Exhibit 10.97


 


NETDIMENSIONS CONTENT CLIENT


LICENSE
AGREEMENT


Signature
Section (including Commercial Terms)


 


1.                            DATE: February 24,
2004


 


2.                            PARTIES:


 


(1)          NetDimensions: NetDimensions Limited, a company incorporated in Hong Kong the
registered office of which is at 10F Siu On Centre, 188 Lockhart Road, Wan
Chai, Hong Kong;  and


 


(2)          Content Client: The Content Client, whose details are as follows:


 


	
  Name:

  	
   

  	
  VCampus Corporation

  
	
   

  	
   

  	
   

  
	
  Country/state
  of incorporation:

  	
   

  	
  USA

  
	
   

  	
   

  	
   

  
	
  Place of
  business:

  	
   

  	
  1850
  Centennial Park Drive, Suite 200

  
	
   

  	
   

  	
  Reston,
  VA 20191

  
	
   

  	
   

  	
   

  
	
  Contact
  details:

  	
   

  	
   

  
	
  •   Contact name

  	
   

  	
  Christopher
  Nelson

  
	
  •   Contact position

  	
   

  	
  Chief
  Financial Officer

  
	
  •   Telephone

  	
   

  	
  (703) 654-7214

  
	
  •   Fax

  	
   

  	
  (703)
  654-7319

  
	
  •   Email

  	
   

  	
  cnelson@vcampus.com

  
	
  •   Website

  	
   

  	
  www.vcampus.com

  
	
   

  	
   

  	
   

  
	
  NetDimensions
  Contact details

  	
   

  	
   

  
	
  •   Contact

  	
   

  	
  Customer
  Services

  
	
  •   Telephone

  	
   

  	
  +852 2122
  4588

  
	
  •   Fax

  	
   

  	
  +852 2869
  8760

  
	
  •   Email

  	
   

  	
  support@netdimensions.com

  
	
  •   Website

  	
   

  	
  www.netdimensions.com

  
	
   

  	
   

  	
   

  
	
  And for
  first-line support

  	
   

  	
   

  
	
  •   Contact

  	
   

  	
  Gideon Sheps

  
	
  •   Telephone

  	
   

  	
  +1 416
  636-3682

  
	
  •   Fax

  	
   

  	
  +1 416
  636-6154

  
	
  •   Email

  	
   

  	
  gideon.sheps@netdimensions.com

  
	
  •   Website

  	
   

  	
  N/A

  



 


1

















 


3.                            INTRODUCTION


 


NetDimensions is the sole and exclusive owner of the
Enterprise Knowledge Platform (EKP) Software (as defined below). The Content
Client wishes to acquire a license of the Software from NetDimensions to host
courseware and to manage blended learning solutions for its customers.
NetDimensions agrees to license the Software to the Content Client in
accordance with the terms and conditions set out in this Agreement, which
comprises this signature section, the Service Level Terms Schedule and the
Standard Terms and Conditions Schedule.


 


2

















 


COMMERCIAL TERMS


 


	
  Software:

  	
   

  	
  EKP Gold
  (includes connectivity APIs, customization toolkit, etc.) license with no
  preset limit on concurrent usage. The Software will be delivered to Content
  Client electronically.

  
	
   

  	
   

  	
   

  
	
  Commencement
  Date:

  	
   

  	
  28
  February 2004

  
	
   

  	
   

  	
   

  
	
  Initial
  Term:

  	
   

  	
  18 months
  from the Commencement Date

  
	
   

  	
   

  	
   

  
	
  Minimum Charge
  (non-refundable):

  	
   

  	
  US$[*] payable as follows:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  On signing: US$[*]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By 30
  June 2004: US$[*]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By 30
  September 2004: US$[*]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Content
  Client will not remit additional revenue sharing payments until and unless
  the total owed exceeds the total minimum payments made.

  
	
   

  	
   

  	
   

  
	
  Revenue
  Share:

  	
   

  	
  Revenue
  Share is based on Gross Revenue, which, for the purposes of this contract, is
  defined as: “Revenue generated from online course sales and recognized in
  accordance with U.S. Generally Accepted Accounting Principles, less taxes
  billed to End Users as a separate line item (and remitted to a U.S.
  government) and any amounts actually rebated or refunded to the Customer.”

  
	
   

  	
   

  	
   

  
	
  Basic LMS Service:

  	
   

  	
  Content
  Client will pay NetDimensions [*]%
  of gross revenue derived from End Users to which Content Client, in its sole
  discretion, serves online courses on the Software. Gross Revenue from these
  End Users will include revenues derived from:

  
	
   

  	
   

  	
  •             COTS
  course registrations

  
	
   

  	
   

  	
  •             VCampus-developed
  course registrations

  
	
   

  	
   

  	
  •             3rd
  party-developed course registrations (courses provided to the Content Client
  by End Users)

  
	
   

  	
   

  	
  Gross
  Revenue does not include revenues from custom course development, professional
  services, or

  



 


Confidential
Treatment Requested for Portions of this Document


 


3

















 


	
   

  	
   

  	
  fees
  associated with the setup and administration of an End User’s campus.

