In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.

EXHIBIT 10.14

                          SOFTWARE HOSTING AGREEMENT                                          This Software Hosting Agreement (the Agreement) is entered into and effective as of the later of the two signature dates below (the Effective Date) INKTOMI CORPORATION (Inktomi), a California corporation, 1900 South Norfolk Street, Suite 110, San Mateo, California 94403, and MICROSOFT CORPORATION (Microsoft), a Washington Corporation, One Microsoft Way, Redmond, Washington 98052-6399, with reference to the facts set forth in the Recitals below.

                                   Recitals

     A.   Inktomi develops and markets computer software products, including without limitation a search engine software for searching and indexing information accessible through the Internet.

     B.   Microsoft develops, manufactures, distributes and markets computer software products and services.

     C.   Pursuant to that certain Software Development Agreement between the parties executed as of the Effective Date (the Software Development Agreement), Inktomi is customizing its Internet search engine software for Microsoft.

     D.   Microsoft desires that Inktomi host and maintain the customized search engine on servers owned by Inktomi and located at a facility selected by Inktomi in California, and Inktomi desires to provide such hosting and maintenance services, on the terms and conditions contained herein.

                                   Agreement

Accordingly, Inktomi and Microsoft hereby agree as follows:

     1.   Definitions.           -----------

          1.1  Ancillary Agreements shall mean the following agreements between Inktomi and Microsoft, and all amended versions thereof or successor agreements thereto: (i) the Software Development Agreement of even date herewith; (ii) the Information Services Agreement of even date herewith; (iii) the Loan Agreement of even date herewith, and any and all Promissory Notes and/or New Note executed pursuant thereto; (iv) the Security Agreement of even date herewith; and (v) the Escrow Agreement of even date herewith.

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

            1.2  Deployment, Hosting and Maintenance Specifications shall mean the specifications for the Services attached to this Agreement as Exhibit A, as it may be amended from time to time by mutual agreement of the parties, which agreement shall not be unreasonably withheld by either party; if and when the Deployment, Hosting and Maintenance Specifications are modified in accordance with Section 2.2 below, the parties shall initial the new Deployment, Hosting and Maintenance Specifications or amendments to the existing Deployment, Hosting and Maintenance Specifications, and immediately following the last initialing such new Deployment, Hosting and Maintenance Specifications or amendments shall automatically be deemed to supercede or supplement (as the case may be) Exhibit A.

          1.3  Hosting Servers shall mean those servers (including both the search engine cluster and the crawling cluster) and other hardware and third party software identified in the Deployment, Hosting and Maintenance Specifications that shall be used to host or service the Microsoft Search Engine and Usage Data.

          1.4  Internet means any systems for distributing digital electronic content and information to end users via transmission, broadcast, public display, or other forms of delivery, whether direct or indirect, whether over telephone lines, cable television systems, optical fiber connections, cellular telephones, satellites, wireless broadcast, or other mode of transmission now known or subsequently developed.

          1.5  Launch Date will mean that date on which the Microsoft Search Engine (other than any so-called beta version) is first generally available for use by the public.

          1.6  Microsoft Search Engine will mean those versions of the Product developed to Microsoft specifications pursuant to said Software Development Agreement and used to generate search results for Microsoft (or for third parties requesting searches through Microsoft) under said Information Services Agreement.

          1.7  Microsoft Site means the Microsoft Web Site(s) or Microsoft application(s) which, when accessed by an end user, will permit the end user to conduct a search of the Internet (or a portion thereof) using the Product; if





Microsoft sublicenses its rights to use the search results generated by the Product hereunder (as permitted under the Information Services Agreement), then the site(s) of such Microsoft sublicensee(s) will be deemed to be Microsoft Site(s).

          1.8  Product shall mean that certain customized search engine software developed by Inktomi for Microsoft pursuant to the Software Development Agreement, as more specifically described in said Software Development Agreement.

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            1.9  Security Measures shall mean those procedures and precautions described in Exhibit A, for maintaining the security of the Product and Usage Data required under this Agreement.

          1.10 Services shall mean the deployment, hosting and maintenance of the Product as described under this Agreement.

          1.11 Term means the period of time commencing on the Effective Date and continuing thereafter indefinitely until this Agreement is terminated pursuant to Section 10 below.

          1.12 Usage Data means such data as Inktomi may collect relating to the usage of (i) the Product by Microsoft and end users, and/or (ii) the Hosting Servers.

          1.13 Web means the so-called World Wide Web, containing, inter alia, Web Pages written in hypertext markup language (HTML) and/or any similar successor technology.

          1.14 Web Indexing Data means such data as Inktomi may collect relating to the documents crawled by its crawling software in connection with its operation of the Product.

          1.15 Web Page means a document on the Web which may be viewed in its entirety without leaving the applicable distinct URL address.

          1.16 Web Site means a collection of inter-related Web Pages.

     2.   Services.           --------

          2.1  Inktomi shall deploy, host and maintain the Product and Hosting Servers in accordance with the Deployment, Hosting and Maintenance Specifications and the other terms and conditions contained in this Agreement. Inktomi agrees that the Services shall be performed in a professional manner and shall be of a high grade, nature, and quality.

          2.2  The parties contemplate that there may be additions, deletions or other changes which may affect the Deployment, Hosting and Maintenance Specifications from time to time during the Term. Subject to Sections 2.2.1 through 2.2.3 below, any such additions, deletions or other changes to the Deployment, Hosting and Maintenance Specifications shall be mutually agreed to by Inktomi and Microsoft. Upon such mutual agreement (or, if mutual agreement is not required, upon notice of any such changes desired by Microsoft), Inktomi shall alter the Services in order to accommodate the revised Deployment, Hosting and Maintenance Specifications.

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                 2.2.1  Inktomi and Microsoft will confer not less frequently than monthly regarding the appropriate size (including hardware requirements) and capacity of the Hosting Server cluster, and Inktomi will supply all available and relevant usage data it may have; Microsoft will specify its capacity desires, and, notwithstanding anything contained herein to the contrary, any and all changes in capacity (including without limitation, number of Hosting Servers and connectivity capacity) requested by Microsoft shall be deemed acceptable to Inktomi, and Inktomi shall conform to such new capacity requirements in accordance with the timetable specified by Microsoft.

               2.2.2  Inktomi will deploy the capacity requested by Microsoft hereunder within the timeframe specified in the Deployment, Hosting and Maintenance Specifications, or as otherwise may be agreed by Microsoft and Inktomi at such time.

               2.2.3  At each monthly conference referred to above in Section 2.2.1, Inktomi will state its good faith estimate of the hardware and capacity needs for itself and its other customers. At its sole cost and expense, Inktomi promptly will provision for such hardware and capacity needs, and supply Microsoft with a list of the hardware provisioned and an officer's certification that Inktomi has made such provisions. Upon Microsoft's request (but not more often than twice in any calendar year), Inktomi will supply Microsoft with documentation evidencing such provisioning.

          2.3  In accordance with its performance of the Services, Inktomi may collect and/or possess Web Indexing Data and Usage Data.

               2.3.1  As between Inktomi and Microsoft, Inktomi will own all rights in and to Web Indexing Data. However, Inktomi will provide Microsoft with access to the Web Indexing Data solely for purposes of managing, marketing and promoting the Microsoft Search Engine.

               2.3.2  All Usage Data shall be owned jointly by Microsoft and





Inktomi, and Inktomi hereby irrevocably assigns to Microsoft an [*] interest therein. However, Inktomi shall not have the right to share any of such Usage Data with third parties (except that Inktomi may include Usage Data as part of gross undifferentiated data which it shares with other search engine customers but does not indicate as Usage Data related to the Microsoft Search Engine).

          2.4  Inktomi shall provide to Microsoft all reports described in the Deployment, Hosting and Maintenance Specifications, in accordance with the terms therein.

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[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

            2.5  Inktomi shall strictly adhere to all Security Measures in performing the Services, including without limitation securing the Usage Data, which it may possess or have under its control from time to time, from unauthorized access and modification.

          2.6  Microsoft will have the right, in its sole and absolute discretion, to require Inktomi to devote a separate cluster of Hosting Servers to servicing Microsoft hereunder, which Servers would not be used to service any needs of Inktomi and/or any third parties. The Hosting Servers purchased by Inktomi at Microsoft's request hereunder would be re-deployed to such separate cluster.

               2.6.1  If Microsoft notifies Inktomi in writing that it desires such a separate cluster, Microsoft shall reimburse Inktomi for all actual, direct expenses incurred and paid by Inktomi for equipment (other than Hosting Servers, which shall be purchased by Inktomi with financing loaned by Microsoft as set forth elsewhere herein) and services of necessary subcontractors (but not services of Inktomi employees) required to create and set up such separate cluster, but Microsoft's obligations to make any payments to Inktomi pursuant to clause (a) of Section 4.1 below will cease and terminate effective on the date such separate cluster becomes operational.

               2.6.2  Nothing contained in this Agreement will be deemed to require Microsoft to deploy the Product in Hosting Servers owned by Inktomi, or to require Microsoft to continue to utilize Inktomi's services to host the Product at any time during the Term; without limitation, Microsoft will have the right to deploy the Product, in whole or in part, at other site(s) (whether owned by Microsoft or third parties) during the Term. If Microsoft elects to deploy and operate the Product at other sites, Inktomi will take all steps necessary or appropriate to facilitate such other deployment and operation; without limitation, Inktomi will move any and all Hosting Servers to any location(s) designated by Microsoft (costs of relocation, including shipping and insurance, to be borne exclusively by Microsoft), and Inktomi will provide training to Microsoft personnel and/or others designated by Microsoft to enable them to satisfactorily operate and maintain the Product and Hosting Servers wherever located. Notwithstanding anything to the contrary contained in this Agreement, Microsoft will not be obligated to make any payments to Inktomi pursuant to clauses (a), (e) and/or (f) of Section 4.1 below if Microsoft exercises its rights to move the Hosting Servers under this Section 2.6.2.

          2.7  Inktomi will assign two (2) full-time Inktomi employees exclusively dedicated to maintenance duties hereunder. Such employees are identified in Exhibit D attached hereto; and their replacements shall be subject to Microsoft's prior written approval (which approval Microsoft will not unreasonably withhold). Notwithstanding the foregoing, if Microsoft and Inktomi mutually agree in writing, additional Inktomi employees may be required to be assigned to maintenance duties hereunder.

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            2.8  Microsoft acknowledges that Inktomi has customized and provided, and will continue to customize and provide, its software and technology to other parties for use in connection with a variety of applications, including search engine applications. Except as may be expressly provided to the contrary elsewhere in this Agreement, nothing in this Agreement will be deemed to (i) limit or restrict Inktomi from customizing and providing its software and technology to other parties for any purpose, including in connection with search engine applications, or (ii) in any way affect the rights granted to such other parties. Microsoft further acknowledges that in addition to utilizing the Hosting Servers to host the Product, Inktomi may also use the Hosting Servers to service its own needs and the needs of other third parties, unless Microsoft elects to use a separate cluster in accordance with Section 2.6 above (it being understood that Inktomi will estimate the capacity for servicing the needs of itself and its other customers in good faith and provision accordingly, in accordance with Section 2.2).

     3.   Hosting Servers.           ---------------

          3.1  Inktomi shall own all new Hosting Servers purchased by Inktomi pursuant to Microsoft's request hereunder.

               3.1.1  To the extent Inktomi is required to do so in order to meet Microsoft's capacity requests under the Deployment, Hosting and Maintenance Specifications (as the same may change from time to time), Inktomi shall purchase new Hosting Servers. Prior to purchasing any such new Hosting Servers, Inktomi will seek bids from third parties, copies of which Inktomi will provide





to Microsoft, and Microsoft will have the right to approve all such purchases and the applicable purchase prices. Inktomi shall use commercially reasonable efforts to minimize the purchase prices of such new Hosting Servers, but in any event such purchase prices will not be more than any comparable equipment purchased by Inktomi during the same time frame. Inktomi will consult with Microsoft regarding the proposed purchase prices of all new Hosting Servers prior to purchasing the same, and if Microsoft is aware of a vendor who is willing to sell Hosting Servers to Inktomi at a lower purchase price than as proposed by Inktomi, Inktomi agrees to purchase the applicable new Hosting Servers from such vendor.

               3.1.2  Notwithstanding Section 3.1.1 above, Inktomi shall have no obligation whatsoever to purchase any new Hosting Servers unless Microsoft loans Inktomi an amount equal to the purchase price thereof pursuant to the Loan Agreement between Inktomi and Microsoft of even date herewith (the Loan Agreement).

