUALITY
      PROBLEM NOTIFICATION TO BUYER


Supplier
must notify Buyer of any quality or reliability problems, using Suppliers
standard procedures or those negotiated between Buyer and Supplier that may
affect Buyer’s use of  Supplier’s product. These problems may have
been identified by Supplier's internal testing (i.e., process control data,
internal test data, quality data, etc.) by third parties who produce products on
behalf of Buyer, or by another customer (see ISO 9001).





12.0
            CHANGES


Buyer’s
quality representative shall be notified of all software development life cycle
process changes, development, test, and support location changes, or
development, test, or support outsourcing decisions for Supplier’s product(s)
covered by this agreement , ***  prior to their
implementation as these changes may significantly affect form, fit, function,
quality, reliability or support for Supplier’s product.


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has been filed separately with the Securities and Exchange Commission.
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[***]  Indicates text has
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has been filed separately with the Securities and Exchange Commission.
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Attachment:  Sample Data
Collection Form for Supplier





***





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has been filed separately with the Securities and Exchange Commission.
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