  
	
   

  	
   

  	
   

  
	
  Instructor-led Training (ILT) Service:

  	
   

  	
  Content
  Client will pay NetDimensions [*]% of
  incremental Gross Revenue (above and beyond the “Basic LMS Service” revenues)
  received by the Content Client from its customers specifically for the
  provision of ILT management capabilities, with a minimum of US$[*] per ILT registration by an End User.

  
	
   

  	
   

  	
   

  
	
  Unlimited Instructor-led Training (ILT) Service:

  	
   

  	
  For
  federal government contracts (FasTrac, GoLearn, military etc) where the Content Client  is required to offer unlimited ILT services,
  the Content Client will not be required to account for or pay any fees for
  individual course registrations. Instead, the Content
  Client  will pay NetDimensions [*]% of Gross Revenue derived from the provision of the following
  services as specified in those federal government contracts:

  
	
   

  	
   

  	
  •             COTS
  course registrations

  
	
   

  	
   

  	
  •             VCampus-developed
  course registrations

  
	
   

  	
   

  	
  •             3rd
  party-developed course registrations (courses provided to the Content Client
  by End Users)

  
	
   

  	
   

  	
  •             ILT
  course registrations

  
	
   

  	
   

  	
  This does
  not include revenues from custom course development, professional services,
  or fees associated with the setup and administration of an End User’s campus.

  
	
   

  	
   

  	
   

  
	
  Revenue
  Share reporting and payment dates (for the avoidance of doubt, a Revenue
  Share payment date is the date by which a payment must be deposited and
  credited into the payee bank account specified by NetDimensions):

  	
   

  	
  First
  reporting date (in respect of the period from the Commencement Date until 30
  June 2005): 15 April 2004 for the calendar quarter and two weeks to
  31 March 2004

  

  Subsequent reporting dates (in respect of each calendar quarter) shall be
  within 15 days of the end of the relevant calendar quarter

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All payment
  dates shall fall 15 days after the relevant reporting dates

  
	
   

  	
   

  	
   

  
	
  Restrictions
  on content or

  	
   

  	
  End Users will not be permitted to upload or link

  



 


4

















 


	
  courseware:

  	
   

  	
  their
  own or 3rd party-developed course content to the Software. End
  Users must provide their own or 3rd party-developed course content
  to the Content Client, who may upload or link that content to the Software on
  behalf of the End User.

  
	
   

  	
   

  	
   

  
	
  End Users:

  	
   

  	
  [*]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [*]

  
	
   

  	
   

  	
   

  
	
  Designated
  Server IP Address(es):

  	
   

  	
  Content
  Client will designate a reasonable number of IP addresses to accommodate
  testing, fallback, or other standard operational requirements required by the
  Content Client’s business.

  
	
   

  	
   

  	
   

  
	
  Designated
  Site(s):

  	
   

  	
  In order to
  provide Application Server Provider (ASP)-based learning management services
  to the End Users, the Content Client may install the Software on its own
  servers or on servers at a secure 3rd party hosting facility
  specified by the End User.

  
	
   

  	
   

  	
   

  
	
  Section 508
  compliance:

  	
   

  	
  NetDimensions
  agrees to test the Software at the Content Client’s expense and to use its
  best efforts, subject to discussion with the Content Client on the costs of
  compliance, to comply with any remedial requirements outlined as a result of
  the testing

  
	
   

  	
   

  	
   

  
	
  Content
  Client Customization or Integration:

  	
   

  	
  The Content Client may integrate EKP Gold with other systems
  or customize EKP Gold with a view to enhancing or improving that Product for
  the benefit of End Users or potential End Users (“Content Client
  Customization or Integration”).

  



 


5

















 


	
   

  	
   

  	
  The Content Client shall indemnify NetDimensions against
  all liability which it may incur if any Content Client Customization or
  Integration infringes the Intellectual Property Rights of a third party or
  otherwise cause NetDimensions to suffer loss, damage or expense.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The Intellectual Property Rights in any Content Client
  Customization or Integration that has been developed or created solely by the Content
  Client without input from NetDimensions shall be owned by the Content Client and NetDimensions
  acknowledges that it has no proprietary rights whatsoever in such
  Intellectual Property Rights.

  
	
   

  	
   

  	
   

  
	
  Trademarks,
  Service Marks, Logos, and Slogans:

  	
   

  	
  NetDimensions agrees to change the message in the browser’s
  title bar from “Enterprise Knowledge Platform by NetDimensions” to “VCampus –
  Your e-Learning Partner”. Content Client agrees to pay a one-time fee of $[*] for this change. Content Client
  agrees to use this modification in its ASP implementation of the system, but
  will not use it for any licensed (behind-the-firewall) implementations of the
  system.

