**EXHIBIT10.3**

 

CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BYBRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES ANDEXCHANGE COMMISSION PURSUANT TO ROLL 24B-2 OF THE SECURITIES EXCHANGE ACT OF1934, AS AMENDED.

** **

 

 

 

**FIRST VIRTUAL COMMUNICATIONS**

**PARTNER**

**AGREEMENT**

 

 

BETWEEN

 

**Net One Systems**

 

AND

 

FIRST VIRTUALCOMMUNICATIONS

 

 
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TABLE OF CONTENTS

 
| 1.        | DEFINITION                                                 |
|-----------|------------------------------------------------------------|
|      |                                                       |
| 2.        | APPOINTMENT                                                |
|      |                                                       |
| 3.        | TERM                                                       |
|      |                                                       |
| 4.        | ORDER; ACCEPTANCE;  DELIVERY                               |
|      |                                                       |
| 5.        | OBLIGATIONS  OF PARTNER & FIRST VIRTUAL COMMUNICATIONS |
|      |                                                       |
| 6.        | OBLIGATIONS FOR THE TERM                                   |
|      |                                                       |
| 7.        | PRICES AND  COMMERCIAL CONDITIONS/TERMS                    |
|      |                                                       |
| 8.        | LICENSE FOR TRADEMARKS, SERVICE  MARKS AND TRADE NAMES     |
|      |                                                       |
| 9.        | WARRANTIES                                                 |
|      |                                                       |
| 10.       | LIMITATION OF LIABILITIES                                  |
|      |                                                       |
| 11.       | INDEMNIFICATION                                            |
|      |                                                       |
| 12.       | CONFIDENTIALITY                                            |
|      |                                                       |
| 13.       | TERMINATION                                                |
|      |                                                       |
| 14.       | COMPLIANCE WITH  APPLICABLE LAW                            |
|      |                                                       |
| 15.       | MISCELLANEOUS                                              |
|      |                                                       |
| EXHIBITS: |
|      | A- PRODUCTS, SALES  COMMITMENTS AND DISCOUNT LEVELS        |
|      | B- TRADEMARK LICENSE AGREEMENT                             |
|      | C- END-USER SOFTWARE LICENSE  AGREEMENT                    |
|      | D- PRODUCT WARRANTY                                        |
|      | E- REQUIRED SUBLICENSE  AGREEMENT PROVISIONS               |

 

 

 
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**FIRST VIRTUAL COMMUNICATIONS  PARTNER AGREEMENT**

 

ThisFIRST VIRTUAL COMMUNICATIONS Partner Agreement (this “Agreement”) is enteredinto as of April 1, 2002****(the “Effective Date”) by and between **FIRSTVIRTUAL COMMUNICATIONS, Inc.** a Delaware corporation with a principalplace of business at 3393 Octavius Drive, Suite 102, Santa Clara, CA 95054(“FVC”) and Net One Systems (“ PARTNER”), a Japanese corporation with aprincipal place of business at **Sphere Tower Tennoz, 2-8, Higashi Shinagawa 2-Chome,Shinagawa-Ku, Tokyo 140-8621, Japan**.

 

INCONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, THE PARTIES AGREE ASFOLLOWS:

 

# **1.0****         ****DEFINITIONS****.  **The definitions listed below and elsewhere in this Agreement apply toboth their singular and plural forms, as the context may require.

 

## **1.1****          “IntellectualProperty Rights”**collectively means any and all copyrights, patents, patentregistration rights, business processes, data rights, mask works, trademarks,trade names, service marks, service names, trade secrets, know-how, or otherproprietary rights arising or enforceable under U.S. law, the laws of theTerritory, or any other jurisdiction, or international treaty regime.

 

## **1.2**          The****“**Products**”shall mean those products, components and parts thereof offered for sale by FVCas listed in FVC’s then-current price list, which may be amended from time totime by FVC. The current list is set forth in *Exhibit A*, which is attachedhereto.

 

## **1.3****         **The **“Term”**shall have the meaning set forth inSection 3.1 below.

 

**1.4**          “**End-User Customer**” shall mean a customer orsecond tier reseller of Partner.

** **

**1.5****         **The “**Territory**” shall mean the geographic areaagreed in which the Partner is authorized to resell the Products and to promotethe rich media web conferencing  marketand FVC’s trademarks and service marks. For purposes of this Agreement, the Territory shall be: **Japan****.**

 

**1.6**          The “Software” shallmean the software programs, in object code form, included with the Products, aslisted on *Exhibit A*, as amendedfrom time to time.

 

# **2.0****         ****APPOINTMENT.**

 

## **2.1**          Distribution Rights:Subject to Section 2.2 of the terms and conditions of this Agreement, FVChereby appoints Partner, during the Term, as FVC’s exclusive distributor forthe Products in the assigned Territory, and Partner hereby accepts suchappointment. Partner shall have the non-transferable right to obtain productsfrom FVC hereunder, and to market and distribute the Products to End-UserCustomers within the assigned Territory.

##  

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## **                2.2****         **Reservation ofRights: FVC expressly reserves the right to distribute all Products in theassigned Territory through local or global original equipment manufacturers (an“OEM”) and through Tomen Cyber Systems such products as indicated in the SecondExtension Agreement dated March 25, 2002 with regard to the transaction withTelecommunications Advancement Organization of Japan (“TAO”).

 

# **3.0****          TERM. **ThisAgreement shall commence on the Effective Date, and shall continue for a twentyfour  (24) month period  unless otherwise terminated earlier asprovided in Section 13 (the “Term”).  Upontermination of the first year of the Term of this Agreement, the parties mayre-evaluate the terms of this Agreement, in light of the relationship betweenthe parties, and if the parties mutually agree to any changes to such terms andconditions, the parties shall execute a written amendment hereto.

 

# **4.0****          ORDER;ACCEPTANCE; DELIVERY.**

 

## **4.1**          Partnershall purchase the Products from FVC by issuance of its written purchase order,signed by an authorized representative of Partner. FVC shall provide Partner,within ten (10) days of receipt of Partner’s purchase order, with a writtenacceptance or rejection of Partner’s purchase order. Absent written rejectionfrom FVC within ten (10) days of receipt of a purchase order, the purchaseorder shall be deemed accepted. Only accepted purchase orders shall be binding;provided, however, that acceptance shall not be unreasonablywithheld.  Partner may modify or cancelany unaccepted purchase order(s) without obligation to FVC by providing writtennotice of such modification or cancellation to FVC.  However, such cancellation or modification shall not relievePartner of its obligation to comply with the Minimum Purchase Commitment (asdefined in Section 6.1).

 

## **4.2****         **FVC reserves the right, at its sole discretion, fromtime to time to discontinue or change any Product, or design or specificationsthereof, or enhance elements of this agreement, with thirty (30) days priornotification in writing to Partner.

 

## **4.3**          It isexpressly agreed that the terms and conditions of this Agreement supersede andreplace any and all pre-printed or other terms and conditions contained in anypurchase order, acceptance, confirmation or other document issued among theparties unless otherwise agreed to in writing on a date subsequent hereto.

 

## **4.4**          AllProducts delivered pursuant to the terms of this Agreement shall be suitablypacked for shipment in FVC’s standard shipping cartons, marked for shipment toPartner’s address set forth above or at such other address as the parties agreeupon, and delivered to the carrier agent F.O.B. FVC’s shipping location, atwhich time risk of loss shall pass to Partner. All freight, insurance, and other shipping expenses, as well as expensesfor any special packing requested by Partner, will be paid by Partner.  Notwithstanding anything to thecontrary in this Agreement, including, without limitation, the delivery andpassing of risk, title to the Products only (the Software being licensed, notsold, to Partner) will pass to Partner only upon full payment to FVCtherefore.  Until title in the Productshas passed, Partner shall be in possession of the Products in a fiduciarycapacity.  FVC reserves the right torepossess and resell any Products to which it has retained title, and FVC’sconsent to Partner’s possession of the Products and any right Partner may haveto possession of the Products shall in any event cease if any sum owed byPartner to FVC is not paid to FVC by the date when it is due, or if Partner isotherwise in breach of this Agreement

 
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## **4.5**          **Software License**

 

### **(a)**           Subject to the terms and conditionsof this Agreement, FVC hereby grants to Partner a non-exclusive andnon-transferable license, without the right to sublicense except to End-UserCustomers as expressly provided herein, in the assigned Territory during theTerm to use the Software and related documentation provided by FVC solely forPartner’s internal use and solely in connection with the sale and promotion ofthe Products to End-User Customers. Partner shall not disclose, furnish,transfer or otherwise make available the Software or any portion thereof orrelated documentation provided by FVC in any form to any third party (otherthan to an End-User Customer) and shall not duplicate the Software or any partthereof or any such related documentation.