          3.2  Microsoft acknowledges that, pursuant to Inktomi's contractual arrangement with its subcontractor, Exodus Communications, Inc. (Exodus), Inktomi will locate the Hosting Servers at the facilities of Exodus, and Exodus will provide power and Internet telecommunications services to the Hosting Servers. However, Microsoft will have no obligations or liabilities to Exodus, Inktomi will remain liable for providing all

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  Services to Microsoft notwithstanding its arrangement with Exodus, and Inktomi will [*] and [*] against from any and all [*] to [*] (in accordance with the procedures specified in Section [*] below). A copy of the contract(s) between Inktomi and Exodus is/are attached hereto as Exhibit [*], and Inktomi shall not modify said contract(s) or replace Exodus as its subcontractor for the applicable services (including without limitation by having Inktomi perform the Services directly) without Microsoft's prior written approval (which approval Microsoft agrees to not unreasonably withhold). Inktomi shall provide Exodus with a copy of the Security Measures applicable under this Agreement and will use commercially reasonable efforts to ensure that Exodus strictly adheres to all such Security Measures.

          3.3  Subject to Microsoft's rights under Section 2.6.2 above and/or the Security Agreement between Inktomi and Microsoft of even date herewith, executed in accordance with the Loan Agreement, Microsoft shall not have any access to the Hosting Servers, except as follows: (i) Microsoft will have electronic read-only access to real time system data on the status of the usage, accessibility and performance of the Microsoft Search Engine (via software developed by Inktomi in consultation with Microsoft), and (ii) Microsoft will have the right, upon reasonable notice and during normal business hours, to have representatives escorted by Inktomi employees tour the premises where the Hosting Servers are located as necessary to ensure Microsoft's satisfaction with the operation of the physical plant and equipment. Microsoft agrees to comply with the Security Measures at all times when accessing the Hosting Servers as permitted hereunder.

     4.   Payment For Services.           --------------------

          4.1  As full and complete compensation for the Services, Microsoft shall pay to Inktomi the following monthly fees:

               (a)  beginning with the Launch Date, the sum of [*] [*] Dollars ($[*]) (attributable to the use during the Term of the Hosting Servers owned by Inktomi as of the Effective Date), provided that in no event will Microsoft be obligated to make more than [*] ([*]) monthly payments pursuant to this clause (a), and if the Term extends beyond [*] years after the Launch Date, this clause (a) will be deemed deleted from this Agreement effective on the [*] anniversary of the Launch Date notwithstanding anything to the contrary contained herein;

               (b)  an amount equal to [*] ([*]) of the [*], [*], [*], [*] thereon, incurred by Inktomi to purchase each new Hosting Server required to service Microsoft's needs in accordance with Section 3.1 above (attributable to the use during the Term of such new Hosting Servers); such payments will commence with respect to each new Hosting Server at such time as Inktomi's repayment obligations begin with respect to such new Hosting

                                       7

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

  Server pursuant to the Loan Agreement and the applicable Promissory Note. Notwithstanding section 4.2 below, such payments shall be due in immediately available funds on the first business day of each month. The parties acknowledge that the monthly fee under this clause (b) will increase throughout the Term if and to the extent that Microsoft's Hosting Server requirements increase, but, notwithstanding anything contained herein to the contrary, no amounts shall be payable under this clause (b) attributable to any Hosting Server which is more than [*] years old;

               (c)  an amount equal to the [*] and [*] of the new Hosting Servers purchased by Inktomi pursuant to Section 3.1 above ([*] any amounts paid by Inktomi to Exodus for such services or attributable to the employees referred to in clause (f) below), payable if and when Inktomi pays such maintenance





costs; Inktomi will use its commercially reasonable efforts to ensure that the annual hardware and software maintenance costs for each such new Hosting Server are not more than [*] percent ([*]%) of the purchase price of such New Hosting Server, and Microsoft will not be obligated to pay higher maintenance costs than such [*]% annual estimate without its prior written consent;

               (d)  an amount equal to [*] Percent ([*]%) of the sum of the amounts payable under clauses (b) and (c) above (attributable as Inktomi's management fee for providing the Services);

               (e)  an amount equal to Microsoft's [*] of the [*] [*] by Inktomi to Exodus in connection with the applicable Hosting Servers cluster, computed in accordance with Exhibit [*], [*] the [*] new Hosting Servers are [*] at Exodus; and

               (f)  an amount equal to [*] per month per person identified in Section 2.7 above, [*] of the new Hosting Servers.

In addition, if the number of ADH (as defined in the Software Development Agreement and Information Services Agreement) should exceed the capacity requested by Microsoft, or if Inktomi's usage of its estimated capacity requirements should exceed its estimates as communicated to Microsoft in accordance with Section 2.2.1 above, then Microsoft's applicable payment(s) hereunder will be [*] in [*] with the [*] set forth in Exhibit [*] hereto.

          4.2  Except as set forth in Section 4.1(b) above, Inktomi shall supply to Microsoft written invoices for all amounts due under this Agreement, and payments will be due net [*] ([*]) days from Microsoft's receipt of such invoice. Inktomi shall bear sole responsibility for all expenses incurred in connection with the performance of the Services, unless otherwise set forth herein or agreed to in writing by Microsoft.

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[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

            4.3  Inktomi shall keep true and accurate books and records, in accordance with Generally Accepted Accounting Principles (GAAP), relating to all costs and expenses for which Inktomi is entitled to charge Microsoft pursuant to Section 4.1 above, throughout the Term and for eighteen (18) additional months thereafter. Inktomi will permit Microsoft to have access to, and to make copies of, all such books and records for purposes of auditing and verifying such costs and expenses, provided that Microsoft shall give Inktomi reasonable notice prior to each requested audit and shall perform such audit during normal business hours at Inktomi's office(s) where such records are normally kept. If any Microsoft audit should determine that Inktomi overcharged Microsoft by an amount of [*]% or more for the period audited, then in addition to any and all other rights and remedies Microsoft may have under the circumstances, Microsoft may require Inktomi to reimburse it for all costs it incurred relating to such audit.

          4.4  Taxes.                -----

               4.4.1  All amounts to be paid by Microsoft to Inktomi herein are exclusive of any federal, state, local, municipal or other governmental taxes, including, without limitation, taxes based on, imposed on or measured by net or gross income or receipts, franchise taxes, taxes on doing business, capital stock taxes (including any minimum taxes and taxes measured by any item of tax preference), sales, use, excise, property, withholding or similar taxes, duties, levies, fees, excises or tariffs (all such taxes and other charges collectively Taxes) now or hereafter imposed on Inktomi under applicable law (the Inktomi Taxes). Microsoft is not liable to Inktomi for any Taxes incurred in connection with this Agreement, unless they are (i) owed by Microsoft under applicable law solely as a result of entering into this Agreement (ii) are based solely upon the amounts payable under this Agreement, and (iii) are required to be collected from Microsoft by Inktomi under applicable law, provided, however, that solely with respect to sales tax or use tax payable to those taxing jurisdictions that impose sales or use taxes under applicable law upon the vendor, rather than the purchaser, clause (i) above shall be modified to provide sales taxes or use taxes that are owed by Inktomi under applicable law solely as a result of entering into this Agreement and clause (iii) shall be modified to provide are permitted to be collected from Microsoft by Inktomi under applicable law. (Such Taxes as are described in clauses (i), (ii) and (iii) above, the Invoiced Taxes.) The Invoiced Taxes shall be stated separately as applicable on Inktomi's invoices and shall be remitted by Microsoft to Inktomi. Inktomi shall promptly provide to Microsoft official tax receipts indicating that such Invoiced Taxes have been collected by Inktomi. Microsoft may provide to Inktomi an exemption certificate acceptable to Inktomi and to the relevant taxing authority (including without limitation a resale certificate) in which case Inktomi shall not collect the Taxes covered by such certificate. Inktomi agrees to take such steps as are reasonably requested by Microsoft to minimize such Invoiced Taxes in accordance with all relevant laws and to reasonably cooperate with and assist Microsoft, at Microsoft's request, in challenging the validity of any Invoiced Taxes or other Taxes paid directly by Microsoft to the relevant taxing authority. Inktomi shall indemnify and hold Microsoft

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[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO





THE OMITTED PORTIONS.

  harmless from any Taxes, penalties, interest, or additions to tax arising from amounts paid by Microsoft to Inktomi under this Agreement that are asserted or assessed against Microsoft to the extent such amounts are related to Invoiced Taxes paid to Inktomi by Microsoft under this section. Other than the Invoiced Taxes, all Inktomi Taxes shall be the responsibility of Inktomi and may not be passed on to Microsoft. Inktomi takes full responsibility for all such Inktomi Taxes, including penalties, interest and other additions thereon and agrees to indemnify, defend and hold Microsoft harmless from any claims, causes of action, costs (including without limitation, reasonable attorneys' fees), penalties, interest charges and other liabilities of any nature whatsoever associated therewith. All Taxes that are imposed on Microsoft under applicable law (the Microsoft Taxes) shall be the responsibility of Microsoft and may not be passed on to Inktomi. Microsoft takes full responsibility for all such Microsoft Taxes, including penalties, interest and other additions thereon and agrees to indemnify, defend and hold Inktomi harmless from any claims, causes of action, costs (including without limitation, reasonable attorneys' fees), penalties, interest charges and other liabilities of any nature whatsoever associated therewith.

          4.4.2  In the event that Taxes are required to be withheld on payments made hereunder by any U.S. (state, local or federal) or foreign government, Microsoft may deduct such Taxes from the amount owed Inktomi and pay them to the appropriate taxing authority. Microsoft shall in turn promptly secure and deliver to Inktomi an official receipt for any Taxes withheld. Inktomi may provide to Microsoft an exemption certificate acceptable to Microsoft and to the relevant taxing authority (including without limitation a resale certificate) in which case Microsoft shall not collect the Taxes covered by such certificate. Microsoft agrees to take such steps as are reasonably requested by Inktomi to minimize such Taxes in accordance with all relevant laws and to reasonably cooperate with and assist Inktomi, at Inktomi's request, in challenging the validity of any such Taxes.

          4.4.3  Inktomi agrees and acknowledges that it will be responsible for all of its federal and state taxes, withholding, social security, unemployment and other related taxes, insurance, and other benefits, and all salaries, benefits, and other costs of its employees.

     5.   Ownership of the Product. The parties respective rights in and to the           ------------------------                                               Product will be as set forth in the Software Development Agreement and the Information Services Agreement of even date herewith, and nothing contained in this Agreement shall be deemed to modify such rights allocation.

  6.      Confidentiality.           ---------------

     6.1  The parties hereby agree that all terms and conditions of that certain Microsoft Corporation Non-Disclosure Agreement between them dated March 18, 1997, shall govern the disclosure of confidential and proprietary information made under this

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  Agreement. In this connection, the parties hereby agree that the terms of this Agreement shall be treated as confidential in accordance with the terms of said Non-Disclosure Agreement.

          6.2  Without having first sought and obtained Microsoft's written approval (which Microsoft may withhold in its sole and absolute discretion), Inktomi shall not, directly or indirectly, (i) trade upon this transaction or any aspect of Inktomi's relationship with Microsoft, or (ii) otherwise deprecate Microsoft technology.

          6.3  Inktomi shall use its reasonable commercial efforts to cause Exodus to execute a non-disclosure agreement with Microsoft which includes substantially similar restrictions as are contained herein.

          6.4  Neither party will issue any press release or make any public announcement(s) relating in any way whatsoever to this Agreement or the relationship established by this Agreement without the express prior written consent of the other party. However, the parties acknowledge that this Agreement, or portions thereof, may be required under applicable law to be disclosed, as part of or an exhibit to a party's required public disclosure documents. If either party is advised by its legal counsel that such disclosure is required, it will notify the other in writing and the parties will jointly seek confidential treatment of this Agreement to the maximum extent reasonably possible, in documents approved by both parties and filed with the applicable governmental or regulatory authorities. Notwithstanding the foregoing, Microsoft and Inktomi will cooperate to create a mutually approved joint press release regarding the non-confidential aspects of this Agreement, which press release shall be issued by each party on the Launch Date; provided, however, that the precise timing of such press release shall be subject to the approval of Microsoft (in its sole and absolute discretion).

     7.   Representations and Warranties.           ------------------------------

          7.1  Microsoft warrants and represents that it has the full power to enter into this Agreement and perform its obligations hereunder.