  
	
   

  	
   

  	
   

  
	
  Online
  Help Files:

  	
   

  	
  NetDimensions agrees to provide the Content Client with the
  original RoboHelp source files for User Help, Instructor/Reviewer Help, and
  Administration Help. NetDimensions will allow the Content Client to modify,
  output, and link these files to the Software as necessary to accommodate its
  business requirements.

  
	
   

  	
   

  	
   

  
	
  End
  User References:

  	
   

  	
  NetDimensions agrees not to exercise its right to contact
  the Content Client’s End Users directly, as set forth in section 6.3 of
  the Standard Terms and Conditions Schedule, unless an outside arbitrator has
  deemed it reasonable or necessary.

  
	
   

  	
   

  	
   

  
	
  Support:

  	
   

  	
  In addition to the terms set forth in the Service Level
  Terms Schedule, telephone support will be available between the hours of 9:00
  a.m. and 6:00 p.m. U.S. Eastern Standard Time, Monday through Friday.
  NetDimensions will also provide the Content Client with a list of Hong Kong
  public holidays no less than three months in advance of those holidays.
  E-Mail support will be available 24 hours per day, every day.

  



 


6

















 


	
  Upgrades,
  Updates, and Patches:

  	
   

  	
  NetDimensions
  shall supply the most current version of the Software to Content Client
  electronically. Furthermore, if at any time NetDimensions shall make
  available to the general public a more current release of any component of
  the Software, NetDimensions shall promptly provide Content Client with the
  more current release. VCampus shall have no obligation to convert to the
  current release.

  
	
   

  	
   

  	
   

  
	
  Conflicts

  	
   

  	
  In the event
  of any conflict between any provision contained in these terms and conditions
  and any provision contained in the Standard Terms and Conditions
  Schedule or the Service Level Terms Schedule, the provision contained in
  these terms and conditions shall prevail to the extent necessary to resolve
  the inconsistency, and section 1.4 of the Standard Terms and Conditions
  Schedule will not be used to determine precedence.

  



 


 


	
  /s/ JAY SHAW

  	
   

  	
  /s/
  CHRISTOPHER NELSON

  	
   

  
	
  Signed for
  and on behalf of NetDimensions

  Limited by:

  	
   

  	
  Signed for
  and on behalf of the Content

  Client by:

  	
   

  
	
  Name:  JAY
  SHAW

  	
   

  	
  Name:  CHRISTOPHER
  NELSON

  	
   

  
	
  Title:  MANAGING
  DIRECTOR

  	
   

  	
  Title:  CFO

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  in the
  presence of:

  	
   

  	
  in the
  presence of:

  	
   

  
	
  Name of
  witness:  KATY CHENG

  	
   

  	
  Name of
  witness:  DIANA MOJICA

  	
   

  
	
  Address:

  	
   

  	
  Address:

  	
   

  



 


7

















 


CONTENT CLIENT


LICENSE AGREEMENT


Standard Terms and Conditions Schedule


 


1                                         Definitions and Interpretation


 


1.1 In this Agreement,
unless the context otherwise requires, the following words have the following
meanings:


 


	
  “Agreement”

  	
   

  	
  means this
  Content Client Licence Agreement, comprising the signature
  section (incorporating the Commercial Terms), the Service Level
  Schedule and the terms and conditions in this Schedule;

  
	
   

  	
   

  	
   

  
	
  “Annual
  Minimum Charge”

  	
   

  	
  means the
  non-refundable advance on the Revenue Share payable by the Content Client
  specified in the Commercial Terms;

  
	
   

  	
   

  	
   

  
	
  “Commencement
  Date”

  	
   

  	
  means the
  commencement date of this Agreement specified in the Commercial Terms;

  
	
   

  	
   

  	
   

  
	
  “Commercial
  Terms”

  	
   

  	
  means the
  commercial terms set out in the signature section of this Agreement;

  
	
   

  	
   

  	
   

  
	
  “Designated
  Server IP Address”

  	
   

  	
  means the
  Content Client’s server IP address specified in the Commercial Terms;

  
	
   

  	
   

  	
   

  
	
  “End User”

  	
   

  	
  means, as
  specified in the Commercial Terms, a customer of the Content Client (and its
  employees) who has the right to access and use the Content Client’s
  courseware operated on the Software (with restrictions, if any, on the types
  of Users specified in the Commercial Terms);

  
	
   

  	
   

  	
   

  
	
  “Initial
  Term”

  	
   

  	
  means the
  initial term of this Agreement, as set out in the Commercial Terms;

  
	
   

  	
   

  	
   

  
	
  “Intellectual
  Property Rights”

  	
   

  	
  means any
  patent, copyright, design (registered and unregistered), trade mark and
  service mark, trade and business names (including Internet domain names and
  e-mail address names), unregistered trade marks and service marks, database
  rights, know-how and unpatented inventions and any other intellectual
  property rights in any relevant jurisdiction;