 

### **(b)          **Notwithstandinganything to the contrary expressed or implied in this Agreement, Partner isauthorized to market, distribute or sublicense the Software only in object codeform and only to End-User Customers located in the Territory who prior totaking possession of the Software have executed a “Sublicense Agreement” as setforth below.   Each Sublicense Agreementmust contain the required provisions set forth in *Exhibit E* attached hereto,as well as provisions which provide equivalent or greater protection of FVC’sIntellectual Property Rights and confidential information than thoseprotections set forth in this Agreement. Partner shall maintain accuraterecords of all End-User Customers who have received copies of the Software andprovide FVC with a copy of each executed Sublicense Agreement no later thanthirty (30) days after its execution. Partner is responsible for ensuring thatall End-User Customers abide by the Sublicense Agreement and shall promptlyinform FVC of any breach thereof by any End-User Customer and assist FVC inenforcing its rights against any breaching End-User Customer.

###  

### **(c)**           Title to and ownership of and allIntellectual Property Rights in or related to the Software, relateddocumentation provided by FVC and all partial or complete copies of suchSoftware and related documentation permitted to be made hereunder or underSublicense Agreements shall at all times remain with FVC (or its licensors).This Agreement and Sublicense Agreements shall not be construed as a sale ofany rights in the Software, related documentation provided by FVC, any copiesthereof or any part thereof. All references in this Agreement or Sublicense Agreementsto sale, resale or purchase of the Products, or references of like effect,shall, with respect to the Software and related documentation provided by FVC,mean sublicenses of the Software and such related documentation to End UserCustomers who have entered into Sublicense Agreements pursuant to this Section.

 

### **(d)**           Partner may not modify, translate, orotherwise generate any derivative works from the Products or Software.  Partner shall not, and Partner shall notpermit third parties to, disassemble, decompile or otherwise reverse engineerthe Products or Software or attempt to reveal the trade secrets, know-how,source code, or structure underlying the Products or Software.

###  

### **(e)**           FVC SHALL HAVE NO LIABILITY TOPARTNER OR ITS END-USER CUSTOMERS WITH RESPECT TO ANY CLAIM OF PATENT ORCOPYRIGHT INFRINGEMENT WHICH (I) ARISES FROM THE COMBINATION OR UTILIZATION OFTHE PRODUCT WITH ANY ITEM OF HARDWARE OR WITH ANY MACHINE, DEVICE, COMPUTER ORSOFTWARE NOT FURNISHED OR APPROVED BY FVC, OR (II) BASED UPON A PRODUCT WHICHHAS BEEN USED IN A MANNER FOR WHICH IT WAS NOT DESIGNED.

 
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# **5.0****          OBLIGATIONSOF PARTNER AND FIRST VIRTUAL COMMUNICATIONS.**

 

## **5.1**          Partner shall use its best efforts topromote, market and distribute the Products in order to realize the maximumsales potential for the Products in the assigned Territory. Partner will notaccept orders from outside the assigned Territory without the express writtenconsent of FVC. Partner shall be solely responsible for all of its costs andexpenses related to advertising, marketing, promoting, and distributing theProducts, including all taxes associated with the marketing,distribution and delivery of the Products ordered hereunder, including but notlimited to sales, use, stamp-duty, excise, value-added, withholding and similartaxes and all customs, duties or other governmental impositions (“Taxes”). Partner may also be eligible to receivemarketing co-op funds, in accordance with the guidelines set forth in *Exhibit F*.

 

**5.2**          Tothe maximum extent allowed under applicable law, Partner shall not, during theTerm, advertise, promote, market, sell or otherwise transfer (i) the Productoutside the Territory, or (ii) any product or service which is competitive withthe Product.  Partner may advertise,promote, market, sell or otherwise transfer a competitive product, if Partnerobtains FVC’s prior written approval on a product-by-product basis.

##  

## **5.3**          FVC shall provide Partner withmanuals for the Products free of charge via online access to the Internet.  Such access will be subject to passwordprotection in order to restrict access and use of such manuals to Partner orits End-User Customers.

##  

## **5.4         **Upon execution of this Agreement and no laterthan on the first day of each calendar quarter thereafter, Partner shallprovide to FVC a forecast of Partner’s anticipated quarterly requirement forProducts for the next six (6) month period. Partner agrees to provide suchforecasts in form and format as may be reasonably requested by FVC, includingmachine-readable form.

##  

## **5.5**          Partner agrees to provide first andsecond level support to End-User Customers and all End-User Customers’questions shall be directed to and addressed by Partner.  Partner shall keep FVC informed as toproblems encountered and resolutions proposed and shall communicate promptly toFVC any and all modifications, design changes or improvements to the Productsuggested by any End User, or any employee or agent of Partner.  Partner further agrees that such informationshall be deemed FVC’s Confidential Information as governed under thisAgreement.  First and second levelsupport is generally defined as support-related questions that can be answeredby simply reading FVC product manuals, “read me” documents, Technical Supportweb page and/or by following logical debugging procedures.  Partner may request third level (morecomplex) support assistance from FVC’s technical service representatives bytelephone and/or e-mail.  Theserepresentatives are available during FVC’s normal business hours (8:00 am -8:00 PM PT) for reasonable consultation with respect to the use of theProducts.  Only Partner’s personnel whohave been specifically authorized by FVC will request such third level supportassistance.

 

## **5.6         **Partner agrees to send, at Partner’s soleexpense, appropriate personnel to the Product technical and sales trainingoffered by FVC, in order to develop such personnel’s ability to providepre-sales support as well as first and second level post-sales support on FVCproducts to End-User Customers.

 

**                5.7**          Ifnot already in place, Partner will establish access to Internet e-mail and theWorldwide Web to facilitate communications regarding technical and salesinformation and support.

##  

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##  

 

# **6.0****          OBLIGATIONSFOR THE TERM.**

 

Partnerand FVC agree to fulfill the following obligations during the Term:

 

**6.1**          **Minimum Purchase Commitment. **Partner agrees to sell and support the completeline of FVC’s rich media web conferencing products and services.  Partner shall purchase from FVC aminimum purchase amount as set forth on *Exhibit A* (the “Minimum PurchaseCommitment”).  If Partner fails to meet thisMinimum Purchase Commitment, then FVC shall notify Partner, in writing, of suchfailure (a “Failure Notice”) and Partner shall have [...***...] to purchaseProducts from FVC in order to meet such Minimum Purchase Commitment.  If Partner fails to meet such MinimumPurchase Commitment in such [...***...] period then FVC shall have the right torenegotiation the terms and conditions of this Agreement. Partner agrees that [...***...] is madein accordance with [...***...].

 

## **6.2         **Partner shall purchase from FVC a sufficientlevel of Products in order to demonstrate, test, prototype and trainstaff.  Partner shall alsodevelop and maintain sufficient knowledge of the industry, the Products, theSoftware, complementary product offerings, and competitive offerings (includingspecifications, features, and functions) so as to be able to demonstrate,differentiate and support the Products to End-User Customers.  Partner shall, at FVC’s request, take anactive part in any of FVC’s sales programs and marketing campaigns.

 

## **6.3**          Designated representatives of Partnerand FVC shall meet on a monthly basis to discuss sales of FVC products, suchdiscussions shall include Point of Sale (POS) information by region into whichthe sold items are delivered and installed.

##  

# **7.0****          PRICESAND COMMERCIAL CONDITIONS/TERMS.**

 

## **7.1**          The prices of the Products andaccompanying Product support to Partner shall be subject to discountlevels as outlined in *Exhibit A*off of FVC’s Recommended Selling Price List, which will be amended by FVC fromtime to time.