          7.2  Inktomi warrants and represents that:





               7.2.1  It has the full power to enter into this Agreement and perform its obligations hereunder, and Inktomi's performance of such obligations will not violate any terms and conditions of other agreements entered into by Inktomi with [*] ([*]);

               7.2.2  Inktomi's [*] and [*] of the Product shall [*] to the [*] and [*],                                        11

[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

  provided, however, that a [*] and [*] to so [*] will not be [*] to be a [*] hereunder; and

               7.2.3  Notwithstanding any [*] to [*] hereunder, or to any other [*], Inktomi shall remain [*] for the [*] hereunder in accordance with [*].

     8.   Indemnification.           ---------------

          8.1  Each party shall, at the expense of such party (the Indemnifying Party) and at the request of the other party (the Indemnified Party), defend [*] party claim or action brought against the Indemnified Party, and/or the [*] and [*] which, [*], (i) would constitute a [*] of [*], [*] or [*] made by the Indemnifying Party under this Agreement; or (ii) would [*] of the Indemnifying Party's [*]; and the Indemnifying Party will [*] and [*] the Indemnified Party [*] and [*], [*] and [*] incurred by the Indemnified Party, including but [*] to [*] of [*] and [*], that are attributable to such claim. The Indemnified Party shall: (x) provide the Indemnifying Party reasonably prompt notice in writing of any such claim or action and [*] the Indemnifying Party, through counsel [*] to Microsoft and Inktomi, to [*] and [*] such claim or action; and (y) provide the Indemnifying Party [*], [*] and [*] at the [*] Party's [*], to [*] the Indemnifying Party to [*] such claim or action. The Indemnifying Party will [*] for [*] made by the [*] Party without the [*] Party's [*], which [*] will [*].

          8.2  The Indemnified Party shall have the right to employ separate counsel and participate in the defense of any claim or action. The Indemnifying Party shall reimburse the Indemnified Party upon demand for any payments made or loss suffered by it at any time after the date hereof, based upon the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands, or actions, in respect to any damages related to any claim or action under this Section 8.

          8.3  The Indemnifying Party may [*] any claim or action under this Section 8 on the Indemnified Party's behalf [*] the [*], which [*] will [*]. In the event Microsoft and Inktomi agree to settle a claim or action, the each party agrees not to publicize the settlement without first obtaining the other party's written permission, which permission will not be unreasonably withheld.

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[*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY  WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO  THE OMITTED PORTIONS.

            9.   LIMITATION OF LIABILITY. EXCEPT FOR [*] CAUSED BY A [*] OF                ----------------------- SECTION [*], NEITHER PARTY SHALL BE [*] (IN [*] WITH OR PURSUANT TO THIS AGREEMENT AND THE ANCILLARY AGREEMENTS TAKEN AS A WHOLE) FOR ANY [*], [*] OR [*] [*] (INCLUDING [*]) [*] OF [*] ([*]) [*] OF THE [*] OF [*], EVEN IF [*] HAD BEEN [*] OF THE [*] OF SUCH [*].        10.  Termination and Other Remedies.           ------------------------------

          10.1 Inktomi may terminate this Agreement without cause upon one year's prior written notice, provided that such notice may not be given prior to the second anniversary of the Launch Date.

          10.2 Microsoft may terminate this Agreement at any time without cause upon [*] ([*]) days prior written notice. Upon receipt of such notice, Inktomi will discontinue all work hereunder. If Microsoft terminates this Agreement without cause pursuant to this Section 10.2, then Microsoft will pay for all services provided by Inktomi up until the date of termination under this Section 10.2. Notwithstanding anything contained herein to the contrary, should Microsoft exercise its termination right pursuant to this Section 10.2, then Inktomi will have the right to elect, in writing within fifteen (15) days after receipt of Microsoft's notice of termination hereunder, either one of the following two options for a early termination penalty:

                (a)   Inktomi may require Microsoft to pay to Inktomi, in  [*] immediately following the effective termination date, an amount equal to [*] ([*]) of all outstanding principal, interest and other amounts owed or owing to Microsoft by Inktomi on the date of termination under the Loan Agreement (and outstanding Promissory Notes issued thereunder); or

               (b)    Inktomi may deliver that portion of the Collateral (as defined in the Loan Agreement) which was purchased with Advances evidenced by the then-outstanding Promissory Notes (as defined in the Loan Agreement) (the Returned Collateral) to Microsoft, and assign all right, title and interest in





and to said Returned Collateral to Microsoft, and promptly upon such delivery and assignment Inktomi may require Microsoft to pay to Inktomi, in [*]  immediately following the effective date of termination, an amount equal to [*] ([*]) of all outstanding principal, interest and other amounts owed or owing to Microsoft by Inktomi on the date of termination under the Loan Agreement (and outstanding Promissory Notes issued thereunder); provided, however, that the following conditions must be satisfied for Inktomi to be entitled to elect this alternative (b)-

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            (i)    Inktomi then owns all of the Returned Collateral and has [*]      the Returned Collateral [*], and [*] other than Lender;

          (ii)   Inktomi obtains any [*] reasonably required by Microsoft from      Inktomi's [*];

          (iii)  the Returned Collateral is returned in good condition and      repair, without any waste or unusual or unreasonable depreciation of      Returned Collateral;

          (iv)   Inktomi has not committed any act for which any portion of the      Returned Collateral might be confiscated by any governmental or private      entity;

          (v)    Inktomi has paid all taxes, assessments or similar obligations      affecting the Returned Collateral that are then due or have then accrued;

          (vi)   Inktomi [*] to Microsoft [*] that [*] of the [*] is [*] and      [*]; and

          (vii)  Inktomi, [*], arranges to deliver the Returned Collateral in a      manner and to a location designated by Microsoft.

In the event Inktomi elects this alternative (b), the Security Agreement executed in connection with the Loan Agreement shall terminate on the business day immediately following the date of delivery and assignment of all the Returned Collateral to Microsoft.

          10.3   Subject to Section 12.9 below, in the event the Microsoft Search Engine is inaccessible to Microsoft, due to a problem other than one with Microsoft's servers or the telecommunication line from Microsoft to the Hosting Servers, for twenty-four (24) consecutive hours, or for forty-eight (48) hours or more in any seventy-two (72) hour period, or for seventy-two (72) hours or more in any one week period, and such inaccessibility is due to any reason other than Microsoft's breach of its obligations under this Agreement, then Microsoft may suspend performance and/or terminate this Agreement immediately with no further obligation.

          10.4   Microsoft may suspend performance and/or terminate this Agreement immediately upon written notice at any time if:

                 (a)  Inktomi is in [*] of this Agreement (excluding Section [*]) and fails to cure that breach within [*] ([*]) days after written notice thereof; or

                 (b)  Inktomi is in material breach of Section [*]; or

                                       14

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                   (c)  Inktomi becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency; or suffers or permits the commencement of any form of insolvency or receivership proceeding; or has any petition under any bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing; or has a trustee or receiver appointed for its business or assets or any part thereof.

          10.5   Inktomi may suspend performance and/or terminate this Agreement immediately upon written notice at any time if:

                 (a)  Microsoft is in [*] of this Agreement (excluding Section [*]) and fails to cure that breach within [*] ([*]) days after written notice thereof; or

                 (b)  Microsoft is in material breach of Section [*]; or

                 (c)  Microsoft becomes insolvent or makes any assignment for the benefit of creditors or similar transfer evidencing insolvency; or suffers or permits the commencement of any form of insolvency or receivership proceeding; or has any petition under any bankruptcy law filed against it, which petition is not dismissed within sixty (60) days of such filing; or has a





trustee or receiver appointed for its business or assets or any part thereof.

          10.6   If Inktomi is in material breach of this Agreement, then Microsoft will have the right to withhold payment of amounts otherwise owed by Microsoft to Inktomi pursuant to this and/or any Ancillary Agreement; provided, however, that Microsoft shall give Inktomi not less than [*] ([*]) days to cure such breach prior withholding any such payments.

          10.7   A breach of this Agreement by either party will also constitute a breach by such party of each and every Ancillary Agreement; and a breach by either party of any Ancillary Agreement will also consitute a breach of this Agreement by such party.

          10.8   In the event of termination or expiration of this Agreement for any reason, Sections 1, 2.3, 4.3, 4.4, 5, 6.1, 7, 8, 9 and 12 shall survive termination. Except as otherwise expressly provided in this Agreement, Inktomi shall turn over to Microsoft all work in progress, software, and any other materials provided by Microsoft to Inktomi under this Agreement promptly following termination or expiration. Neither party shall be liable to the other for damages of any sort resulting solely from such party terminating this Agreement in accordance with its terms.

                                       15

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            10.9   The rights and remedies given to the parties under this Section 10 are in addition to any other rights and/or remedies that the parties may have under the circumstances, all of which are expressly reserved.

     11.  International Deployment, Hosting & Maintenance Obligations of           -------------------------------------------------------------- Inktomi. Microsoft will have the right to require Inktomi to purchase new - ------- Hosting Servers, and/or to arrange for and perform such deployment, hosting and maintenance services, as Microsoft may determine in connection with international versions of the Product throughout the Term, on the same terms and conditions as applicable hereunder with respect to the original version of the Product directed toward the U.S. market, including without limitation requiring Inktomi to establish, deploy and maintain a cluster of Hosting Servers anywhere in the world (including [*]) designated by Microsoft. If and when Microsoft requires such undertakings by Inktomi, it will so notify Inktomi in writing, whereupon Inktomi will perform such undertakings as requested as expeditiously as reasonably possible.

     12.  Miscellany.           ----------

          12.1   Neither party shall represent itself as the agent or legal representative of the other for any purpose whatsoever, and neither party shall have the right to create or assume for the other any obligation of any kind. This Agreement shall not create or be deemed to create an agency, partnership, franchise, employment relationship or joint venture between the parties. Each party's employees who perform services related to this Agreement shall remain under the exclusive direction and control of their respective employer and shall receive such salaries, compensation and benefits as their respective employer may from time to time determine. Each party shall have full and sole responsibility for its employees who perform any service related to this Agreement with regard to compliance with all applicable laws, rules and regulations governing such party relating to employment, labor, wages, benefits, taxes and other matters affecting its employees.

          12.2   Any notice required or permitted to be given under this Agreement shall be made in writing and shall be deemed to have been given or made if it is in writing and is: (i) delivered in person, (ii) sent by same day or overnight courier, (iii) mailed by certified or registered mail, return receipt requested, postage prepaid, addressed to the party at its address set forth below or at such other address as such party may subsequently furnish to the other party by notice hereunder, or (iv) delivered by facsimile, the transmittal of which shall be confirmed by a telephone call to the other party and by dispatch of a confirming copy of the transmittal by registered or certified mail, postage prepaid. Notices will be deemed effective on the date of delivery in the case of personal delivery, or three (3) business days after mailing, or on the date of dispatch in the case of notification by facsimile (assuming confirmation of transmission). The parties' addresses for purposes of notice shall be as set forth above, provided that all notices to Inktomi shall be sent to the

                                       16

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  attention of General Counsel; and all notices to Microsoft shall be sent to the attention of Shirish Nadkarni, with a copy to: Law & Corporate Affairs, U.S. Legal.

          12.3   This Agreement shall be construed, enforced, performed and in all respects governed by and in accordance with the laws in the State of Washington. In any action or suit to enforce any right or remedy under this





Agreement the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs.

          12.4   In the event any provision of this Agreement is rendered null, void or otherwise ineffective, then (i) the parties agree to negotiate in good faith an acceptable alternative provision which reflects as closely as possible the intent of the unenforceable provision and (ii) notwithstanding, and regardless of whether the parties reach agreement after the good faith negotiations described in clause (i) immediately above, the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby and shall remain in full force and effect. Section and all other headings used herein are provided for convenience only and are not to be given any legal effect or considered in interpreting any provision of this Agreement. No provision of this Agreement shall be interpreted against any party because such party or its legal representative drafted such provision.

           12.5  Except as expressly permitted hereunder or in Exhibit F hereto, neither party may transfer, assign or sublicense this Agreement, or any rights or obligations hereunder, whether by contract or by operation of law, except with the express written consent of the other party, and any attempted transfer, assignment or sublicense by a party in violation of this Section shall be void. For purposes of this Agreement, an transfer under this Section shall be deemed to include, without limitation, the following: (a) a merger or any other combination of an entity with another party (other than a reincorporation of Inktomi from the State of California to the State of Delaware), whether or not the entity is the surviving entity; (b) any transaction or series of transactions whereby a third party acquires direct or indirect power to control the management and policies of an entity, whether through the acquisition of voting securities, by contract, or otherwise; (c) in the case of Inktomi, the sale or other transfer of Inktomi's search engine business or any other substantial portion of Inktomi's assets (whether in a single transaction or series of transactions), or (d) the transfer of any rights or obligations in the course of a liquidation or other similar reorganization of an entity (other than a reincorporation of Inktomi from the State of California to the State of Delaware). Neither party will unreasonably withhold or delay its consent to a requested transfer, assignment or sublicense. Subject to the provisions of this Section, this Agreement shall be binding upon and inure to the benefit of each party and their respective successors and assigns.