  
	
   

  	
   

  	
   

  
	
  “License
  Fee”

  	
   

  	
  means the
  Revenue Share, the Annual Minimum Charge and any additional fees charged
  pursuant to this Agreement;

  
	
   

  	
   

  	
   

  
	
  “Related
  Documentation”

  	
   

  	
  means the
  installation instructions and user guide supplied to the Content Client by
  NetDimensions (whether physically or by electronic means) in conjunction with
  the Software, including any part or copy;

  



 

















 


	
  “Revenue
  Share”

  	
   

  	
  means the
  share of gross revenues payable to the Content
  ClientforcoursesforwhichEndUsersenrolorregisterClient for courses for which End
  Users enrol or register (regardless of whether they attend or take the
  courses) using the Software, as specified in the Commercial Terms;

  
	
   

  	
   

  	
   

  
	
  “Software”

  	
   

  	
  means
  NetDimensions’ software as detailed in the Commercial Terms.

  



 


1.2    In this Agreement words importing the singular include the plural and
vice versa and words importing gender include any other gender.


 


1.3    The headings of Clauses are for ease of reference and shall not affect
the construction of this Agreement.


 


1.4    In the event of any conflict between any provision contained in these
terms and conditions and any provision contained in any other part of this
Agreement, the provision contained in these terms and conditions shall prevail
to the extent necessary to resolve the inconsistency.


 


2 License


 


2.1    NetDimensions grants to the Content Client a non-exclusive,
non-transferable license to use the Software (in object code only) and the
Related Documentation with effect from the Commencement Date for the duration
of, and subject to, the terms and conditions of this Agreement.


 


2.2    This Agreement shall commence on the date that it has been signed by both
parties and shall continue until the end of the Initial Term and thereafter,
unless and until terminated by either party on three months’ written notice to
the other to expire at the end of the Initial Term or the anniversary thereof,
or otherwise pursuant to the terms of this Agreement.


 


2.3    The Software is licensed only for use on the Designated Server IP Address
at the Designated Site for the purposes of hosting the Content Client’s
courseware to End Users. The Content Client shall comply with any restrictions
contained in the Commercial Terms regarding the content or courseware that may
be used with the Software and/or the identity or number of End Users.


 


3 License Fee and Payment


 


3.1    The Content Client shall pay to NetDimensions the Annual Minimum Charge
prior to the commencement of each year of this Agreement. The Annual Minimum
Charge shall be an advance on future Revenue Share for the coming year of this
Agreement,


 

















 


but shall not be refundable in the event that the Revenue Share for that
year is less than the Annual Minimum Charge.


 


3.2    The Content Client shall also report to NetDimensions and pay the Revenue
Share (in excess of the Annual Minimum Charge) in the manner and at the times
specified in the Commercial Terms.


 


3.3    Payment of all amounts due to NetDimensions under this
Agreement shall be made by the Content Client in United States Dollars by wire
transfer or in such other currency or by such other method as may reasonably be
specified from time to time by NetDimensions. 
The Content Client shall be responsible for payment of all bank charges.


 


3.4    Payment of all sums due to NetDimensions must be made
by the Content Client in full without any set-off (whether at common law or
otherwise), deductions or withholding for or on account of any taxes, fees,
levies, imports, duties or charges of any nature imposed by any governmental
authority on any payment due hereunder, except as required by law.  Where any such deduction or withholding is
required, the Content Client shall pay NetDimensions such additional sum as
shall be required so that the sum received by NetDimensions shall be the same
as if no such deduction or withholding had been made.


 


3.5    If the Content Client fails to make a payment when
due, NetDimensions may suspend the license of the Software and the provision of
the Support (as defined in the Service Level Terms Schedule) until payment in
full, in addition to its rights of termination under Clause 10. NetDimensions
shall also be entitled to charge interest on any overdue amounts at a rate of
2% per annum above the prime lending rate of the Hong Kong and Shanghai Banking
Corporation at the date of the invoice compounded daily from the due date until
the date of payment.


 


4 Support


 


4.1    NetDimensions shall provide second-line telephone and
e-mail technical support for the Software in accordance with the Service Level
Terms Schedule.


 


5 Content Client’s Undertakings


 


5.1    The Content Client shall not, and shall ensure that
the End Users do not use, copy, sub-license, modify, adapt, translate, reverse
engineer or disassemble the Software or Related Documentation or create any
derivative work based thereon or merge or include the Software or Related
Documentation with or in any other software save as expressly provided for in
this Agreement.  The Content Client may
make such back-up copies of the Software and/or Related Documentation as are
reasonably necessary for disaster recovery and security purposes.


 

















 


5.2    The Content Client shall not remove the copyright
notice, trade marks or service marks of NetDimensions from any copies, in any
form, including partial copies or modifications of the Software or Related
Documentation, made in accordance with this Agreement.