##  

## **7.2         **Full payment for the Products (including anyfreight, taxes or other applicable costs initially paid by FVC but to be borneby Partner) shall be made by Partner to FVC net [...***...] from the date of FVC shipment of theProducts.  All billing and payments shallbe in

##  

U.S. Dollars. Such payments may be made by a wire transfer to FVC’sbank account, at the following:

 

Bank Name:

Bank Address:

CA 95054Beneficiary Name:                               [...***...]

Account #:

ABA/Routing #:

 

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## [*] = CONFIDENTIAL TREATMENTREQUESTED

 

##  

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## **7.3**          Payment terms for Partner’s SalesCommitments for the [...***...], shallbe due and payable [...***...] from theend date of each respective [...***...].Payment terms of installment payment shall be due net [...***...] from the date of FVC shipment of the Products.

 

## **7.4         **Late payments shall accrue interest from the datedue until the date paid at a rate of [...***...] percent [...***...] per month orthe maximum rate permitted by applicable law, whichever is less.

 

## **7.5**          Prices for the Products are F.O.B.FVC’s designated facilities in the United States.  Prices are exclusive of all applicable Taxes.  Partner shall pay all Taxes associated withthe sale and delivery of all Products, and any collection costs, penalties andinterest, associated with the Taxes.

 

**7.6         **FVC shall be free to change the published listprices and discount schedules for any Products sold under this Agreement at anytime. In the event that FVC increases its prices, all Products shipped afterthe effective date of a price increase shall be at the new higher price exceptthat FVC shall honor all written Partner Purchase Orders received for Productsprior to notice of the price increase at the prices in effect at the time thePurchase Order was received. In the event that FVC [...***...] Productsordered.

 

**7.7**          Partner is free to determineits own price for the sale of the Products and license of the Software.  Although FVC may publish suggested pricelists, they are suggestions only and are not binding in any way.  Partner’s sole compensation for itsactivities under this Agreement is derived from the difference between theprices paid by Partner for the Products and the price at which such Productsare sold and licensed by Partner to End-Users Customers.

 

# **8.0****          LICENSE FORTRADEMARKS, SERVICE MARKS ANDTRADE NAMES.**

 

## **8.1**          **TrademarkLicense**.  Subject to thisAgreement and the additional provisions in Exhibit B, FVC hereby grants toPartner a license to use and display the FVC trademarks, tradenames, servicemarks and service names listed in Exhibit B (collectively, the “Trademarks”)solely in connection with the marketing of the Products during the Term.  Partner shall also have the right to representthat it is an authorized distributor of the Products and to advertise suchunder the Trademarks.

 

## **8.2.         Ownership and Restrictions**.  Partner acknowledges that FVC (or itslicensor) is the owner of the Trademarks and all Intellectual Property Rightsand goodwill associated therewith, and Partner agrees to do nothinginconsistent with such ownership.  Thenature and quality of all Partner’s activities in connection with the Products,this Agreement and the Trademarks, shall be of the highest standards andquality and Partner shall do nothing to degrade the ownership, prestige, image,reputation and goodwill of FVC or the Trademarks.  Partner shall comply with FVC’s instructions with respect to theuse of the Trademarks and the application of the Trademarks to any marketingmaterials.  FVC, at its discretion, mayterminate this trademark license if at any time it determines that Partner isusing the Trademarks in a manner that violates FVC’s then in effect trademarkpolicy.  Partner may not remove any copyright,trademark or other notice of ownership of the Intellectual Property Rightsassociated with the Products which has been affixed by FVC.  Partner shall not adopt or attempt toregister the Trademarks, or any 

##  

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## [*] = CONFIDENTIAL TREATMENTREQUESTED

 

 

 
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name, design or symbol confusingly similar thereto, including withoutlimitation as part of, or in connection with Partner’s business, private,substitute or other name or any design, symbol, product, service, letterhead,business card or other means of identification.  Promptly following termination or expiration of this Agreementfor any reason, Partner shall take all actions necessary to transfer and assignto FVC all rights, title and interest in and to the Trademarks and goodwillrelated thereto which Partner may have acquired as a result of this Agreementand shall promptly discontinue all uses of the Trademarks.  Partner shall cooperate with FVC if FVC (orits licensor) wishes to register the Trademarks in the Territory or in anyother country, including without limitation execute appropriate documents andprovide other reasonable assistance which FVC (or its licensor) may reasonablyrequire to that end.

 

# **9.0****          WARRANTIES.**

 

## **9.1         **FVC warrants, to Partner only, that the Productssold to Partner for distribution in the assigned Territory, as to hardwareonly, shall conform in all material respects to the published specificationsand shall be free from material defects in design, material and workmanship fora period of one (1) year from shipment to End-User Customer (the “WarrantyPeriod”).  FVC agrees to provide thewarranty obligations with respect to the Software Products as set forth in andin accordance with FVC’s current End-User Sublicense Agreement, a sample ofwhich is attached in *Exhibit C*.  In the event that any Product is found to be defective, FVCshall, at its sole discretion, either replace or repair the defective Productat its cost. Partner shall make no additional warranties on behalf of FVC.  FVC reserves the right to change itswarranty policies at any time.  **Partneracknowledges that the replacement Products provided by FVC may be fullyoperational refurbished units.** Under no circumstances shall thewarranties set forth in this Section 9 apply to any Product that has been soldoutside the assigned Territory, customized or modified without FVC’s writtenconsent, or damaged or misused

##  

## **9.2**          Inthe event any Product is found nonconforming during the Warranty Period,Partner shall notify FVC, in writing, of the serial numbers of suchnonconforming Products and reason for nonconformance and shall request from FVCa return merchandise authorization (“**RMA**”) to return the nonconformingProduct.  FVC shall issue such RMApromptly upon request.  Withinten (10) days after receipt of the written RMA number, Partner shallreturn to FVC the rejected Product in accordance with FVC’s shippinginstructions, in its original shipping carton with the RMA number displayed onthe outside of the carton.  FVC reservesthe right to refuse to accept any rejected Product that does not bear an RMAnumber on the outside of the carton.  Aspromptly as possible, but no later than thirty (30) days after receipt byFVC of properly rejected Product, FVC shall, at its option and expense, either(i) repair or replace the nonconforming Product with a functional replacement,or (ii) refund to Partner the purchase price of such rejected Product.  FVC shall be liable for, and bear all costsassociated with, the shipment, repair, replacement or refund of allnonconforming Products under this Section 9.2. Partner hereby agrees that the remedy in this Section 9.2 shall be itssole recourse or remedy in the event of any Product nonconformity.  Warranty repairs or replacements shall notconstitute an extension of the original Warranty Period.  Any repaired or replaced Product reshippedto Partner pursuant to this Section 9.2 shall not count toward the MinimumPurchase Commitment...

 

## **9.3         **Partner will expressly indicate to their End-UserCustomers that they must look solely to Partner in connection with anyproblems, warranty claims, or other matters concerning the Product.

 

## **9.4         **Partner Warranties.  Partner hereby represents, warrants andcovenants the following on a continuing basis during the Term:

 

 
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### (f)  Partner is and shall remain a Japanesecorporation duly organized, validly existing and in good standing under thelaws of Japan with all necessary corporate power and authority to conduct itsbusiness and duly qualified to transact business in each jurisdiction in theTerritory and perform this Agreement to the full extent contemplatedherein.  Furthermore, the individualexecuting this Agreement is an authorized representative of Partner with thepower to bind Partner to this Agreement;

 

### (g)  Except as set forth in Section 14.1, noconsent, approval, license, permit, authorization, declaration, filing,registration, or similar formality of any kind is or shall be required to bemade or obtained in the Territory by either party in order to lawfullyimplement this Agreement;

###  

### (h)  Neither the execution or implementation ofthis Agreement, nor any of the terms, conditions, warranties, liability orwarranty limitations or exclusions in this Agreement, nor the performance byPartner of its obligations under this Agreement, does or will (i) contraveneany provision of Partner’s organizational documents; or (ii) conflict with anyagreement, understanding or obligation to which Partner is a party; or (iii) tothe best of Partner’s knowledge, any applicable law or regulation in theTerritory;

 

### (i)  Partner is in good financial condition,solvent and able to pay its bills when due and shall retain the ability toorder and pay for all Products Partner is obliged to purchase hereunder.  From time to time, on reasonable notice byFVC, Partner shall furnish financial reports as necessary to determinedistributor’s financial condition;

 

### (j)  Partner shall not make any statement,representation, or warranty or assume any obligation or liability regarding FVCor the Products which is not previously authorized in writing by FVC;

 

### (k)  Partnershall perform and implement this Agreement and use the licenses granted to itby FVC under this Agreement only for lawful purposes and in accordance withapplicable law and regulations and without violating any third party rights.