          12.6   All rights and obligations of the parties hereunder are personal to them. Except as otherwise specifically stated herein, this Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.

                                       17

            12.7   Each party shall be responsible for compliance with all applicable laws, rules and regulations, if any, related to the performance of its obligations under this Agreement.

          12.8   No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof or thereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

          12.9   Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder during any event of force majeure.

          12.10  The parties acknowledge that there may be instances during the Term when, notwithstanding the Non-Disclosure Agreement referred to in Section 6.1 above, Inktomi will not wish to disclose or have Microsoft become aware (through inspection or otherwise) of certain confidential and proprietary information of Inktomi relating to its business and/or technology. In those instances, the parties agree to work together in a spirit of cooperation to work around such disclosure so that Inktomi is able to perform the Services to Microsoft's reasonable satisfaction and otherwise discharge its obligations under this Agreement without making such disclosure.

          12.11  This Agreement, along with the Ancillary Agreements, together contain the entire agreement of the parties with respect to the premises, and may not be modified or amended except by a written instrument executed by the party sought to be charged or bound thereby.

     13.  Insurance. Inktomi will maintain insurance (including but not limited           --------- to liability and property insurance covering the Hosting Servers and Inktomi's operation thereof) in accordance with the requirements set forth in the Software Development Agreement and Loan Agreement between the parties of even date herewith. Executed as of the Effective Date on the signature dates below.

INKTOMI CORPORATION                         MICROSOFT CORPORATION       /s/ DAVID C. PETERSCHMIDT                   /s/ LAURA JENNINGS  By: _________________________               By: _________________________   David C. Peterschmidt, CEO                  Laura Jennings  ______________________________              ______________________________ (printed name and title)                      (printed name and title)





            July 24                                      7/27 Date: ____________________, 1997            Date: ____________________, 1997

                                       18

                                     EXHIBIT A

   DEPLOYMENT, HOSTING AND MAINTENANCE SPECIFICATIONS AND SECURITY MEASURES                                                                                                                                                           (32 pages follow)

                                     EXHIBIT A                                    ---------

YUKON REQUIREMENTS FOR THE INKTOMI SEARCH SERVICE MICROSOFT CONFIDENTIAL - --------------------------------------------------------------------------------

VERSION:            1.0 STABILITY:          High FILENAME:           Yukon requirements for Inktomi search service.doc DATE:               07/07/97 3:57 PM AUTHOR(S):          William Jones   wjones

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                                 Table of Contents

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  1.   OVERVIEW ================================================================================

The goal of this document is to provide a reasonably complete list of Yukon requirements for the Inktomi search service.  Note that a number of the requirements in this document are met by the existing search service but are included anyway for the sake of completeness.

The Section 2 lists all requirements according to area (Performance and Scalability, Reliability and Fault Tolerance, ...) together with information on Target Release and Due Date as defined below.  The Appendix (Section 7) follows a similar organization and provides more detail on the requirements..

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                                     EXHIBIT B

                    CONTRACT(S) BETWEEN INKTOMI AND EXODUS

                                     EXHIBIT C

                            PRO-RATION METHODOLOGY

ALLOCATION OF EXODUS OPERATING COSTS

Exodus charges a monthly fee for facility space, fire suppression, air     conditioning, security, electricity, support services and Internet    connectivity. Inktomi is obliged to contract for this capacity in advance.    The connectivity is currently itemized and charged at a current rate of    [*].

[*] will be according to the [*] provisioned.

Example: [*] - [*] per day, [*] per day [*]. [*] of Exodus charges, [*] of    Exodus charges [*].

[*] will be charged to [*] only for their share of [*]

Current estimate is that [*]; this would be [*].

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                                     EXHIBIT D

                         INKTOMI MAINTENANCE EMPLOYEES

                                  [*] and [*]

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                                     EXHIBIT E

                          OVER-UTILIZATION ADJUSTMENT

In the event that one party under-provisions its portion of the shared Inktomi hosting cluster such that its [*] are [*] by the [*], there will be a charge on a [*] levied against the under-provisioned party.

If [*] for a [*] exceeds its agreed capacity provisioning (as determined in accordance with Sections 2.2 and 2.8, then Microsoft's [*] will be [*] ([*] if the [*] is by [*], or [*] if such [*] is by [*]) in accordance with the following computation: [*] the [*] ([*]) times the [*] of the provisioned capacity ([*]). Note that the over-utilization could apply to [*] in any [*].

[*] will be calculated each month by taking the [*] of the Inktomi [*] without regard to [*] ([*]) [*] ([*]) [*] by the agreed total [*] provisioned.

[*] will be calculated for each party each month by [*] the number of [*] ([*] the [*] in the [*]) from the number of [*] for the [*].





Example:

     Assumptions:      1. Microsoft provisioned capacity is [*]      2. Inktomi provisioned capacity is [*]      3. [*] in [*] is $[*]      4. [*] is [*] for a [*]      5. [*] is [*] for that [*]

     [*] = $[*] = $[*]

     [*] = [*]  = [*]

     Over-Utilization Adjustment = [*] = $[*]              [*] in such [*] payable by [*]

Notwithstanding anything contained herein to the contrary, if a party shall have [*] its provisioned capacity by [*] in any month, such party shall be deemed [*] for its [*] during such month as soon as possible.

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                                     EXHIBIT F                                    ---------

                              Transfer by Inktomi                               -------------------

If Inktomi requests Microsoft's consent to a transfer as described in clause (a) of Section 12.5 of this Software Hosting Agreement to which this Exhibit F is  appended, and Microsoft reasonably withholds its consent to such transfer (an  Unconsented Transfer), then Inktomi will nevertheless have the right to  transfer this Agreement in connection with its proposed Unconsented Transfer  subject to the following conditions precedent to the Unconsented Transfer:

(i)   Inktomi, at its sole cost and expense, and without any financing supplied by Microsoft, will create a separate cluster of Hosting Servers for Microsoft required to service Microsoft's reasonably anticipated needs for a period of twelve months after the commencement of operation of such new and relocated cluster [provided however that Microsoft will purchase, or fund (in accordance with the Loan Agreement) Inktomi's of, (whichever Microsoft elects) any new hosting servers beyond the Hosting Servers purchased by Inktomi under said Software Hosting Agreement necessary to service Microsoft's reasonably anticipated needs as set forth above];

(ii)  Inktomi will relocate, at its sole cost and expense (including, without  limitation, indemnifying Microsoft and holding it harmless against any and all  Taxes that arise as a direct or indirect result of the relocation of the Hosting Servers), all Hosting Servers referred to in clause (i) to a location designated by Microsoft, in its sole discretion;

(iii) Inktomi, at its sole cost and expense, will provide training to Microsoft  personnel to the extent requested by Microsoft, to enable such personnel to use  and maintain the Microsoft Search Engine, and to create enhancements thereto,  with reasonable competence (all as determined by Microsoft in its sole discretion);

(iv)  Inktomi will grant to Microsoft an irrevocable, non-exclusive,  royalty-free license to use the Product (and all required underlying Inktomi  Technology) solely in connection with Microsoft's operation of the Microsoft  Search Engine (which license shall include the right to create enhancements and  other derivative works based thereon for use in conjunction therewith) for such  period as Microsoft may require to transition its search engine services to  non-Inktomi technology (the Transition Period), and Inktomi will waive all  royalties otherwise payable pursuant to the Software Development Agreement  and/or the Information Services Agreement between the parties of even date  herewith; for the purposes of this clause (iv), the Transition Period will  commence at such time as Microsoft assumes control over said separate cluster  and begins itself operating the Microsoft Search Engine, and will continue  thereafter for eighteen months (18) or until the

                                      24

  termination of the Software Development Agreement and Information Services  Agreement (whichever is longer);

(v)   Inktomi will direct the Escrow Agent to release to Microsoft all Confidential Materials held by the Escrow Agent, subject to Microsoft's agreement to use such Confidential Materials only in connection with its licensed rights under clause (iv) above;

(vi)  Inktomi will agree to reimburse Microsoft for all reasonable costs incurred by Microsoft in transitioning its search engine to non-Inktomi technology (whether created by Microsoft or by a third party); and

(vii) Inktomi will cause the applicable proposed transferee of this Agreement to assume, jointly and severally with Inktomi, all of Inktomi's obligations  hereunder.

Microsoft will cooperate with Inktomi and use its reasonable best efforts so as





to enable Inktomi to satisfy the foregoing conditions precedent in a timely  manner. Upon satisfaction of the foregoing conditions precedent, this Software  Hosting Agreement shall be deemed terminated pursuant to Section 10.1. Upon  expiration of the Transition Period, all rights granted to Microsoft to use the  Product (other than Microsoft Technology, Joint Derivative Technology and the  Microsoft Derivative Technology) and/or any Inktomi Technology under the  transitional license referred to in clause (iv) or otherwise shall cease, and  Microsoft shall immediately return to Inktomi all Confidential Materials (and all copies thereof), provided however that, notwithstanding any provision of the Ancillary Agreements to the contrary, the undertaking by Inktomi to indemnify Microsoft and hold it harmless against Taxes as provided in clause (ii) above shall survive any such terminations.

                                      25 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
Inktomi will maintain insurance (including but not limited

Exhibit 99.1   CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***

MOBILE VIRTUAL NETWORK ENABLER HOSTING AGREEMENT

BETWEEN

T-MOBILE NETHERLANDS B.V.

&

Elephant Talk Communication Holding AG

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  TABLE OF CONTENT 1. Definitions 2. Purpose and Scope of the Agreement 3. Hosting Services 4. Implementation 5. Forecast & Commitments 6. Service level 7. Data Protection & Privacy 8. The co-operation relationship 9. Prices, Charging, Billing & Accounting 10. Customer Care Support 11. Confidentiality 12. Limitation of Liability 13. Suspension and termination of Hosting Services 14. Force Majeure 15. Intellectual Property Rights 16. SIM cards and Calling Credit 17. Duration of the Agreement 18. Termination of the Agreement 19. Modifications 20. Miscellaneous 21. Governing Law 22. Dispute resolution 23. Counterpart

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  MOBILE VIRTUALNETWORK ENABLER HOSTING AGREEMENT by and between ELEPHANT TALK and T-Mobile

(T-Mobile hosting ELEPHANT TALK)

This Agreement is made between Elephant Talk Communication Holding AG, a company incorporated under the laws of Switzerland, having its registered office at Baarerstrasse 135, CH-6301 Zug, Switzerland, legally and duly represented by its Chief Executive Officer Steven van der Velden and its Chief Operations Officer and Chief Technology Officer Martin Zuurbier, hereinafter referred to as: ELEPHANT TALK

and

T-Mobile Netherlands B.V., a company incorporated under the laws of the Netherlands, having its registered office at the Waldorpstraat 60, 2521 CC Den Haag, the Netherlands, legally and duly represented by its Managing Director Niek Jan van Damme and its Marketing Director, Bart Weijermars, hereinafter referred to as: T-Mobile

each individually referred to as Party and together as Parties.   WHEREAS:

1. ELEPHANT TALK wishes to become a full Mobile Virtual Network Enabler (hereinafter: MVNE) providing mobile telecommunications services to legal entities partnering with ELEPHANT TALK to offer mobile services in an (Enhanced) Service Provider model using the T- Mobile network and the by T-Mobile provided wholesale mobile network services;       2. T-Mobile is a licensed Dutch mobile telecommunications and services provider operating inter alia its own GSM and UMTS/HSDPA mobile network in The Netherlands with related basic services and offering wholesale and retail mobile network services and associated services on the Dutch market;     3. ***  and ELEPHANT TALK have conducted preliminary discussions and negotiations leading to an initial understanding on the basic business principles of an envisaged co-operation between *** and ELEPHANT TALK, which has been laid down in Heads of Agreement between *** and ELEPHANT TALK ***;     4. ***;      5. In answer to the proposal of *** and the additions to this proposal by T-Mobile, ELEPHANT TALK has confirmed by letter dated November 30, 2007 that it agrees to be directly implemented on the T-Mobile network in order to *** the T-Mobile network;      6. ELEPHANT TALK therefore wishes to obtain from T-Mobile wholesale mobile network services and associated services and T-Mobile is willing to offer ELEPHANT TALK such services;      7. Following the signing of the aforementioned Heads of Agreement between *** and ELEPHANT TALK, Parties have continued their discussions and negotiations with regard to their envisaged co-operation and have reached agreement on the terms and conditions in that respect, which are laid down in this Agreement;    NOW, THEREFORE, the Parties have agreed as follows:

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  1.  DEFINITIONS   For the purpose of this Agreement, the following words and phrases shall have the meanings set forth in their respective definitions, unless a different meaning is called for in the context of another provision in this Agreement:

1.1    Affiliated Company of a Party shall mean any other legal entity: ·  directly or indirectly owning or controlling the Party (Mother company), or   · under the direct or indirect ownership or control of the same legal entity (Mother company) directly or indirectly owning or controlling the Party, or   · directly or indirectly owned or controlled by the Party, for as long as such ownership or control lasts. Ownership or control shall exist through the direct or indirect ownership of more than fifty (50) percent of the nominal value of the issued equity share capital or of more than fifty (50) percent of the shares entitling the holders to vote for the election of directors or persons performing similar functions.