 


5.3 The Content Client shall:


 


5.3.1 not provide or otherwise make
available the Software or Related Documentation in whole or in part, in any
form to any person other than the Content Client’s employees without
NetDimensions’ prior written consent;


 


5.3.2 notify NetDimensions immediately if
the Content Client becomes aware of any unauthorised use of the whole or any
part of the Software or Related Documentation by any person;


 


5.3.3 use the Software and Related
Documentation only in accordance with NetDimensions’ reasonable operating
instructions and the terms of this Agreement;


 


5.3.4 use commercially reasonable efforts,
using up to date virus checking routines to ensure that the Software remains
free from viruses;


 


5.3.5 ensure that the Software is only used
on the Designated Server IP Address at the Designated Site.


 


5.4         The Content Client shall be responsible for
maintaining the confidentiality of its passwords and for procuring that all End
Users keep their own passwords confidential. 
If the Content Client becomes aware of any unauthorised access to the
Software by any person who uses a password without the Content Client’s or
NetDimensions’ authorisation, or if the Content Client believes that a password
has been lost or stolen, the Content Client will immediately notify
NetDimensions.


 


5.5         Unless the Content Client gives written notice to
NetDimensions to the contrary, the Content Client agrees that NetDimensions may
refer to it in NetDimensions’ Web site and marketing materials and agrees to
participate in press announcements and other media marketing related to the use
of the Software at NetDimensions’ reasonable request.


 


6 Audit


 


6.1         The Content Client will during the term of this
Agreement maintain proper, up to date books and records, including accounting
records, of all transactions involving the Software.


 


6.2         NetDimensions may inspect, review and/or audit any
matter related to the performance by the Content Client of any of its
obligations under this Agreement.  In


 

















 


particular,
NetDimensions may (by itself or by its agents) not more than twice per year
access the Content Client’s premises (with reasonable prior notice) for the
purposes of inspecting, reviewing and/or auditing the Content Client’s books
and records referred to in Clause 6.1. NetDimensions may not more than twice
per year also review and/or audit the Content Client’s quality of service to
End Users.


 


6.3         The Content Client agrees that NetDimensions may (by
itself or by its agents) contact End Users directly for the purposes of
reviewing and/or auditing the Content Client’s quality of service to End Users.


 


7 Intellectual Property Rights


 


7.1         The Intellectual Property Rights in the Software, the
Related Documentation and any other software provided to the Content Client by
NetDimensions under this Agreement (including any modifications, alterations or
additions made at the request of the Content Client to the Software) shall be
owned by NetDimensions.


 


8 Warranty


 


8.1         NetDimensions warrants that:


 


8.1.1 it has full title to and ownership of the
Software and has full power and authority to enter into this Agreement; and


 


8.1.2 the Software licensed and delivered pursuant to
this Agreement shall perform substantially in accordance with the Related Documentation
for such version for a period of 90 days from the Commencement Date.


 


8.2         Except as set out in Clause 8.1 and to the extent
permitted by law, NetDimensions excludes all other representations and
warranties (express or implied) regarding the Software and Related
Documentation, including but not limited to, representations and warranties of
merchantability and fitness for a particular purpose.


 


8.3         If the Content Client discovers a material error in
the Software which substantially affects the Content Client’s use of it and
notifies NetDimensions of the error within 90 days from the Commencement Date,
NetDimensions shall at its sole option either refund the License Fee or use
reasonable endeavours to correct by free update or upgrade that part of the Software
which does not comply, provided that the non-compliance has not been caused by
any modification, variation or addition to the Software not performed by
NetDimensions, or caused by its incorrect use, abuse or corruption of the
Software, or by use of the Software with other software or on equipment other
than NetDimensions supported hardware and software configurations as agreed at
the time of signing this Agreement or on a server IP address other than the
Designated Server IP Address or at sites other than the Designated Site.


 

















 


8.4         The Content Client acknowledges that software in
general is not error-free and that NetDimensions gives no warranty that the
Software or Related Documentation will be uninterrupted or error-free.


 


9 Limitation of Liability


 


9.1         Nothing in this Agreement shall exclude or limit
liability for death or personal injury resulting from the negligence of any of
the parties or its employees while acting in the course of their employment.


 


9.2         Subject to Clause 9.1, NetDimensions’ entire aggregate
liability to the Content Client for any loss or damage arising from any act or
omission relating to this Agreement regardless of the form of action, whether
in contract or tort (including in each case negligence), strict liability or otherwise,
shall be limited in any one period of 12 months after the Commencement Date to
proven direct damages in an amount not to exceed the License Fee paid in
respect of that 12 months.


 


9.3         NetDimensions shall not under any circumstances be
liable to the Content Client for any loss of revenue, business, contracts,
anticipated savings, profits, data or information, or any indirect or
consequential loss whether arising from negligence, breach of contract or
howsoever.