 

**                9.5**          ALL REPRESENTATIONS, WARRANTIES ANDCOVENANTS MADE BY FVC IN THIS AGREEMENT ARE MADE SOLELY TO PARTNER AND NOT TOANY END-USER CUSTOMER OR OTHER THIRD PARTY. THE FOREGOING WARRANTIES IN THISSECTION 9 ARE THE ONLY WARRANTIES OFFERED BY FVC HEREUNDER. TO THEMAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, FVC HEREBY DISCLAIMS ALL OTHEREXPRESS, IMPLIED, STATUTORY OR OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION,ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  IF APPLICABLE LAW DOES NOT ALLOW ANY OF THEDISCLAIMERS OR LIABILITY LIMITATION SET FORTH IN THIS AGREEMENT, THEN SUCHDISCLAIMERS OR LIMITATIONS SHALL NOT APPLY. WITHOUT LIMITING THE GENERALITY OF THE FORGOING, FVC DOES NOT MAKE, ANDEXPRESSLY DISCLAIMS, ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, RELATED TO ANYTHIRD PARTY INTELLECTUAL PROPERTY, TECHNOLOGY OR INFORMATION EMBEDDED IN THEPRODUCTS OR USED OR PROVIDED IN CONNECTION WITH THIS AGREEMENT.  FVC SHALL HAVE NO LIABILITY TO ANY END-USERCUSTOMER FOR REPRESENTATIONS OR WARRANTIES MADE BY PARTNER TO SUCH END-USERCUSTOMER THAT ARE INCONSISTENT WITH OR IN EXCESS OF THE WARRANTY IN SECTION9.1.

 
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#  

 

## **10.0        LIMITATION OF LIABILITY.  **IN NO EVENT SHALL FVC BELIABLE TO PARTNER, AN END-USER CUSTOMER, OR ANY THIRD PARTY FROM ANY CAUSEWHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT(INCLUDING NEGLIGENCE), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS,REVENUES, SAVINGS, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF USE DAMAGES)ARISING FROM OR RELATED TO THE MANUFACTURE, SALE, OR SUPPLY OF THE PRODUCTS,EVEN IF FVC HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES OR LOSSES.  IN NO EVENT SHALL FVC’S CUMULATIVE LIABILITYEXCEED THE AMOUNT PAID BY PARTNER TO FVC UNDER THIS AGREEMENT.  PARTNER UNDERSTANDS AND AGREES THAT THELIMITED WARRANTY, LIMITED REMEDIES AND LIMITED LIABILITY PROVISIONS OF THISAGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF FVC’S BARGAIN HEREUNDER ANDTHAT FVC WOULD NOT ENTER INTO THIS AGREEMENT ON THESE TERMS IN THE ABSENCE OF SUCHPROVISIONS.

 

# **11.0        INDEMNIFICATION.**

 

## **11.1**        FVC agrees to indemnify and hold Partnerharmless from and against any and all claims, actions, losses or damages,including reasonable attorney’s fees and costs arising from a third party claimalleging: (a) the infringement of a third party’s U.S. patent orcopyright; (b) a breach by FVC of a warranty as set forth in Section 9.1 above;or (c) personal injury and product liability, which arise in whole or in partfrom the normal and intended use of a Product hereunder by a End-UserCustomer.  This indemnificationobligation is conditioned upon the following: Partner agrees to promptly notifyFVC in writing of any such claim and provide reasonable assistance at FVC’sexpense in the defense or settlement thereof, and provided further that FVCshall have sole control of the defense and all related settlement negotiationswith respect hereto. FVC shall not be responsible for indemnification for anysettlement made without its written consent.

 

## **11.2**        If a Product or any part thereofbecomes, or in FVC’s opinion is likely to become, the subject of a claim ofinfringement of an intellectual property right of a third party, Partner shallpermit FVC, at its sole option and expense, (i) to procure for Partner or itsEnd-User Customers the right to continue using such Product, (ii) to replace ormodify such Product so that it becomes non-infringing, or (iii) to grantPartner a refund for such product as depreciated in accordance with thestraight line method of depreciation for three years.  The foregoing states FVC’s total liability and Partner’s sole andexclusive remedy for any and all claims Partner may have against FVC arisingfrom or relating to such infringement.

 

## **11.3**        Notwithstanding any limitations setforth in this Agreement, Partner shall indemnify and hold FVC harmless from andagainst all claims, liabilities, damages, losses and expenses, includingreasonable attorney’s fees, which FVC may incur, arising from or relating tothird party claims based on the conduct of Partner’s operations under thisAgreement, including but not limited, to any breach by Partner of thisAgreement.

##  

**                11.4**        NOTWITHSTANDINGANY OTHER PROVISION OF THIS AGREEMENT, FVC SHALL HAVE NO LIABILITY TO PARTNEROR ITS END-USER CUSTOMERS WITH RESPECT TO ANY CLAIM OF PATENT, COPYRIGHT OR ANYOTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT WHICH (I) ARISES FROM THECOMBINATION OR 

 

 
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## UTILIZATION OF THE PRODUCT WITH ANY ITEM OF HARDWARE ORWITH ANY MACHINE, DEVICE, COMPUTER OR SOFTWARE NOT FURNISHED OR APPROVED BYFVC, (II) BASED UPON A PRODUCT WHICH HAS BEEN USED IN A MANNER FOR WHICH IT WASNOT DESIGNED, OR (III) USE OF A SUPERSEDED OR ALTERED RELEASE OF A PRODUCTIF SUCH INFRINGEMENT WOULD HAVE BEEN AVOIDED BY THE USE OF CURRENT UNALTEREDRELEASES OF THE PRODUCT THAT FVC PROVIDES TO PARTNER OR ITS END-USER CUSTOMERS.

 

# **12.0****        CONFIDENTIALITY.**

#  

# **12.1       **It is expected thatthe parties will disclose to each other certain confidential information(“Confidential Information”) and each party recognizes the value and importanceof the protection of the other’s Confidential Information.  All Confidential Information of one party(the “Disclosing Party”)  disclosed tothe other party (“Recipient”) shall remain the sole property of the DisclosingParty (or its licensors), which shall own all rights, title, interest andIntellectual Property Right therein. Only information which is identified as confidential pursuant to thenext paragraph shall be deemed Confidential Information hereunder.  The pricing and other terms of thisAgreement shall be FVC’s Confidential Information.

 

**12.2       **A Disclosing Party maydesignate information as confidential by: (a) stamping written information orother physical media as “Confidential” prior to disclosure; (b) indicating inthe visual display of a program that the program is confidential; (c)identifying oral information as confidential at the time of disclosure toRecipient, or (d) notifying the Recipient in writing prior to disclosure that certainspecifically identified types of information are considered to beconfidential.  

**12.3       **Except as expresslyallowed in this Agreement, both parties agree not to duplicate in any mannerthe other’s Confidential Information or to disclose it to any third party or toany of their employees not having a need to know same to implement thisAgreement.  Each Recipient agrees tokeep Disclosing Party’s Confidential Information in a safe and secure place;protect it from unauthorized use or disclosure, and monitor access to it.  Recipient shall use the other’s ConfidentialInformation solely for the implementation of this Agreement and for no otherpurpose, whether for Recipient’s own benefit or the benefit of any third party.  Each party shall immediately notify theother upon discovery of any loss or unauthorized disclosure of the ConfidentialInformation of the other party.