1.2 Agreement shall mean the Mobile Virtual Network Enabler(MVNE) hosting agreement together with the Appendices attached to this MVNE hosting agreement.   1.3 Appendix and Appendices shall mean the appendix or appendices attached to this Agreement.

1.4 Business Day shall mean any day other than Saturdays, Sundays and Dutch generally recognized public holidays.

1.5 Calendar Day shall mean any day including Saturdays, Sundays and Dutch generally recognized public holidays.

1.6 CDR shall mean call detail record.

1.7 Commercial Launch Date shall mean the date on which ELEPHANT TALK commercially launches the Hosting Services and starts providing the ELEPHANT TALK Services commercially to ELEPHANT TALK Customers in the Dutch market (not being the Soft Launch). The Commercial Launch Date shall not be later than six (6) weeks after the Ready for Service Date.

1.8 Date of the Agreement shall mean the date on which both Parties have signed the Agreement by their duly authorized representatives or, if the Parties sign this Agreement on different dates, the later date being the date the Agreement comes fully into effect.

1.9 ELEPHANT TALK Customer shall mean any company or legal entity partnering with ELEPHANT TALK, which wishes to offer mobile services in a MVNO/ESP/SP model using the T-Mobile Network and the by T-Mobile provided Hosting Services under the terms and conditions as mentioned in this Agreement. ELEPHANT TALK Customers might include the mobile end-users of ELEPHANT TALK Customers, subject to the interpretation of the specific provision.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  1.10 ELEPHANT TALK Infrastructure shall mean the entire (current and future) servers and systems of ELEPHANT TALK, including the physical or logical link to the NAP, as described in Appendix 11.

1.11 ELEPHANT TALK Wholesale Services shall mean the mobile telecommunication services provided by ELEPHANT TALK to the ELEPHANT TALK Customers, offering services in a MVNO/ESP/SP model, based on the Hosting Services via the T-Mobile Network and the networks of the T-Mobile roaming partners.

1.12 GSM Association Permanent Reference Documents shall mean the documents that are established, recognized and classified as binding by the GSM Association Plenary.

1.13 GSM Association Plenary shall mean the group of appointed representatives of the Signatories of the GSM Association.

1.14 GSM Specifications shall mean ETSI GSM technical specifications, as defined by the GSM Association.

1.15 Hosting Service(s) shall mean the network hosting (and related) services - as listed in Appendix 1 - provided by T-Mobile to ELEPHANT TALK under the Agreement, enabling ELEPHANT TALK to provide ELEPHANT TALK Wholesale Services to ELEPHANT TALK Customers in accordance with its terms and conditions of the Agreement.

1.16 Implementation Plan shall have the meaning as described to it in Appendix 3.

1.17 IMSI means the International Mobile Subscriber Identity, ***

1.18 Initial Term means the initial duration of the Agreement as agreed upon between the Parties and defined in article 17.1

1.19 IN platform (the intelligent network platform) shall mean the technical architecture and telecommunications systems of ELEPHANT TALK for routing calls and charging real-time the outgoing calls of ELEPHANT TALK Customers. 1.20 Location Areas (LAs) shall mean the individual geographic areas into which the T-Mobile Network is divided at any time.

1.21 MSISDN shall mean Mobile Station Integrated Services Digital Network Number.

1.22 NAP shall mean Network Access Point, as described in Appendix 11.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  1.23 Operational Manual shall mean the working document in which Parties agree upon (dynamic) activities and procedures as described in the Agreement in more detail for the duration of the Agreement. The Operational Manual is a dynamic document. The latest valid and binding version shall be the one agreed in writing between the Parties in accordance with article 19.3.

1.24 *** means the company formerly known as ***. formed under the laws of the Netherlands, *** in The Hague, The Netherlands.

1.25 Protocol of Delivery (also referred to as PoD) shall mean the document, as attached in Appendix 10, provided by T-Mobile to ELEPHANT TALK following the Soft Launch for the purpose of accepting the Hosting Services by ELEPHANT TALK.

1.26 Quarter and Quarterly shall mean a quarter of a year, being three consecutive months starting every January, April, July and/or October of every calendar year.

1.27 Ready for Service Date shall mean the date, following the Soft Launch, upon which the Hosting Services agreed between the Parties - in accordance with article 3 - meet the agreed specification as evidenced by the signing of the Protocol for Delivery.

1.28 Ready for Test Date shall mean the date on which the end-to-end test, to be performed internally by T-Mobile solely, has been completed by T-Mobile and pursuant to which ELEPHANT TALK can commence the Soft Launch.

1.29 Regulatory Provisions shall mean all applicable laws, directives, consents, specifications, regulations and/or stipulations set forth by the relevant regulatory authority.

1.30 SIM card shall mean a subscriber identity module (chip) card for the identification of -the mobile end-users of - an ELEPHANT TALK Customer on the T-Mobile Network and enables access to the ELEPHANT TALK Wholesale Services.

1.31 SLA means the Service Level Agreement attached hereto in Appendix 6.

1.32 Soft Launch shall mean the test to be performed under article 4 and as described in Appendix 3 and the period in which ELEPHANT TALK can gain experience with the functionalities of the Hosting Services prior to the Commercial Launch Date.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

Source: PARETEUM CORP, 8-K, 10/1/2008





  1.33 TAP shall mean Transferred Account Procedure as defined and described in GSM Association Permanent Reference Documents.

1.34 Technical Specification shall mean the working document in which Parties agree upon the technical specification of the Hosting Services as attached in Appendix 11.   1.35 T-Mobile Network shall mean the T-Mobile DCS 1800 and UMTS/HSDPA mobile telecommunications network, including all network elements, in the Netherlands, as described in Appendix 1.   2.  PURPOSE AND SCOPE OF THE AGREEMENT

2.1 The purpose of this Agreement is to lay down the general terms and conditions between the Parties under which T-Mobile shall provide the Hosting Services and ELEPHANT TALK shall purchase the Hosting Services from T-Mobile, whereby T-Mobile shall enable ELEPHANT TALK to market, sell and provide mobile telecommunication services to the ELEPHANT TALK Customers via the T-Mobile Network. For the avoidance of doubt, ELEPHANT TALK is not entitled to provide (retail) telecommunication services based on the Hosting Service to others than ELEPHANT TALK Customers, such as but not limited to mobile end-users or business companies with their own end-users.

In the event that *** Parties shall negotiate the terms and conditions under which T-Mobile shall provide and ELEPHANT TALK shall purchase the services from T-Mobile. These terms and conditions shall be laid down in a separate document and shall therefore not be part of this Agreement.

2.2 T-Mobile is entitled without limitations, to *** related services to any other party.

2.3 ELEPHANT TALK will not enter into any discussions or agreement on the provisioning of (similar) Hosting Services as defined in Appendix 1 with any *** in the Netherlands for the duration of the Initial Term of the Agreement. In case ELEPHANT TALK has provided to T-Mobile the twelve month termination notice in accordance with article 17.2, ELEPHANT TALK ***.

2.4 The co-operation between Parties shall regard ***. The Hosting Services are intended for ***. ELEPHANT TALK is allowed to provide SIM cards to ELEPHANT TALK Customers under the terms and conditions as mentioned in this Agreement.     2.5  For the scope of this Agreement, ELEPHANT TALK (including its Affiliated Companies) shall not provide the Hosting Services to ***. Excluded from this provision is the situation wherein ELEPHANT TALK provides *** under the terms and conditions as set out in this article.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  ELEPHANT TALK is not allowed, without the explicit written approval of T-Mobile, to provide the ELEPHANT TALK Wholesale Services: I.   to the below stated categories of companies, including companies that represent a company in one of these categories, affiliated companies and/or companies that can offer a brand from a company in one of the following categories:   a) ***   b) ***   c) ***.

  II. in the situation where T-Mobile for good reason refuses a ELEPHANT TALK Customer access to the T-Mobile Network such as:   a) association with - proven- bad taste (companies or brands with a direct reference to subjects such as criminal or illegal behavior, violence or drugs);   b) possible harm of the good name of T-Mobile;   c) breach of an intellectual property right of T-Mobile; and/or   d) conflict with key strategic issues for T-Mobile and Deutsche Telekom Affiliate Companies (such as legal issues and court cases).   The ELEPHANT TALK Customers will not directly or indirectly provide the ELEPHANT TALK Wholesale Services to others, including an Affiliated Company, with the objective to resell wholesale telecommunication services based on the by T-Mobile provided Hosting Services to mobile telecommunication users.

2.6   Parties agree to implement an ELEPHANT TALK ***, and therefore would not result in additional costs for ELEPHANT TALK.   In order to execute this assessment Parties will discuss the detailed business requirements - provided by ELEPHANT TALK for the implementation of the ELEPHANT TALK *** - and will do the utmost to agree on this set of business requirements before or on *** Provided that Parties have agreed upon the final set of business requirements before or on ***, Parties shall subsequently execute an initial evaluation - based on the business requirements - of the impact of the implementation on the T-Mobile infrastructure and network. Parties agree to finalize this initial evaluation on ***. The outcome of the initial evaluation shall consist of an agreed high level project plan for the implementation of at least the implementation of the *** solution. Following the initial evaluation Parties will further discuss and negotiate in good faith the elements of the project plan, including the alignment of *** and available resources in order to implement the ***. Both Parties aim to implement the *** before ***. However, the actual implementation date of the *** solution is subject to the chosen technical and operational solution for the *** solution. In any case T-Mobile is obliged to implement the *** before or on ***.

2.7 ELEPHANT TALK shall purchase the Hosting Services from T-Mobile as an independent contractor. ELEPHANT TALK shall sell and market the ELEPHANT TALK Wholesale Services to ELEPHANT TALK Customers in its own name, for its own account and on its own risk (subject to the terms of this Agreement). ELEPHANT TALK warrants T-Mobile that ELEPHANT TALK Customers shall sell and market their mobile telecommunication services based on the ELEPHANT TALK Wholesale Services in its own name, for its own account and on its own risk. ELEPHANT TALK and ELEPHANT TALK Customers shall not in any respect represent T-Mobile or enter into any agreement or other commitment on T-Mobile's behalf.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  2.8 ELEPHANT TALK shall ensure that the ELEPHANT TALK Infrastructure complies with the Technical Specifications, as set out in Appendix 11.

2.9 Parties acknowledge that the Dutch telecommunications market is regulated under both Dutch and EU law, such as inter alia EU-directives, the Dutch Telecommunications Act, Dutch Competition Act and the Dutch Data Protection Act. Parties shall at all times fully comply with all relevant regulations, such as but not limited to, the obligation for ELEPHANT TALK - as providers of public electronic communications services in the Netherlands- to notify OPTA according to article 2.1 of the Dutch Telecommunication Act.

Furthermore, Parties acknowledge that their arrangements are subject to said regulations, and that Parties' arrangements (including pricing arrangements) may, from time to time, require adjustment(s) due to change of such regulations.

2.10 The Hosting Services shall be provided in accordance with relevant GSM Specifications and the GSM Association Permanent Reference Documents, including all the commercial aspects, as defined in the Agreement. This foregoing is however subject to the additional requirements and exceptions to the GSM specifications and GSM Association Permanent Reference Documents as may be agreed in writing between Parties.