 


9.4         Except as expressly set out in this Agreement,
NetDimensions disclaims all warranties whatsoever (whether express or implied)
in respect of the Software, the Related Documentation and the Support to the
maximum extent permitted by law, including (without limitation) warranties or
conditions relating to satisfactory quality or fitness for any particular
purpose.


 


10 Indemnity


 


10.1 The Content Client will fully indemnify, defend
and hold NetDimensions and its directors, officers, employees, agents and
sub-contractors harmless from and against any claims made against NetDimensions
by a third party arising in connection with:


 


10.1.1 any claimed violation of laws, rules, policies
and procedures by the Content Client’s use of the Software;


 


10.1.2 liability resulting directly or indirectly from
any content incorporated in the Software by the Content Client or at the
Content Client’s request;


 


10.1.3 any claimed violation by NetDimensions of any
laws, rules, policies and procedures which is or are a consequence of the
Content Client failing to inform NetDimensions that the Content Client’s
content or data transmission requires NetDimensions to obtain licenses, permits
and/or approvals;


 

















 


10.1.4 information or data of the End Users that
violates or allegedly violates any law or regulation, or is defamatory;


 


10.1.5 any damage to or destruction of the Software or
Related Documentation supplied by NetDimensions to the Content Client under
this Agreement to the extent that such damage or destruction is caused by the
actions of the Content Client, its employees, sub-contractors or agents.


 


10.2   NetDimensions
agrees to indemnify the Content Client against and defend at its own expense
any action brought against the Content Client to the extent that it is based on
(1) a claim that the Software or Related Documentation constitutes an
infringement of any third party patent, trade mark or copyright, or (2) a
claimed violation by NetDimensions of any laws, rules, policies, or procedures
which are not related to the Content Client’s use of the Software or content
that is provided by the Content Client or its End Users, provided that the
Content Client:


 


10.2.1 notifies NetDimensions in writing as soon as is
reasonably possible and in any event within 30 days of becoming aware of any
alleged infringement;


 


10.2.2 makes no admission without NetDimensions’ prior
written consent; and


 


10.2.3 provides all reasonable assistance in
conducting all negotiations and litigation, if required to do so by
NetDimensions.


 


10.3 NetDimensions is authorised, at its own expense,
to defend or, at its option, to settle the claims referred to in Clause
10.2.  In the event that the Software is
held by a final court decision to constitute an infringement of the rights
referred to in Clause 10.2, NetDimensions shall, at its own cost and sole
option, either obtain the right for the Content Client to continue using the
Software, or replace or modify the Software so that it is no longer infringing,
or reimburse the Content Client for the amount paid under this Agreement.


 


11 Termination


 


11.1 Either party may (without prejudice to its other
rights) terminate this Agreement by notice in writing to the other if the other
party:


 


11.1.1 defaults in due performance or observance of
any material obligation under this Agreement (including, in the case of the
Content Client, a failure to pay the License Fee when due and payable) and, in
the case of a remediable breach, fails to remedy the breach within 30 days of
receipt of the terminating party’s notice so to do, and such termination shall
take effect either immediately or at a date specified in the notice; or


 

















 


11.1.2 becomes bankrupt or insolvent, or if the other
party’s business is placed in the hands of a receiver or trustee, whether
voluntarily or otherwise, and such termination shall take effect either
immediately or at a date specified in the notice.


 


11.2 The termination of this Agreement for whatever
cause shall not prejudice or affect the rights of either party against the
other in respect of any breach of this Agreement or in respect of any monies
payable by any either party to the other in respect of any period prior to
termination.


 


11.3 NetDimensions may suspend the provision of any
services under the Service Level Terms Schedule if:


 


11.3.1 circumstances arise in respect of which it has
the right to terminate this Agreement; or


 


11.3.2 the Content Client has failed to pay any amount
due to NetDimensions under or in relation to this Agreement or, in the
reasonable opinion of NetDimensions, breached any of the terms of this
Agreement, and may continue the suspension until the relevant payment has been
made or the relevant breach cured.


 


12 Consequences of Termination


 


12.1 Upon termination of this Agreement for any
reason, all license rights granted shall immediately cease and the Content
Client shall, at NetDimensions’ option, either return or destroy the Software
and Related Documentation and all copies, including any updates or
modifications.


 


12.2 Termination of this Agreement shall not affect
the obligation of the Content Client to pay NetDimensions any fees or other
payments which are due and unpaid at the date of termination.


 


12.3 Any termination of this Agreement shall not
affect any accrued rights or liabilities of either party nor shall it affect
the coming into force or the continuance in force of any provision of this
Agreement which is expressly or by implication intended to come into or
continue in force on or after such termination.


 


13 Confidentiality


 


13.1 Each party (the “Receiving Party”) agrees to keep
confidential and not copy, adapt, alter or divulge to any third party any and
all data, information or materials supplied to or observed by its agents,
employees or subcontractors in the course of performing this Agreement which
belongs to or relates to the other party (the “Disclosing Party”) or the other
party’s business, organisation, work methods, know-how, clients, programs or
products, or which belongs to or relates to any member of the other party’s
group.