 

**12.4       **Each party’sobligations under this Agreement with respect to any portion of the otherparty’s Confidential Information shall terminate or not apply when Recipientcan prove that it: (i) is or subsequently becomes publicly available or knownto Recipient without breach of any obligation owed to the Disclosing Party;(ii) became known to the Recipient prior to the Disclosing Party’s disclosureof such information to the Recipient; (iii) is used by the Recipient to thelimited extent necessary to enforce any of its rights, claims or defensesunder, or as otherwise contemplated in, this Agreement; or (iv) wascommunicated in response to a valid order by a court or other governmentalbody, by subpoena, law or other such rules, or was necessary to establish therights or obligations of either party under this Agreement and such disclosurecomplies with the requirements set forth below

 

**                12.5       **If the Recipient orany of the Recipient’s representatives is required to disclose any of theDisclosing Party’s Confidential Information pursuant to Section 12.3, theRecipient will, as soon as reasonably practicable, provide the Disclosing Partywith written notice of the applicable 

 
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subpoena, law, or rule so that the Disclosing Partymay seek a protective order or other appropriate remedy.  The Recipient and its representatives willcooperate fully with the Disclosing Party to obtain any such protective orderor other remedy.  If the DisclosingParty elects not to seek, or is unsuccessful in obtaining, any such protectiveorder or other remedy in connection with any requirement that the Recipient discloseConfidential Information, and if the Recipient furnishes the Disclosing Partywith a written opinion of reputable legal counsel confirming that thedisclosure of Confidential Information is required pursuant to applicablesubpoena, law or rule, then the Recipient may disclose such ConfidentialInformation to the extent required; provided, however, that the Recipient andits representatives will use commercially reasonable efforts to ensure thatsuch Confidential Information is treated confidentially by each person orentity to whom it is disclosed.

 

**12.6       **ConfidentialInformation shall not be reproduced or used in any form or for any purposeexcept as required to implement this Agreement.  Any reproduction of any Confidential Information of the DisclosingParty by Recipient shall remain the property of the Disclosing Party and shallcontain any and all confidential or proprietary notices or legends which appearon the original.

 

# **13.0****        TERMINATION.**

 

## **13.1**         This Agreement may be terminated by FVCor by Partner upon thirty (30) days written notice to the other party in theevent that the other party materially breaches the terms and conditions hereofand fails to cure said breach within the notice period provided herein; exceptthat a party may terminate this Agreement immediately, upon written notice fora breach of Section 4.5, 4.6, 9.4, 12, 14 or 15.6.  Termination of this Agreement shall not affect the rights andobligations, including payment or delivery obligations under any outstandingpurchase orders, of the parties accruing prior thereto.

 

## **13.2**        If FVC or Partner shall become bankruptor insolvent, or if a petition of bankruptcy is filed against either party, orif a receiver is appointed for either party, or if the ownership or control ofeither party is materially changed, the other party shall have the right toterminate this Agreement immediately upon written notice to such other party.

 

## **13.3**        Any termination of this Agreement by FVCor Partner under this Section 13 herein shall not constitute an election ofremedies by the terminating party and the terminating party shall, in addition,have all other remedies provided at law.

 

## **13.4**        Upon termination of this Agreement forany reason or upon expiration hereof, each party shall promptly return to theother party all Confidential Information, as defined in Section 12 herein,provided during the Term.  Anyoutstanding payment obligation and Sections 1, 4.5(b), 4.5(c), 4.5(d), 4.5(e),9.6, 10, 11, 12, 13.4, 14, and 15 shall survive any termination or expirationof this Agreement. Licenses to End-User Customers shall also survive.

 

# **14.0****        COMPLIANCE WITH APPLICABLE LAW**.

#  

**                14.1       **Partner warrants, represents and covenantsto FVC, for the duration of the Term, that it will comply with all applicablelaws and regulations in the implementation of this Agreement, including (i)obtaining any and all approvals, registrations, licenses, certifications,permits, or other clearances required prior to the development, marketing,sale, licensing or any other transfer or use of any Product, and otherwisetaking all necessary actions so that all 

 
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# Products fully satisfy industry or any countryspecific standards, which are applicable to any Product; and (ii) otherwisecomplying with any and all applicable national, federal, regional, state, orlocal law, statute, ordinance, rule, environmental, communications or otherregulation, judgment, decree, requirement, order, procedure, or public policyof any legislative, judicial, administrative, governmental, or regulatory body,agency, or authority of any kind, in any and all jurisdictions in theTerritory.  Without limiting thegenerality of the foregoing:

 

## **14.2        GovernmentApproval and Registration.** Partner shall take all necessary steps to gain official government andindustry acceptances required in connection with this Agreement and the use,manufacture and sale of the Products. If any approval or registration of this Agreement (the “**RequiredRegistrations**”), shall be required, either initially or at any timeduring the Term, in order to give this Agreement legal effect in the Territoryor otherwise fully effectuate this Agreement in accordance with its intendedpurpose, Partner agrees, at its sole expense, to take whatever steps may benecessary to secure such Required Registration, immediately and prior tocommencing any activities which are subject to such approval or registration.

 

## **14.3        ExportControls.**  Partnershall not, directly or indirectly, export or re-export, or knowingly permit theexport or re-export of the Products or any component thereof, or any otheritems, to any country for which the United States Export Administration Act orany regulation thereunder, or any other similar United States law orregulation, including without limitation the United States Arms Export ControlAct, requires an export license or other United States governmental approval,unless the appropriate export license or approval has first been obtained.

 

## **14.4        CorruptPractices.**  Partnershall not, directly or indirectly, make, offer or agree to make or offer onbehalf of FVC, any loan, gift, donation or other payment, directly orindirectly, whether in cash or in kind, for the benefit of or at the directionof any candidate, committee, political party, political function or governmentor government subdivision, or any individual elected, appointed or otherwisedesignated as an employee or officer thereof, for the purposes of influencingany act or decision of such entity or individual or inducing such entity orindividual to do or omit to do anything in order to obtain or retain businessor other benefits in violation of the United States Foreign Corrupt PracticesAct.

 

## **14.5        Boycott.**  Partner shall not, directly or indirectly,take any action that would cause FVC to be in violation of United Statesanti-boycott laws under the United States Export Administration Act or theUnited States Internal Revenue Code, or any regulation thereunder.

 

# **15.0****        MISCELLANEOUS.**

 

## **15.1        GoverningLaw.**  This Agreement shall be governed, construedand enforced solely and exclusively in accordance with the laws of the State ofCalifornia, USA, without regards to its conflict of laws principles.  The parties agree that the United Nations Conventionon Contracts for the Sale of International Goods shall not apply to thisAgreement.

 

**                15.2        Arbitration.**  Inthe event there is a dispute between the parties arising out of or otherwiserelating to this Agreement, the parties agree to promptly meet in good faith totry to resolve such dispute, and to escalate the dispute to senior managementof each party for resolution.  Any andall such disputes that cannot be so resolved by the parties within ten (10)days following such meeting, shall be settled solely and exclusively byarbitration in Santa Clara, 

 
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## California, USA pursuant to the commercial rules thenin effect of the International Chamber of Commerce.  The merits of the dispute shall be resolved in accordance withthe laws of the State of California, USA. The arbitration shall be conducted by an arbitration panel consisting ofthree (3) arbitrators, each of whom shall be knowledgeable in the subjectmatter hereof.  Each party shall selectone (1) of the arbitrators, and the two (2) selected arbitrators shall selectthe third arbitrator.  The arbitrationshall be conducted in the English language, and all documents shall besubmitted in English or be accompanied by an English translation.  The arbitrators will provide a written explanationto the parties of any arbitration award. Any decision rendered by the arbitration panel shall be binding, finaland conclusive upon the parties, and a judgment thereon may be entered in, andenforced by, any court having jurisdiction over the party against which anaward is entered or the location of such party’s assets, and the parties herebyirrevocably waive any objection to the jurisdiction of such courts based on anyground, including without limitation, improper venue or forum non-conveniens.  The parties and the arbitration panel shallbe bound to maintain the confidentiality of this Agreement, the dispute and anyaward, except to the extent necessary to enforce any such award.  The prevailing party, if a party is sodesignated in the arbitration award, shall be entitled to recover from theother party its costs and fees, including attorneys’ fees, associated with sucharbitration.  Except where clearlyprevented by the subject matter of the dispute, both parties shall continueperforming their respective obligations under this Agreement while this disputeis being resolved.

 

Notwithstanding the foregoing, nothing contained in this Agreementshall prevent a party from seeking injunctive or other equitable relief fromany court of competent jurisdiction to protect such party’s rights under thisAgreement, regardless of whether arbitration or other legal proceedings havecommenced.