2.11 The Parties recognize that it may be appropriate to modify this Agreement, in circumstances in which they deem it important to do so, in the light of experience and development in the GSM Association, the GSM Specifications, the GSM Association Permanent Reference Documents and mobile telecommunications services available at the market not offered by T-Mobile under this Agreement In such case Parties shall agree upon a workable solution and act accordingly.

2.12 The Appendices shall form an integral part of the Agreement and shall be fully binding on and enforceable by and against the Parties as applicable in accordance with this Agreement. In case that the Agreement contains contradictory provisions, the documents constituting the Agreement shall have the following priority for the purpose of interpretation: a)  the Agreement; b)  the Appendices in order of their number;

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008



Source: PARETEUM CORP, 8-K, 10/1/2008





Appendix No. Appendix Name Appendix 1 Service Description Appendix 2 Financials Appendix 3 Implementation plan Appendix 4 Forecasting Appendix 5 Lawful Intercept Appendix 6 Service Level Agreement Appendix 7 Accounting and Billing Appendix 8 Roaming Appendix 9 Bank guarantee Appendix10 Protocol of Delivery Appendix 11 Technical Specification Appendix 12 *** Appendix 13 ***   3.  HOSTING SERVICES

3.1 T-Mobile shall provide the Hosting Services, as described in Appendix 1, during the term of this Agreement from the Ready for Service Date.

3.2 T-Mobile shall ensure that all *** from ELEPHANT TALK Customers and other telecommunication end users in the Netherlands and in the relevant roaming countries, as further specified in the Agreement.

3.3 ELEPHANT TALK is responsible and accountable for the installation, maintenance and availability of the leased line between ELEPHANT TALK's POP and the T-Mobile Network, as described in Appendix 1.

3.4   T-Mobile is open and willing to discuss with ELEPHANT TALK the provision to ELEPHANT TALK of new services, meaning services out of the scope of this Agreement, in the Dutch market.

3.5 Parties agree that ELEPHANT TALK, if applicable, makes a feature available in the SIM card to display the brand name of ELEPHANT TALK Customers, when ELEPHANT TALK Customers are connected - via the ELEPHANT TALK Infrastructure - to the T-Mobile Network. T-Mobile is aware of the fact that out-dated devices might not support this feature available in the SIM cards.

3.6 Parties agree to implement the rules and procedures pursuant to Dutch legislation for number portability prior to the Ready for Service Date, according to Appendix 1. A ELEPHANT TALK MSISDN that is out-ported from ELEPHANT TALK's customer base will be barred from accessing the ELEPHANT TALK Services in the T-Mobile Network.

3.7 Parties shall use their best efforts to ensure ***  as set out in Appendix 1. ELEPHANT TALK is responsible and liable for ***, as described in Appendix 11.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  3.8 T-Mobile shall support ELEPHANT TALK in fulfilling its legal obligations under Dutch law with respect to lawful interception under the terms and conditions as set forth in detail in Appendix 5. ELEPHANT TALK agrees to inform in writing, before the Ready for Service Date, the relevant Dutch authority (which is at the time of closing of this Agreement the public prosecutor) that T-Mobile will carry out the lawful intercept requests regarding ELEPHANT TALK Customers and that T-Mobile will and is entitled to collect the financial compensation of the concerning authority for these legal intercept activities on behalf of ELEPHANT TALK. ELEPHANT TALK shall provide T-Mobile with a copy of the aforementioned letter to the relevant Dutch authority before the Ready for Service Date.   4.  IMPLEMENTATION

4.1 The Parties shall implement the Hosting Services according to the Implementation Plan, as described in Appendix 3.

4.2 The Parties shall provide each other with information on preparations made and other details relevant to the implementation of the Hosting Services.

4.3 If it becomes known to a Party that either a delay shall occur or is likely to occur, such Party shall immediately notify the other Party thereof in writing. In such case, the reason for the delay shall be given as well as the moment when it is anticipated that the implementation can take place.

4.4   ***. T-Mobile shall resolve every critical part of the Hosting Service as soon as reasonable possible and in any event before the date which is *** after the agreed ***.     Once the Hosting Service and every critical part, as *** the PoD, thereof has successfully passed the *** pursuant to the procedures described in the PoD and Appendix 3 the Service shall be accepted by ELEPHANT TALK and ELEPHANT TALK shall sign the Protocol of Delivery acknowledging such acceptance.

4.5 Subject to article 4.4., ELEPHANT TALK shall commence the Soft Launch on or after the ***. From the *** ELEPHANT TALK shall be permitted to (technically) test the Hosting Services for the duration of five (5) calendar weeks, with a limited number of users (***). The traffic generated during the Soft Launch shall be free of charge for up to *** - based on the tariffs T-Mobile will charge ELEPHANT TALK according to Appendix 2. For all other users and costs above the ***,- per user, ELEPHANT TALK has to pay the fees for the Hosting Services as defined in Appendix 2. The Soft Launch is not part of the forecasts pursuant to Appendix 4. ELEPHANT TALK will finalize the Soft Launch by signing the Protocol of Delivery, according to Appendix 3 and 11.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  4.6   If it would become applicable, ELEPHANT TALK shall obtain any regulatory approvals, consents, or decisions which allow ELEPHANT TALK to utilize the Hosting Services from T-Mobile to provide the ELEPHANT TALK Services to ELEPHANT TALK Customers as contemplated by this Agreement. T-Mobile agrees - but is not obliged - to reasonably assist ELEPHANT TALK in obtaining such regulatory approvals, consents or decisions, especially by making available to ELEPHANT TALK necessary documents, technical specifications and other information required and by cooperating through common communication to any regulatory authorities.    5.  FORECASTS & COMMITMENTS

5.1 A trial period, covering the *** calendar months from Commercial Launch Date shall apply for ELEPHANT TALK in order to gain experiences and knowledge for ELEPHANT TALK on forecasting and call behavior of its ELEPHANT TALK Customers. ***.

5.2 ELEPHANT TALK shall provide Quarterly forecasts in writing expressed in volume for the use of the Hosting Services. Details as Parties have agreed upon regarding the forecasts are stipulated in Appendix 4.

5.3 ***.

5.4 ELEPHANT TALK accepts that T-Mobile will not be bound to the service level agreed between Parties pursuant to article 6 of this Agreement in relation to the relevant Quarter, if the ***.

5.5 In case of (promotional) actions and events that will or might temporarily exceed the forecasted traffic volume, ELEPHANT TALK shall inform T-Mobile as soon as possible, after which T-Mobile shall make reasonable efforts to take appropriate and business wise feasible measures to prevent network interruptions.    6.  SERVICE LEVEL

6.1   The Hosting Services shall be provided in accordance with the level of service and support as the Parties have agreed upon in Appendix 6.

6.2   At no point in time shall one of the Parties carry out service or support on equipment, excluding SIM cards ordered according to article 16, that belongs to the other Party or is provided or maintained by the other Party, unless the other Party has agreed in writing to such measures in advance.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  6.3   T-Mobile shall give prior notice to ELEPHANT TALK about planned outages and planned work as agreed in Appendix 6.   7.   DATA PROTECTION & PRIVACY

7.1 All rights to the personal and traffic data related to ELEPHANT TALK Customers which ELEPHANT TALK places at the disposal of T- Mobile, as well as to the results of the T-Mobile registering and processing of this data, shall rest in ELEPHANT TALK. T-Mobile shall have at its disposal data covered by the Agreement only to the extent and as long as necessary for T-Mobile to fulfill its obligations pursuant to this Agreement.

7.2 Both Parties confirm that they shall comply with the Data Privacy regulations and laws applicable in the Netherlands and internationally, including the Dutch Data Protection Act (Wet Bescherming Persoonsgegevens), as amended or varied from time to time. T-Mobile undertakes to process personal data only for the purpose of this Agreement.

7.3 ***. T-Mobile will refrain from using any ELEPHANT TALK Customer related data for any other purpose than providing the Hosting Services to ELEPHANT TALK, with the exception of:   · legal tapping requirements in accordance with a request from the relevant public body; and   · necessary use for the purposes of preventing, tracing and fighting fraud or irregularities; and   · other activities required by law.

8.  THE CO-OPERATION RELATIONSHIP   8.1 The authorized members of each Party shall fully co-operate in the performance of the Agreement. The account manager of each Party shall act as the first point of contact in relation to any issues provided for in the Agreement. Each Party may change its contact person at any time by informing the other Party in writing.

8.2 The Parties shall promptly inform each other of a breakdown in their respective systems or mobile telecommunications Network that has or might have an effect on the Hosting Services and/or the Agreement.     8.3   ***

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  9.  PRICES, CHARGING, BILLING AND ACCOUNTING   9.1  Development costs & prices for Hosting Services

9.1.1 Subject to the terms of this Agreement, ELEPHANT TALK shall pay T-Mobile the total amount of *** -as specified in Appendix 2, as a contribution for upfront (network related) developments costs of the Hosting Services, including *** services, as described in Appendix 1. Payments shall be made in accordance with article 9.2.

9.1.2 The prices to be paid by ELEPHANT TALK to T-Mobile for the Hosting Services rendered are stated in Appendix 2. Such prices may be amended in accordance with the terms of this Agreement and Appendix 2 and shall be paid by ELEPHANT TALK to T-Mobile in accordance with article 9.2.

9.1.3 If the prices due to subsequent changes in Dutch laws and regulations become invalid or unenforceable the prices shall be modified to the extent required in order to be in conformity with such laws and regulations. In the event that such change of prices reasonably requires that Parties revise the applicable price structure of the Hosting Services in its entirety, Parties shall enter into good faith negotiations to agree upon new prices.   9.2   Charging   9.2.1 T-Mobile has charged the first installment of *** to ELEPHANT TALK with regard to ELEPHANT TALK's contribution for upfront (network related) developments costs, as mentioned in article 9.1.1, after signing of the Heads of Agreement between the Parties dated ***. The second installment of *** shall be charged to ELEPHANT TALK right after signing of the Agreement and shall be paid by ELEPHANT TALK within fifteen (15) Calendar Days of the invoice date.

9.2.2 Whenever an ELEPHANT TALK Customer uses the ELEPHANT TALK Wholesale Services, ELEPHANT TALK shall be fully responsible for timely payment of the appropriate price(s) established under article 9.1.2 for the Hosting Services used. ELEPHANT TALK shall pay to T-Mobile the charges for the Hosting Services as from the Ready for Service Date, including the charges mentioned under article 4.5.

9.2.3 In addition to the invoice mentioned under article 9.2.1., T-Mobile shall on a monthly arrear basis submit invoices to ELEPHANT TALK detailing the prices payable by ELEPHANT TALK under article 9.2.2. T-Mobile will send the following invoices for: a)  network hosting services***; a)  costs of authorized lawful intercept (to the extent provided for under Appendix 5); b)  costs for other services agreed upon.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

9.2.4 ELEPHANT TALK shall pay all invoices no later than *** after the invoice date. ELEPHANT TALK ***, in the event that ELEPHANT TALK fails to meet ***

9.2.5 ***

9.2.6 Invoices submitted to ELEPHANT TALK by T-Mobile shall be itemized in accordance with Dutch acknowledged principles of billing and accounting.

9.2.7 All charges under this Agreement are exclusive of value-added tax (VAT), duties or levies imposed by any authority, government or governmental agency and any other applicable taxes payable in relation to the Hosting Services supplied to ELEPHANT TALK. Any taxes shall be charged in accordance with the relevant regulations in force at the time of making the taxable supply to ELEPHANT TALK and shall be paid by ELEPHANT TALK. All amounts and any payment of charges under this Agreement shall be made in EUROS and in full without any set-off, deductions or withholding whatsoever.

9.2.8 Invoices not paid within the time limit set down in article 9.2.4 shall bear interest (enkelvoudig) on a daily basis at the rate of the legal commercial interest rate (wettelijke handelsrente) plus 1 % until full payment is received by T-Mobile whether before or after judgment. Interest shall continue to accrue notwithstanding termination or expiry of this Agreement for any cause whatsoever.

9.2.9 ELEPHANT TALK may object to any invoice according to the procedure set out in article 4 of Appendix 7, Accounting and Billing. In the event of invoicing irregularities, Parties shall use their best efforts to establish the reason for and to eliminate such irregularities as quickly as possible.     9.2.10  ELEPHANT TALK will be accountable for and shall pay all generated traffic by ELEPHANT TALK Customers -including traffic generated via stolen or lost SIM cards - to T-Mobile .      9.2.11 ELEPHANT TALK bears the risk of and shall indemnify T-Mobile against high usage, fraud and bed debts/non-payment of its ELEPHANT TALK Customers.   9.3  Billing and Accounting   9.3.1 Procedures for billing and accounting information are provided in Appendix 7.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  9.3.2 In order to exchange invoice information, TAP files will be transferred by T-Mobile to ELEPHANT TALK, as stated in Appendix 7.