 

















 


13.2 Each party shall immediately inform the other if
it becomes aware of the possession, use or knowledge of, or attempts to gain
access to, any of the confidential information by any person not authorised to
possess, use or have knowledge of the confidential information and shall at the
request of the other party provide such reasonable assistance at its own
expense as is required by such other party to deal with such event.


 


13.3 The provisions of this Clause shall not apply to
any information which:


 


13.3.1 is in or enters the public domain other than by
breach of this Clause; or


 


13.3.2 is obtained from a third party who is lawfully
authorised to disclose such information; or


 


13.3.3 is independently developed without reference to
the confidential information of the Disclosing Party and such independent development
can be proved to the reasonable satisfaction of the Disclosing Party; or


 


13.3.4 is authorised for release by written consent of
the Disclosing Party; or


 


13.3.5 is required to be disclosed by order of a court
of competent jurisdiction or by a governmental or regulatory body.


 


14 Export Regulation


 


14.1 If the Content Client exports the Software and/or
Related Documentation outside of the Hong Kong Special Administrative Region in
accordance with this Agreement, the Content Client is obligated and solely
responsible for ensuring compliance with all applicable import and export laws
and regulations of the country of destination and any applicable foreign
jurisdiction.


 


14.2 The Content Client shall indemnify, defend and
hold NetDimensions harmless from any claims brought against NetDimensions
arising from the Content Client’s export, import or handling of the Software
and Related Documentation.


 


15 Force Majeure


 


15.1 Neither party shall be liable to the other under
this Agreement for any failure to perform its obligations hereunder other than
payment obligations or for any loss or damage which may be suffered by the
other party due to any circumstances beyond its reasonable control including
without limitation any Act of God, failure or shortage of power supplies,
flood, lightning or fire, strike or other industrial action the act or omission
of Government or other competent regulatory authority, war, military
operations, or riot.


 

















 


15.2 If either party wishes to rely upon this Clause
it shall send written notice to the other party explaining the relevant force
majeure circumstances.


 


16 General


 


16.1 This Agreement is personal to the Content Client
and may not be assigned to any third party in whole or in part without the
prior written consent of NetDimensions.


 


16.2 This Agreement shall not be varied or amended
unless such variation or amendment is agreed in writing by duly authorised
representatives of both parties.


 


16.3 If any provision of this Agreement is held
invalid, illegal or unenforceable for any reason by any court of competent
jurisdiction, such provision shall be severed and the remainder of the
provisions hereof shall continue in full force and effect as if this Agreement
had been executed with the invalid, illegal or unenforceable provision
eliminated.  In the event of a holding
of invalidity so fundamental as to prevent the accomplishment of the purpose of
this Agreement, the parties shall immediately commence good faith negotiations
to remedy such invalidity.


 


16.4 No failure or delay on the part of either of the
parties to exercise any right or remedy under this Agreement shall be construed
or operate as a waiver thereof nor shall any single or partial exercise of any
right or remedy preclude the further exercise of such right or remedy as the
case may be.  The rights and remedies
provided in this Agreement are cumulative and are not exclusive of any rights
or remedies provided by law.


 


16.5 The parties agree that this Agreement constitutes
the entire understanding between the parties relating to the subject matter
hereof unless any representation or warranty made about this Agreement was made
fraudulently and, save as may be expressly referred to or referenced herein,
supersedes all prior representations, writings, negotiations or understandings
with respect hereto.


 


17 Notices and Communications


 


17.1 Any notice or other document to be given under
this Agreement shall be in writing and shall be deemed to have been duly given
if left at or sent by hand or by registered post, or by facsimile or such other
electronic media which may from time to time be agreed by the parties to a
party at the address or facsimile number set out in the Signature
Section of this Agreement or such other address or facsimile number as one
party may from time to time designate by written notice to the other.


 


17.2 Any such notice or other document shall be deemed
to have been received by the addressee three working days following the date of
dispatch if the notice or other document is sent by registered post, or simultaneously
with the delivery or transmission if sent by hand or if given by facsimile or
other electronic means.


 

















 


18 Governing Law and Disputes


 


18.1 This Agreement shall be governed by and construed
and interpreted in accordance with the laws of England.


 


18.2 Any disputes or differences between the parties
arising out of or in connection with this Agreement shall be referred to the
contact persons identified in the signature section of this Agreement.
They shall immediately refer such disputes to the relevant person within the
company for resolution and notify the other party of the identity of the
responsible person (the “Representatives”). The Representatives shall confer
with one another whenever reasonably called upon to do so by the other and attempt
to resolve the dispute or difference amicably.