 

## **15.3        Rights.**  Thewaiver of any right accruing to any party hereunder by failure of that party toexercise that right in a given instance, or delay in exercising that right,shall not be deemed a waiver of said right in future instances of a similarnature.

 

## **15.4        Notice.**  With theexception of notification of termination or non-renewal pursuant to Section 14herein, which shall be made by registered air mail, return receipt requested orother method which provides for proof of receipt, all notices, requests orother communications which are necessary or desirable in connection with thisAgreement shall be acceptable if delivered in person or by facsimile, telex orother telegraphic means addressed to the receiving party, at its addressappearing on the first page herein. Delivery shall be deemed effective when thecommunication is received by the party to whom it is addressed.

 

## **15.5        Amendments.**  No modification, termination, extension,renewal or waiver of any provisions of this Agreement shall be binding upon anyparty unless made in writing and signed by an authorized officer orrepresentative of each of the parties.

 

## **15.6        IndependentContractor.**  No party shall, for any purpose, be deemedto be an agent of the other party and the relationship among the parties shallonly be that of independent contractors. No agency, employment, partnership, franchise, or other relationship iscreated hereunder.  Except as expresslyprovided in this Agreement, no party shall have any right or authority toassume or create any obligations or to make representations or warranties onbehalf of the other party in any respect whatsoever.

 

## **15.7        ForceMajeure.**  No party shall be liable to any other partyfor failure or delay in the performance of any of its obligations under thisAgreement for the period and to the extent that such 

##  

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## failure or delay is caused byriots, curtailments, civil commotion, wars, hostilities between nations,governmental laws, orders or regulations, acts of God, storms, fires, strikes,explosions or other similar or different contingencies beyond the reasonablecontrol of the respective party.

 

## **15.8        Non-assignability.**  Partnershall have no right to transfer or assign any rights or obligations hereunderwithout the written consent of FVC, such consent not to be unreasonablywithheld or delayed.  FVC may freelyassign this Agreement provided that any such assignee agrees in writing to bebound by the terms of this Agreement. Any assignment or transfer in violation of this Section 14.8 is null andvoid.

 

**15.9        Publicity.**  Partner will not publish or otherwisedisseminate any news release or other marketing material that references FVCwithout the FVC’s prior written consent, which consent will not be unreasonablywithheld or delayed.

##  

**15.10      Attorneys’Fees. **In the eventthat any action or proceeding is brought in connection with this Agreement, theprevailing party shall be entitled to recover its costs and reasonableattorneys’ fees following a final judgment or arbitration award.

 

**15.11      Agreement in English**.  The parties acknowledge that this Agreementis drafted and executed in, and shall be solely governed by the Englishlanguage, which shall control, in all respects, the construction andinterpretation of this Agreement.

 

**15.12      Severability**.  If one or more provisions in this Agreementare ruled entirely or partly invalid or unenforceable by any court orgovernmental authority of competent jurisdiction, then: (i) the validity andenforceability of all provisions not ruled to be invalid or unenforceable shallremain unaffected; (ii) the effect of such ruling shall be limited to the bodymaking the ruling; (iii) the provision(s) held wholly or partly invalid orunenforceable shall be deemed amended, and the Parties shall reform theprovision(s) to the minimum extent necessary to render them valid andenforceable in conformity with the parties’ intent as manifested herein; and(iv) if the ruling, or the controlling principle of law or equity leading tothe ruling, is subsequently overruled, modified, or amended, then theprovision(s) in question, as originally set forth in this Agreement, shall bedeemed valid and enforceable to the maximum extent permitted by the newcontrolling principle of law or equity. WITHOUT LIMITING THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT EACHAND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES LIMITATION OF LIABILITY,DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TOBE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION AND TO BE ENFORCED ASSUCH.  FURTHER, IT IS EXPRESSLYUNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TOHAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY ANDEXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT

 

**15.13      EntireAgreement.** This Agreementand Exhibits A, B, C, D, E, and F hereto completely and exclusivelystates the agreement of the parties regarding its subject matter.  It supersedes, and its terms govern, allprior or contemporaneous understandings, agreements, or other communicationsbetween the parties, oral or written, regarding such subject matter.

 

 
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**WITNESS HEREOF,** the Parties hereto have executed this Agreementas of the Effective Date hereof by a duly authorized representative.

 
| **NET ONE SYSTEMS** | **FIRST VIRTUAL COMMUNICATIONS, Inc.** |
|---------------------|----------------------------------------|
| (Partner)           |                                   |
|                |                                   |
| By:                 | /s/  KAZUO SATO                        |   | By: | /s/ TIM A. ROGERS |   |
|                |                                   |
| Name:               |                                   | Kazuo Sato |   | Name: | Tim  A. Rogers |   |
|                |                                   |
| Title:              |                                   | President, CEO |   | Title: | CFO |   |
| (Print)             | (Print)                                |
|                |                                   |
| Date:               |                                   | April  17, 2002 |   | Date: |   |   |
|                     |                                        |  |  |  |  |  |  |  |  |  |  |

 
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**EXHIBIT A**

 

**SALESCOMMITMENT AND DISCOUNTS**

 

**MinimumPurchase  Commitment:**

 

[...***...]

 

In addition to the Minimum Purchase Commitments,listed above, partner will use commercially reasonable efforts to meet thefollowing purchase targets:

 

[...***...]

 

**DISCOUNT LEVELS**

 

FVC offers the following product discountsfrom its published Book Price at the timeof order.  From time to time, FVCreserves the right to add new products to this Discount Schedule or toadjust prices relative to market conditionsand dynamics.

 

**Product Volume Discount**

 

[...***...]

 

[...***...]

 

[...***...]shall mean FVC products [...***...] for the [...***...].

 

[...***...]FVC will provide [...***...] to be in effect until [...***...].

 

**SUPPORT PRICES**

 

During the Term, [...***...], beginning on the[...***...] of the [...***...].  [...***...],beginning on the [...***...] of the 

[...***...]. [...***...], beginning on the [...***...] of the [...***...].

 

----

## [*] = CONFIDENTIAL TREATMENTREQUESTED

 
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**EXHIBIT B**

 

**LICENSE FORTRADEMARK****S, SERVICE MARKS AND TRADE NAMES**

 

1.       Partner may use theTrademarks listed in Section 4 below, as may be supplemented from time to timeby FVC. . Partner agrees to submit to FVC any published material not previouslyreviewed by FVC containing references to the Products for FVC’s approval priorto the publication or release of such published material. Such approval shallnot be unreasonably withheld. Partner shall not challenge FVC’s rights to usethe Trademarks that FVC may apply to or use in connection with the Products. IfPartner in the course of its business in the resale of the Products acquiresany goodwill or reputation in any of the Trademarks of FVC applied thereto,then at the expiration or termination of this Agreement all such goodwill orreputation automatically shall vest in FVC without any separate payment orother consideration of any kind to Partner, and Partner agrees to take all suchactions necessary to effect such vesting.

 

2.       FVC shall have the soleability and responsibility to register the Trademarks in assigned Territory.However, Partner shall, at the request and expense of FVC, do such acts orthings as FVC may reasonably require for the purpose of FVC’s obtaining,maintaining, enforcing and preserving any of the Trademarks or otherproprietary rights of FVC in the assigned Territory, provided, however, thatPartner agrees that only FVC has the right to enjoin any infringement orregistration by a third party of the Trademarks or similar rights. In the eventthat any unlawful copying of the Products, infringement of FVC’s rights in theProducts, or infringement or registration by a third party of the Trademarks orother property rights of FVC in the assigned Territory comes to the attentionof Partner, Partner shall immediately inform FVC in writing, stating the fullfacts of the infringement or registration known to it, including the identityof the suspected infringer or registrant, the place of the assertedinfringement or registration and evidence thereof. Partner agrees to reasonablycooperate with FVC, at the expense of FVC, if FVC sues to enjoin suchinfringements or to oppose or invalidate any such registration.

 

3.       In order to comply withFVC’s quality control standards, Partner shall (i) use the Trademarks incompliance with all relevant laws and regulations; (ii) accord FVC the right toinspect during normal business hours, without prior advance notice, Partner’sfacilities used in connection with efforts to sell the Products in order toconfirm that Partner’s use of such Trademarks is in compliance with thisprovision; and (iii) not modify any of the Trademarks in any way and not useany of the Trademarks on or in connection with any goods or services other thanthe Products.