9.3.3 For verification purposes T-Mobile will keep the CDRs in accordance with Dutch legislation.       9.4  Financial security

9.4.1.   ***

***: a. ELEPHANT TALK has been declared bankrupt or has applied for bankruptcy according to 18.1 sub g, or; b. ELEPHANT TALK ***   ***.

9.4.2. T-Mobile shall not require financial security as set out in 9.4.1as long as the '***

T-Mobile customers using *** will ***. For *** ELEPHANT TALK will issue an invoice to T-Mobile. Parties agree that as long as:   · *** ; and   · the invoice for these *** delivery of the Hosting Services by T-Mobile according to this Agreement, article 9.4.1. shall not apply. In the event that ELEPHANT TALK does not comply with the payment terms as set out in article 9.2.4., Parties agree that T-Mobile is entitled *** ELEPHANT TALK following the '*** with the amounts which ELEPHANT TALK ( or any of its Affiliates) is due to T-Mobile according to this Agreement.

9.4.3. As soon as article 9.4.2. does no longer apply - ***.   10.  CUSTOMER CARE SUPPORT

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  10.1  ELEPHANT TALK shall for its own account and at its own cost maintain a customer support organization for ELEPHANT TALK Customers. In addition, T-Mobile shall provide second line customer care support to the back office of ELEPHANT TALK's customer support organization, according to Appendix 1, 2 and 6.     10.2 For the avoidance of doubt, it is stated that Parties agree that T-Mobile shall not provide customer support services to ELEPHANT TALK Customers (meaning end-users of ELEPHANT TALK Customers) directly.   11.  CONFIDENTIALITY

11.1 The Parties agree that all aspects of the content of this Agreement shall be treated as confidential and that no information in respect of the content and/or existence of this Agreement shall be disclosed without the prior written consent of both Parties. Neither Party shall make any public announcements, including but not limited to press releases, articles, brochures, advertisements and speeches, concerning this Agreement without the prior written consent of the other Party. However, ELEPHANT TALK is entitled to communicate - as far as strictly necessary for the proper conclusion of its agreements- to the ELEPHANT TALK Customer that its services are provided by (the) T-Mobile (network). ELEPHANT TALK Customers shall be entitled to communicate that the network coverage is provided by T-Mobile, only in case they are asked for it. Under no circumstances, ELEPHANT TALK Customers shall make any public announcements, including but not limited to press releases, commercial articles (not being technical or business articles), brochures, advertisements, public speeches and other promotional material, that its services to mobile end-users are provided by the T-Mobile network. Parties are aware of the fact that it might be impossible for technical reasons to make a reference to the ELEPHANT TALK (Customer) brand name on the display of devices and that the T-Mobile brand name may appear. ELEPHANT TALK shall do the utmost to ensure that the communication to mobile telecommunication end-users- including the communication of ELEPHANT TALK Customers - shall be in accordance with this article.

11.2 The Parties hereby agree to treat all information exchanged between them (hereinafter referred to as Confidential Information) whether for the purposes of this Agreement or not as confidential and agree not to disclose such Confidential Information in any manner whatsoever in whole or in part except as provided for in the article 11.4. The Parties may disclose Confidential Information only to employees, attorneys at law and accountants or other professional advisers who need to know such Confidential Information for the purposes of participation in the discussions connected with this Agreement between the Parties and any transaction resulting there from and who are informed of and bound to the confidential nature of such Confidential Information.

11.3 Notwithstanding the above, in the event that the receiving Party or (to the receiving Party's knowledge) anyone to whom the Confidential Information has been supplied to by the receiving Party receives a request to disclose under the terms of a subpoena, order, civil investigative demand or similar process issued by a court of competent jurisdiction or by a governmental body all or any part of the Confidential Information, such receiving Party agrees to:

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

    i. notify the disclosing Party promptly in writing of the existence, terms, and circumstances surrounding such request;   ii. consult with the disclosing Party on the advisability of taking legally available steps to resist or narrow such request;   iii. give the disclosing Party the opportunity to defend, limit or protect against such disclosure;   iv. if disclosure of such information is lawfully required, furnish only that portion of the Confidential Information which is legally necessary or appropriate in the light of all the circumstances and seek to obtain confidential treatment for any information required to be disclosed.

11.4 For the purposes of this Agreement, Confidential Information shall not be considered to be confidential if such Confidential Information is: a)  in or passed into the public domain other than by breach of this Agreement; or b)  known to the receiving Party prior to the disclosure by the disclosing Party without any obligation of confidentiality; or c)  disclosed to a receiving Party without restriction by a third party having the full right to disclose; or d)  independently developed by a receiving Party to whom no disclosure of Confidential Information relevant to the development of such Confidential Information has been made.

11.5 This article 11 shall survive the termination of this Agreement as provided for in articles 17 and 18 for a period of two (2) years but shall not in any way limit or restrict either Party's use of its own Confidential Information.   12.  LIMITATION OF LIABILITY

12.1 Without prejudice to the provisions expressly stated elsewhere in this Agreement, a Party's liability for damage suffered by the other Party, attributable to the first mentioned Party or a person for whom it is liable by law, shall be limited to the following events, and the following amounts:     a)   for direct damage to physical goods (property damage or zaakschade) or directly resulting from death or personal injury: up to a maximum of *** per event or series of connected events and up to a further maximum of *** for all events (connected or not) in any period of 12 calendar months;           b)   for damage directly resulting from a material breach of this Agreement: up to a maximum *** or *** as set out in Appendix 2), whatever amount is the highest, in any period of 12 calendar months.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  12.2 In no event shall either Party be liable for indirect or consequential loss or damage, including but not limited to, loss of profit, loss of sales or turnover, loss of or damage to reputation, loss of contract, loss of business, loss of anticipated savings and interest, increased operation costs, increase maintenance costs even if such loss or damage was reasonably foreseeable or if a Party had been advised by the other Party of the possibility of incurring such loss or damage.     12.3 In no event shall any employee of either Party or of an Affiliated Company be liable to the other Party for any act of negligence or intent under or in connection with this Agreement. Save for the limitations in articles 12.1 and 12.2 nothing in the foregoing shall in any way restrict the liability of either Party for the actions of its employees.

12.4 Limitation of liability as described in this article shall not apply:   a) in case the damage or loss is caused by a Party's willful misconduct (including fraud) or gross negligence, or   b) in case of a breach of a Parties obligation under article 11 (confidentiality) and article 15 (indemnification for breach of intellectual property rights).     12.5 Any claim for damages must be notified to the other Party within six (6) months as from the date on which the damage was caused, failing which such claim is deemed to be waived.     12.6  ELEPHANT TALK will be fully responsible for the settlement of, and shall indemnify (vrijwaren) T-Mobile against any claims made by ELEPHANT TALK Customers or third parties with whom ELEPHANT TALK has a (contractual) relationship and which claims are related to this (contractual) relationship   13.  SUSPENSION AND TERMINATION OF HOSTING SERVICES

13.1 Notwithstanding anything stipulated in the Agreement, T-Mobile may without liability suspend or terminate whole or part of the Hosting Services in relation to one or more ELEPHANT TALK Customers, in circumstances where T-Mobile would suspend or terminate those services to its own customers, in the following circumstances - or circumstances of similar severity. a)  ***;   b)  ***; or c)  suspected fraudulent or unauthorized use by the relevant ***; or   d) necessary maintenance or enhancement of the T-Mobile Network. In the event of planned suspension or termination of all or any of the Hosting Services, T-Mobile shall inform ELEPHANT TALK accordingly by sending a written notification, as soon as reasonably and business wise possible.

13.2 Furthermore, T-Mobile may without liability temporarily suspend all or any of its Hosting Services to ELEPHANT TALK if a (partial or temporary) breakdown on the T-Mobile Network should occur. Such temporarily suspension shall - to the extent possible - be limited to the Location Areas where the temporarily breakdown occurs. Immediately after the T-Mobile Network has been restored, T-Mobile shall take all appropriate measures in order to re-establish the Hosting Services with the shortest possible delay, in accordance with the procedures as described in Appendix 6.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  13.3 T-Mobile may without liability limit at its own discretion the availability of all or any of the Hosting Services above the level of the traffic forecasts of Hosting Services as defined in article 5 and Appendix 4, provided that the provision of these Hosting Services -above the level of the traffic forecasts - to ELEPHANT TALK have a noticeable negative impact on the quality of the T-Mobile Network and on the provision of services to T-Mobile customers.   14.  FORCE MAJEURE

14.1 Non-performance by either Party of its obligations pursuant to this Agreement or delay in performing the same shall not constitute a breach of the Agreement if and for as long as it is due to a force majeure event, including, but not limited to, government action or requirement of regulatory authority, lock-outs, strikes, shortage of transportation, war, terrorist attacks, rebellion or other military action, fire, floods, natural catastrophes, that a Party is not able to overcome with reasonable and proportional efforts, or a non-performance of obligations by a sub-contractor to a Party - in circumstances where it is reasonably impossible for that Party or an other sub-contractor to perform such obligation instead -, pursuant to any of the aforementioned reasons.

14.2 The Party prevented from fulfilling its obligations shall on becoming aware of such event inform the other Party in writing of such force majeure event as soon as possible. If the affected Party fails to inform the other Party of the occurrence of a force majeure event as set out in article 14.1 above, then such Party thereafter shall not be entitled to refer such events to force majeure as a reason for non-fulfillment. This obligation does not apply if the force majeure event is known by both Parties or the affected Party is unable to inform the other Party due to the force majeure event.

14.3 If the force majeure event continues for more than two (2) consecutive calendar weeks, then the Parties shall promptly meet and discuss methods to resolve the difficulties arising from the event of force majeure. If no agreement is reached by the Parties within a period of fifteen(15) Calendar Days and the force majeure event continues to have a substantial effect on the performance of the Agreement, either Party shall have the right to terminate this Agreement in whole or in part with immediate effect by written notice without incurring any financial liability to the other Party as a consequence of such termination.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  15.  INTELLECTUAL PROPERTY RIGHTS

15.1 This Agreement does not imply any transfer of intellectual property right. Neither Party shall use the other Party's name, trademarks, service marks or other intellectual property rights without the other Party's prior written consent. ELEPHANT TALK shall guarantee that in any agreement it concludes with ELEPHANT TALK Customers the following provision will be included: 'In no circumstances, [X] shall use T-Mobile's name, trademarks, service marks or other intellectual property rights in public announcements, including but not limited to press releases, commercial articles (not being technical or business articles), brochures, advertisements public speeches and other promotional material.'

15.2 ELEPHANT TALK is allowed to market and sell its services to ELEPHANT TALK Customers under a brand name chosen by ELEPHANT TALK. However, ELEPHANT TALK shall not use any logos, names or other material that bears, is similar or refers to any intellectual property right of T-Mobile or T-Mobile competitors (meaning mobile network operators, mobile virtual network operators and enhanced service providers in The Netherlands) without prior written approval of T-Mobile.

15.3 When marketing its ELEPHANT TALK Wholesale Services in The Netherlands, ELEPHANT TALK shall refrain from using comparative advertising, in any form of media, in relation to T-Mobile's, including its Affiliate's, products and/or services.