 


18.3 If the dispute cannot be resolved by the
Representatives within a maximum of 14 days after it has been referred to them,
NetDimensions shall have the option to refer the dispute to arbitration.  Any exercise by NetDimensions of the option
under this Clause shall be made within 14 days or the option shall lapse. Any
arbitration shall be determined by a sole arbitrator in England. The language
of the arbitration shall be English. The arbitrator shall be appointed by
agreement between the parties or in default of agreement within 14 days after
either party’s request to the other to join in an appointment, appointed at the
request of either party by the Chartered Institute of Arbitrators.


 


18.4 The performance of any obligations under this
Agreement shall not cease or be delayed by this dispute resolution procedure.


 


18.5 Subject to the above, the courts of England shall
have the exclusive jurisdiction to hear and determine all disputes or
differences arising out of or in connection with this Agreement and the parties
submit thereto.


 


18.6 Nothing in this Clause shall preclude
NetDimensions from seeking remedies in any other jurisdiction.


 

















 


CONTENT CLIENT


LICENSE AGREEMENT


Service Level Terms
Schedule


 


1  Scope


1.1
NetDimensions will provide support for up to two named Content Client employees
between the hours of 9:00 a.m. and 5:00 p.m. Hong Kong time, Monday through
Friday, excluding all Hong Kong public holidays (“Support”). The Content Client
may change the designated employees at reasonable intervals. NetDimensions will
not provide any support directly to End Users.


 


1.2
NetDimensions will only provide Support for: (a) the then-current Version, and
(b) the immediately preceding Version for a period of six months following the
release of the then-current Version. 
Any changes made by the Content Client or any End User to the Products
are not covered by Support. In addition, Support does not include service required
as a result of: (a) any modification, reconfiguration, maintenance or support
of the Software not performed by NetDimensions unless otherwise agreed in
writing by NetDimensions, (b) any use of the Software on a system or network
that does not meet NetDimensions’ minimum standards, (c) any software other
than the Software, or (d) any hardware. “Version” means any version of the
Software released by NetDimensions designated, in NetDimensions’ sole
discretion, with a version number where the number to the left of the first
decimal point is different from a preceding release.


 


1.3 NetDimensions will
endeavour to comply with the Customer’s request for on-site technical
support.  However the Customer
acknowledges that the provision of such services is at NetDimensions’ sole
discretion and may depend upon the availability of appropriate resources at the
relevant time. If NetDimensions performs on-site service, the Content Client
shall pay actual travel, accommodation, living and per-diem expenses reasonably
incurred by NetDimensions.  If
NetDimensions is unable to resolve a problem by remote access within a
reasonable period of time, then NetDimensions, at its option, may send
personnel on-site to resolve the problem and the Content Client shall provide
reasonable access to such NetDimensions personnel.


2.1 NetDimensions will
prioritise support requests into four levels:


 

















 


2 Service Level Agreement


 


	
  PRIORITY

  	
   

  	
  DESCRIPTION

  	
   

  	
  INITIAL

  RESPONSE

  TIME

  	
   

  	
  PROBLEM
  FIX

  TURNAROUND

  TIME

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Critical
  problem.  System is down.

  	
   

  	
  4 hours

  	
   

  	
  1 working
  day

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Major
  problem.  System is functioning but
  operation is severely affected. 
  Priority 2 problems may be resolved with a fix or a workaround.  If a workaround is provided, the priority
  level will be downgraded to priority 3.

  	
   

  	
  8 hours

  	
   

  	
  5 working
  days

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Minor
  problem.  System is functioning and
  workaround is available.  Priority 3
  problems should be resolved with a fix or a workaround.

  	
   

  	
  Next working
  day

  	
   

  	
  To be
  mutually agreed between the parties

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  “How to” or
  administrative request.  Content
  Client requests advice on how to use an existing function of the Services, or
  requests an administrative operation such as courseware uploading.

  	
   

  	
  2 working
  days

  	
   

  	
  N/A

  



 


“Initial Response Time” refers to the targeted response time in which
NetDimensions will communicate with the Customer in respect of the reported
problem.


 


“Problem Fix Turnaround Time” refers to the targeted time in which
NetDimensions will resolve the problem identified in a problem log form and
such resolution may be by way of a fix or a workaround.


 


2.2 The time
periods set out above shall commence on receipt of the problem log form by
NetDimensions.


 


2.3 NetDimensions
shall use its reasonable endeavours to resolve all problems identified in the
problem log forms within the timescales set out above.  However, due to the unpredictable nature of
enquiries, NetDimensions gives no warranty that such timescales will be met and
shall not be liable for any failure to do so.


 


3
Professional Services


3.1 If at the Content Client’s request NetDimensions provides services
that are not covered under this Agreement (for example, if the Content Client
requests that NetDimensions conducts an investigation or a troubleshooting
exercise, which in turn discovers configuration, set-up or third-party software
issues not caused by NetDimensions or the Software), the Content Client shall
pay the then-current time and materials fees charged by NetDimensions’
professional services group.