 
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**4.      Trademarks, Service Marks and Trade Names:**

 

FVC

Click To Meet

CUseeMe

Access NGI

I-Caster

I-Meter

I-Studio

I-Recorder

I-Relay

V-Cache

V-Conference

V-Switch

V-NIC

VC-NIC

V-Caster

V-Gate

V-Gate323

Video Access Node

(VaN)

MOS

 
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**EXHIBIT C**

 

**END-USERSOFTWARE LICENSE AGREEMENT**

 

**FIRST VIRTUAL COMMUNICATIONS**

**SOFTWARE LICENSE AGREEMENT**

 

First Virtual Communication Inc. (“**FVC**”) is providing you a license to theassociated Software (the “**Software**”) and related printed orelectronic materials (the “**Documentation**”) subject to the terms ofthis Software License Agreement (the “**Agreement**”).

 

**IMPORTANT – PLEASE READ CAREFULLY**

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND FVC FOR THE SOFTWARE, WHICHINCLUDES COMPUTER SOFTWARE AND RELATED DOCUMENTATION.  BY CLICKING ON THE “I AGREE” BUTTON BELOW, YOU ACKNOWLEDGE THATYOU HAVE READ AND UNDERSTAND THE FOLLOWING TERMS AND AGREE TO BE BOUND BYTHEM.  IF YOU DO NOT AGREE TO THESETERMS, FVC IS UNWILLING TO GRANT YOU THIS LICENSE AND YOU SHOULD CLICK ON THE“I DO NOT AGREE” BUTTON, IN WHICH CASE: (1) IF YOU RECEIVED THIS SOFTWARE ONMAGNETIC MEDIA OR CD-ROM, PROMPTLY RETURN THE UNUSED SOFTWARE TO THE PLACE FROMWHICH YOU OBTAINED IT; OR (2) IF YOU RECEIVED THIS SOFTWARE VIA DOWNLOAD FROMAN INTERNET WEB SITE, THEN YOU MUST DELETE ALL OF THE DOWNLOADED FILES AND YOUMAY OBTAIN A REFUND IN ACCORDANCE WITH THE REFUND POLICY OF SUCH INTERNET WEBSITE.

#  

# 3.LICENSE

The Software and Documentation are licensed, not sold, to you.  You have a nonexclusive and nontransferablelicense to install and use the associated Software and Documentation.  This Software can only be used on the numberof computers for which you have obtained a license from FVC.  You may physically transfer the Softwarefrom one computer to another provided that the Software is used on no more thanone computer at a time.  You agree thatthe Software and Documentation belong to FVC. You agree to keep confidential and use your best efforts to prevent andprotect the contents of the Software and Documentation from unauthorizeddisclosure or use.  FVC reserves allrights, title and interest to the Software and Documentation not expresslygranted to you under this Agreement.

 

# 4.SCOPEOF LICENSE

The Software is licensed solely for your personal use or the internalbusiness use of your business entity. This license gives you the right to install and use one (1) copy of theSoftware solely in combination with a single computer (the “**Computer**”).  The Computer must be owned by you or yourbusiness entity, or provided to you under a third party agreement.  Each separate person or business entity isrequired to obtain a separate license from FVC for each Computer upon which theSoftware will be utilized.  If theSoftware is installed on a network server or other system that allows sharedaccess to the Software, you agree to limituse of the Software to the number of individuals for which you have acquired alicense from FVC.  In addition, youagree to provide technical or procedural methods to prevent use of theSoftware by individuals not specifically licensed to use the Software pursuantto this Agreement.  You shall not use any software or hardware,including, but not limited to “multiplexing” or “pooling” software or hardware,to reduce the number of direct connections to the Software from clients,workstations or computers.  FVCis not required to provide any maintenance or support services with respect tothe Software under this Agreement. You may make one (1) copy of the Softwarefor backup purposes if FVC’s copyright notice is included.

#  

# 5.RESTRICTIONS

You are not permitted, nor can you allow any third party, to modify,translate, reverse engineer, decompile, disassemble (except to the extentapplicable laws specifically prohibit such restrictions) or create derivativeworks based on the Software or Documentation, or any portion thereof.  You are not permitted, nor can you

 
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allow any third party, to copy the Software or Documentation except asspecifically provided by this Agreement. ** **TheSoftware is licensed as a single product. You are not permitted, nor can you allow any third party, to separatethe Software’s component parts for use on more than one (1) computer. ** **You are not permitted to sell,rent, lease, lend or otherwise transfer the Software or Documentation on apermanent or temporary basis.  You arenot permitted, nor can you allow any third party to remove any proprietarynotices, labels or trademarks on the Software or Documentation.  You are not permitted, nor can you allow anythird party, to use FVC’s or FVC’s suppliers’ name, logos, or trademarks in anymanner including, without limitation, in your advertising or marketingmaterials, except to the minimum extent necessary to affix the appropriatecopyright or other proprietary notices as required herein. You may notsublicense the Software, or assign, delegate or otherwise transfer this licenseor any of the related rights or obligations for any reason.  Any attempt to make any such sublicense,assignment, delegation or other transfer by you shall be void.

#  

# 6.UPGRADES

If this version of the Software is an upgrade from another version orother product, this upgrade License supersedes and replaces any previousLicense.  You may use the Software onlyin conjunction with the upgraded product, unless you destroy the upgradedproduct.

#  

# 7.OWNERSHIP& COPYRIGHT

All title, ownership rights, and intellectual property rights in and tothe Software and Documentation and any copies thereof are vested in and shallremain in FVC and/or its suppliers.  Youagree that you neither own nor hereby acquire any claim or right of ownershipto the Software and Documentation or to any related patents, copyrights,trademarks or other intellectual property. You own only the magnetic or other physical media on which the Softwareand related Documentation are recorded or fixed.  This license is not on sale of the original or any subsequentcopy.  The Software and theDocumentation is protected by the copyright laws and other intellectualproperty laws of the United States and international treaties.  You may not copy any Documentation.  You may not copy the Software (or thislicense) except to provide the permitted backup copy and to load the Softwareinto the computer as part of executing the Software.  **ANY AND ALL OTHER COPIES OF THIS SOFTWARE AND ANY COPY OF THEDOCUMENTATION MADE BY YOU ARE IN VIOLATION OF THIS LICENSE.**

#  

# 8.TERMAND TERMINATION

The license is effective until terminated.  You may terminate this license at any time by destroying theSoftware and Documentation and the permitted backup copy.  This license automatically terminates if youfail to comply with its terms and conditions. You agree that, upon suchtermination, you will destroy (or permanently erase) all copies of the Softwareand Documentation.  You also agree that,upon termination, you will return the original Software and Documentation toFVC, together with any other material you have received from FVC in connectionwith the Software.

 

# 9.LIMITEDWARRANTY

If the Software is provided on magnetic media or CD-ROM, FVC warrantssuch media to be free from defects in materials and workmanship under normaluse for ninety (90) days from date that you obtain the Software.  EXCEPT FOR THIS LIMITED WARRANTY, THESOFTWARE AND THE DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANYKIND EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THEIMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

Some jurisdictions do not allow the exclusion of implied warranties, sothe above exclusion may not apply to you. This warranty gives you specific legal rights and you may also haveother rights, which vary, from jurisdiction to jurisdiction.

 
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# 10.LIMITATIONOF LIABILITY AND REMEDIES

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW: (I) FVC’S ENTIRELIABILITY AND YOUR EXCLUSIVE REMEDY IN CONNECTION WITH THE SOFTWARE AND THEDOCUMENTATION SHALL BE THAT YOU ARE ENTITLED TO RETURN THE DEFECTIVE MEDIACONTAINING THE SOFTWARE TOGETHER WITH THE DOCUMENTATION TO THE MERCHANT.  AT THE OPTION OF THE MERCHANT, YOU MAYRECEIVE REPLACEMENT MEDIA CONTAINING THE SOFTWARE AND DOCUMENTATION THAT CONFORMSWITH THE LIMITED WARRANTY OR A REFUND OF THE AMOUNT PAID BY YOU; AND, (II)  IN NO EVENT WILL FVC BE LIABLE FOR ANYINDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF YOUR USE OR INABILITY TO USETHE SOFTWARE INCLUDING, BY WAY OF ILLUSTRATION AND NOT LIMITATION, LOSTPROFITS, LOST BUSINESS OR LOST OPPORTUNITY, OR ANY SPECIAL, INCIDENTAL ORCONSEQUENTIAL DAMAGES ARISING OUT OF SUCH USE OR INABILITY TO USE THE SOFTWARE,EVEN FVC OR AN AUTHORIZED FVC DEALER, DISTRIBUTOR OR SUPPLIER HAS BEEN ADVISEDOF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY; AND,(III) FVC’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT, UNDER ANY THEORY OFLIABILITY, SHALL NOT EXCEED THE AMOUNT YOU PAID FOR THE SOFTWARE ANDDOCUMENTATION.

 

Some jurisdictions do not allow the exclusion or limitations of incidentalor consequential damages so the above limitation or exclusion may not apply toyou.

 

**GENERAL.**

 

This Agreement represents the complete and final agreement concerningthe license granted hereunder and replaces any and all prior or contemporaneousunderstandings or agreements, written or oral, regarding the subject matter.This Agreement  may be amended only by awriting executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACEDBY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTHHEREIN, AND NOT THOSE IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable, suchprovision shall be reformed only to the extent necessary to make itenforceable, and the remainder of this Agreement shall nonetheless remain infull force and effect.  This Agreementshall be construed, governed, and enforced solely and exclusively by the law ofthe State of California, USA, excluding conflict of law provisions.  The application of the United NationsConvention on Contracts for the International Sale of Goods is expresslyexcluded. You hereby agree that the courts located in the State of California,USA, will constitute the sole and exclusive forum for the resolution of any andall disputes arising out of or in connection with this Agreement and you herebyirrevocably consent to the personal jurisdiction and venue of such courts andirrevocably waive any objections thereto. You may not assign this Agreement to any third party without firstobtaining the express written consent of FVC and any assignment by you withoutsuch consent shall be null and void. FVC may freely assign this Agreement toany third party.

 
| VI - Effective July 2001 | PARTNER AGREEMENT |   |
|--------------------------|-------------------|--------|

 

 

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**EXPORTCONTROLS**.

 

The Software and related technology may not be downloaded or otherwiseexported or re-exported (i) into (or to a national or resident of) Cuba, Iraq,Libya, North Korea, Iran, Sudan, or any other country to which the U.S. hasembargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list ofSpecially Designated Nationals or the U.S. Commerce Department’s Table ofDenial Orders.  By installing or usingthe Software, you are agreeing to the foregoing and you are representing andwarranting that you are not located in, under the control of, or a national orresident of any such country or on any such list.  In addition, you agree to comply with any other applicable U.S.export control laws and any local laws in your jurisdiction that may impact yourright to import, export, or use the Software. By installing or using the Software, you are also representing andwarranting that you will not use, or permit or authorize others to use, theSoftware in connection with the design, development, production, stockpiling oruse of any chemical or biological weapons. You agree to defend, indemnify and hold FVC harmless from any claimsarising out of or relating to your violation of any such export control laws.

 

# U.S.GOVERNMENT RESTRICTED RIGHTS LEGEND

The Software is a “commercial item” as that term is defined at 48C.F.R. 2.101, consisting of “commercial computer software” and “commercialcomputer software documentation” as such terms are used in 48 C.F.R.12.212.  Consistent with 48 C.F.R.12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government endusers acquire the Software with only those rights set forth therein

 

**[I AGREE]                             [IDO NOT AGREE]**

 
| VI - Effective July 2001 | PARTNER AGREEMENT |   |
|--------------------------|-------------------|--------|

 

 

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**EXHIBIT D**

 

**PRODUCTWARRANTY**

 

## FVCwarrants that FVC hardware Products conform to the published productspecifications and shall be free from material defects in design, material andworkmanship for a period of one (1) year from date of shipment to End-userCustomer. FVC agrees to provide the warranty obligations with respect to thesoftware Products set forth in and in accordance with FVC’s current End-UserLicense Agreement In the event that any Product is found to be defective, FVCshall, at its sole discretion, either replace or repair the defective Productat its cost. No FVC Reseller shall make additional warranties on behalf ofFVC.  FVC reserves the right to changeits warranty policies at any time.

 

## Underno circumstances shall the warranties set forth above apply to any Productwhich has been sold outside the terms of the Reseller’s agreement, customizedor modified without FVC’s consent, damaged or misused. Notwithstanding anylimitations set forth in this Agreement, FVC shall not be held responsible forany incidental, consequential or special damage which may result from a defectivepart except for the repair or replacement of such part.

 

## Resellerwill pass through to End-User Customers the warranties made by FVC under thisSection BUT will expressly indicate to End-User Customers that they must looksolely to Reseller in connection with any problems, warranty claims, or othermatters concerning the Product.

 

THE PROVISIONS OF THE FOREGOING WARRANTIES ARE INLIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL(INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE). IN NO EVENT SHALL FVC BE LIABLE TO RESELLER, END USER CUSTOMER, ORANY OTHER PERSON OR ENTITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES(INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USEDAMAGES) ARISING OUT OF THE MANUFACTURE, SALE OR SUPPLY OF THE PRODUCTS, EVENIF FVC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES

 
| VI - Effective July 2001 | PARTNER AGREEMENT |   |
|--------------------------|-------------------|--------|

 

 

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**EXHIBIT E**

 

**REQUIRED SUBLICENSE AGREEMENT PROVISIONS**

 

End-User Customer Sublicense Agreements:  Each Sublicense Agreement shall at a minimuminclude the provisions set forth below and shall include no term whichderogates from or is inconsistent therewith. FVC will be referred to as Partner’s supplier in the Sublicense Agreements.

 

1.       The Software is onlylicensed to End-User Customer for End-User Customer’s internal,non-transferable and non-exclusive use (without the right to sublicense) at thefacilities of End-User Customer in the Territory and only on those computersowned or leased and used, by End-User Customer;

 

2.       No right, title or interestto the Software, or any Intellectual Property Rights therein or the media onwhich it is provided, is transferred to End-User Customer;

 

3.       End-User Customer shall notcopy the Software except for up to two (2) copies for back-up or archivalpurposes and only as necessary to use the Software on the designated computerand all such backup copies shall contain all copyright and other proprietarynotices or legends of FVC that are on the Software as delivered to the End-UserCustomer.  No copies of the applicableDocumentation may be made by the End-User Customer;

 

4.       End-User Customer agreesnot to modify, translate, generate derivative works from, or reverse assemble,decompile, or otherwise attempt to derive source code of the Software;

 

5.       The Software is subject toFVC’s copyright.  FVC owns allIntellectual Property Rights in and to the Software.  Software programs, although copyrighted, are unpublished and containproprietary and confidential information of FVC and are considered by FVC to betrade secrets, and the End-User Customer agrees to hold the Software inconfidence.  End-User Customer agrees totake all reasonable precautions to safeguard the confidentiality of such Software.  The End-User Customer further agrees not touse the Software, except for its own internal business needs.  End-User Customer shall not use the Softwareto develop any software or product which competes with the Software;

 

6.       The End-User Customer’srights with respect to the Software programs may be terminated should theEnd-User Customer breach any term of the Sublicense Agreement and fail to curesuch breach within thirty (30) days after written notice;

 

7.       Upon any termination orexpiration of the Reseller Agreement between FVC and Partner, the SublicenseAgreement shall automatically be assigned to FVC or its designee for theremaining duration of the Sublicense Agreement.  Upon the termination of the Sublicense Agreement, the End-UserCustomer shall return all Software and Documentation to Partner; and

 

8.       FVC IS AN EXPRESSLYINTENDED THIRD PARTY BENEFICIARY OF THE SUBLICENSE AGREEMENT AND SHALL HAVE THERIGHT TO ENFORCE IT DIRECTLY AGAINST THE END-USER CUSTOMER.

 
| VI - Effective July 2001 | PARTNER AGREEMENT |   |
|--------------------------|-------------------|--------|

 

 

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