15.4 ELEPHANT TALK will defend, indemnify and will hold T-Mobile harmless from and against any claim and costs assessed against T- Mobile by a third party alleging that the ELEPHANT TALK Wholesale Services, constitute an infringement of any third party's intellectual property rights in circumstances where the alleged infringement is attributable to ELEPHANT TALK and in no way the fault of T-Mobile or its Affiliated Company. If such a claim is valid, ELEPHANT TALK shall make the modifications needed to cease the infringement at its own expense as soon as possible. Such modifications will not have any impact on the functionality and costs of the provided Hosting Services. ELEPHANT TALK shall inform T-Mobile on any of such modifications as soon as possible.     15.5 T-Mobile shall retain all right, title and interest in and to the Hosting Services, including all intellectual property rights therein and any modifications or enhancements thereof.     15.6  T-Mobile hereby grants ELEPHANT TALK a fully paid-up, non-exclusive licence to use the Hosting Services for the purpose of ELEPHANT TALK in providing the ELEPHANT TALK Wholesale Services during the term of this Agreement without further consideration. This licence granted shall take effect on the date that the relevant Hosting Services is first used by or on behalf of ELEPHANT TALK to provide the ELEPHANT TALK Wholesale Services under this Agreement.   16.  SIM CARDS & CALLING CREDIT

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

16.1 ELEPHANT TALK shall order and purchase SIM cards.

16.2 In principle the *** will be of *** will remain the property of T-Mobile at all times.

16.3 T-Mobile shall retain at all times full ownership of its intellectual property rights vested in the software (including T-Moible's and its supplier related software and codes, but excluding typical ELEPHANT TALK's and/or other party's content) contained in the T-Mobile IMSI's.     16.4  Parties agree that they will re-discuss the provisioning of a ***, the implementation and associated costs of the *** shall be considered part of the Agreement and therefore shall not result in additional costs for ELEPHANT TALK provided that no *** are involved. ELEPHANT TALK shall retain at all times full ownership of its intellectual property rights vested in the software contained in the ***. .

16.5 T-Mobile has a strict policy with respect to the usage of *** (also known as *** ) and any other devices that ***). These *** are under no circumstances allowed on the T-Mobile Network. ELEPHANT TALK is aware of T-Mobile's position with respect to these *** and will refrain from using *** or from doing business with any party (including ELEPHANT TALK's Customers), who uses these *** to the T-Mobile Network. Furthermore, duplicating the *** or functionalities of the *** without the explicit prior written approval of T- Mobile is forbidden. ELEPHANT TALK will (contractually) inform the ELEPHANT TALK Customers that they will refrain from using *** or ***. T-Mobile herewith gives ELEPHANT TALK approval to *** once, only for the purpose of supplying *** as commonly known in the market at the moment of signing the Agreement, to ELEPHANT TALK Customers, only to be used by end users of ELEPHANT TALK Customers for normal end user purposes. Parties shall use their reasonable endeavors to co-operate in order to prevent and clarify any misuse of *** or use of ***. In the event that T-Mobile discovers such improper use or forbidden acts of ELEPHANT TALK Customers, Parties shall contact each other's fraud manager immediately, in order to stipulate details and take appropriate measures. In addition, ELEPHANT TALK shall do its best to stop these actions immediately on first request of T-Mobile. Should ELEPHANT TALK wilfully or negligently fail to comply with an T-Mobile request, ELEPHANT TALK shall bear full responsibility and indemnify T- Mobile for all damages and losses T-Mobile suffers resulting from actions as mentioned in this article by ELEPHANT TALK's Customers.   17.  DURATION OF THE AGREEMENT   17.1 This Agreement shall come into force on the Date of the Agreement, and shall, subject to article 18, remain in full force and effect for an initial period of *** from the Commercial Launch Date.

17.2 The Agreement may be terminated by both Parties with a notification period of *** before the end of the Initial Term of the Agreement. If no termination notice is provided, the Agreement will be automatically extended for consecutive *** periods until such time as *** termination notice is provided. At the end of *** Parties will negotiate in good faith regarding a possible extension of the Initial Term.

  Parties can mutually agree in writing to deviate from an automatic extension of *** by extending this Agreement for a longer period than ***.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

18.  TERMINATION OF AGREEMENT

18.1 In addition to the conditions of Article 17, this Agreement may be terminated as follows:

  a. by mutual agreement of the Parties; or

  b. by either Party, with immediate effect, if the other Party is in material breach of any provision of this Agreement and does not or is not capable of remedying such breach within a reasonable time and in any event within sixty (60) Business Days of receipt of a written notice to such effect. A material breach will, for the purpose of this Agreement, not include the event that ELEPHANT TALK fails to comply with its payments obligations under article 9.2.; or

  c. by T-Mobile, if ELEPHANT TALK fails to comply with its obligations under article 16.5 upon written notification thereof by T-Mobile, within a reasonable period of time following the respective notification date (but in no event later than forty-five (45) Business Days of receipt of a written notice to such effect); or,

  d. by T-Mobile, subject to *** . In the present situation ***; or

  e. by T-Mobile or its successors, ***.; or,

  f. by ELEPHANT TALK, subject to *** and this entity is at the time of signing of ***; or

  g.. by either Party, with immediate effect, if the other Party becomes bankrupt or insolvent  (or bankruptcy or insolvency is appropriately requested for) or is liquidated or dissolved other than for the purpose of a bona fide reconstruction or amalgamation, or if that other Party enters into any composition or arrangements with its creditors; or,

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  18.2  In case the number of frequencies or the use of the frequencies allocated to the T-Mobile Network is reduced pursuant to Regulatory Provisions the Parties shall renegotiate in good faith the commercial conditions of this Agreement in order to comply with Regulatory Provisions.     18.3 In the event that T-Mobile is in material breach and ELEPHANT TALK terminates the Agreement according to article 18.1.b, ***.

18.4 This Agreement will terminate immediately in the event that a final order made by the relevant governmental authority not granting, revoking or denying renewal of T-Mobile DCS 1800 or UMTS/HSDPA license or permission to operate the T-Mobile Network or any other license to operate the Hosting Services, takes effect, if such order will be beyond the reasonable control of T-Mobile.    19.  MODIFICATIONS

19.1 Any modifications and/or additions to this Agreement and/or the Appendices shall be valid only if made in writing and signed by duly authorized representatives of both Parties.

19.2 If a Party requests a modification of this Agreement because (a) a material change occurs in the laws and regulations governing telecommunications in the Netherlands, or (b) a material change (including enforcement action by any regulatory authority) occurs which affects or reasonably could affect the commercial and technical basis of this Agreement, Parties shall enter into good faith negotiations in order to determine if a modification of the Agreement is necessary and if so agree upon the way to implement the required changes in or modifications to this Agreement.

19.3 Parties agree that the Operational Manual can only be modified by T-Mobile's account manager upon consultation with ELEPHANT TALK's authorized account manager and with the subsequent written agreement of ELEPHANT TALK and T-Mobile.   20.  MISCELLANEOUS   20.1  Successors, Assigns   This Agreement and the rights and obligations specified herein shall be binding upon the Parties and their respective legal successors and neither Party shall sell, transfer or assign this Agreement or any part, interest, right or obligation hereunder except that a Party shall have the right to transfer or assign this Agreement in whole (but not in part) to an Affiliated Company provided that:

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

    a) such Affiliated Company expressly assumes, by written instrument, all of the obligations of the Party under this Agreement and thereby becomes a Party to this Agreement, and   b) such Affiliated Company has adequate financial strength, resources and experience in the reasonable opinion of the other Party (such opinion to be obtained in writing in advance of any assignment), to comply with its obligations under this Agreement. Such assignment shall not release the assigning Party of its obligations under article 11 of this Agreement.

No person other than a Party to this Agreement shall acquire any rights hereunder as a third-Party beneficiary or otherwise by virtue of this Agreement.

Both Parties will remain independent and competing companies, will develop their own market strategy, and will address the market and the subscribers directly and independently.   20.2  No Waiver   Failure by any Party at any time to require performance of any provisions of this Agreement shall in no manner affect its rights to enforce the same, and the waiver by any Party of any breach of any provision of this Agreement shall not be construed to be a waiver by such Party of any succeeding breach of such provision or waiver by such Party of any breach of any other provision hereof.    20.3  Severability   If any part of this Agreement or any Appendices hereto is held to be invalid or unenforceable according to Regulatory Provisions, this shall not invalidate any other provisions of this Agreement or the Appendices hereto. The Parties shall attempt through negotiations in good faith to replace any such provision of this Agreement or the Appendices so held to be invalid or unenforceable with a valid provision which comes as close to the original economic understanding and intention of the Parties as legally feasible. The same applies insofar as this Agreement and/or its Appendices prove to have a gap. In this case, the Parties shall endeavor to close the gap through negotiations conducted in good faith.   20.4  Entire Agreement   20.4.1 This Agreement and the documents referred to in it contain the whole Agreement between the Parties relating to the subject matter of this Agreement and supersede all previous agreements and understandings whether written or oral between the Parties.   20.4.2 Each Party acknowledges that in entering into this Agreement it shall not rely on any representation, warranty or other assurance except as set out in this Agreement.

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  20.5  Non-solicitation   Without the prior written consent of the other Party, a Party shall not at any time while this Agreement is in force and for a one-year period after termination of this Agreement either for itself or on behalf of any other company solicit, induce or cause any employee of the other Party or any Affiliated Company of this other Party who has been a representative of or employed by the other Party in connection with this Agreement to leave such employment. In case of violation of this article, the Party shall pay to the other Party an equivalent of eighteen (18) months gross salary of the respective employee.

20.6  Survival   Any provision of this Agreement which by its nature or implication (including in respect of any accrued rights and liabilities) is required to survive termination or expiry of this Agreement shall survive termination or expiry as aforesaid.   20.7  Notices     Any notice or other formal communication to be given or made under or in connection with this Agreement, if not stated otherwise explicitly in this Agreement and its Appendices, shall be in writing, signed by or on behalf of the Party giving it and sent by registered mail. All notice or other formal communication to be delivered under this Agreement shall be addressed to:    for ELEPHANT TALK: the CTO;   for T-Mobile: the Director Wholesale & Interconnect.

20.8  Expenses     Each Party shall bear its own costs and expenses including the fees of its professional advisors in relation to the preparation, execution and carrying into effect of this Agreement and all other documents related to it.

20.9  Representation   Neither Party may in any respect represent the other Party or enter into any agreement or other commitment on behalf of the other Party except as provided for in this Agreement or agreed by the Parties in writing.

The Agreement and conditions contained herein are only related to the Dutch market and can not be referred to in discussions or deals with other T-Mobile companies and/or Deutsche Telecom and their respective Affiliated Companies. Due to amongst others market and country difference, T-Mobile expressly states and ELEPHANT TALK agrees that this Agreement cannot and will not create any precedent for any existing or future discussions between ELEPHANT TALK and T-Mobile/Deutsche Telecom and their Affiliated Companies outside the Netherlands;

Source: PARETEUM CORP, 8-K, 10/1/2008





CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  21.  GOVERNING LAW   This Agreement shall be governed by and construed in all respects exclusively in accordance with the laws of the Netherlands.    22.  DISPUTE RESOLUTION   Any dispute, excluding invoice disputes as described in Appendix 7, controversy or claim arising out of or in connection with any aspect of this Agreement, or the breach, termination or invalidity thereof, shall:

  a. in first instance be referred to the authorized account manager of either Party. The account managers shall try to solve the dispute within ten (10) Business Days. If the dispute is not resolved within the latter period the appropriate managers of both account managers will seek for a resolution within ten (10) Business Days; and

  b. Thereafter, if the matter is not resolved, it shall be referred to the Chief Executive Officers of the Managing Boards of the Parties for a further period of ten (10) Business Days for resolution; and

Thereafter, if the matter remains unresolved, it shall exclusively be referred and finally settled by the competent court in The Hague within the jurisdiction of the Netherlands.

Source: PARETEUM CORP, 8-K, 10/1/2008





  CONFIDENTIAL TREATMENT REQUESTED WITH RESPECT TO CERTAIN PORTIONS HEREOF DENOTED WITH ***   Hosting Agreement between ELEPHANT TALK and T-Mobile, 18/9/2008

  23.  COUNTERPART

The Agreement is written in the English language in two (2) copies, each Party receiving one (1) duly signed copy. Both copies are authentic.

Signed in September 17, 2008

            For T-Mobile Netherlands B.V. /s/ Niek Jan van Damme Name: Mr. Niek Jan van Damme Title: Managing Director

  For Elephant Talk Communication Holding AG  /s/ Steven van der Velden Name: Mr. Steven van der Velden Title: CEO



                For T-Mobile Netherlands B.V. /s/ Hans van Leeuwen Name: Hans van Leeuwen Title: Financieel Directeur

    For Elephant Talk Communication Holding AG  /s/ Martin Zuurbier Name: Mr. Martin Zuurbier Title: CTO/COO

____________________________

Source: PARETEUM CORP, 8-K, 10/1/2008 
Question: Highlight the parts (if any) of this contract related to Liquidated Damages that should be reviewed by a lawyer. Details: Does the contract contain a clause that would award either party liquidated damages for breach or a fee upon the termination of a contract (termination fee)?
In case of violation of this article, the Party shall pay to the other Party an equivalent of eighteen (18) months gross salary of the respective employee.

Exhibit 10.26    CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS DOCUMENT. EACH SUCH PORTION,  WHICH HAS BEEN OMITTED HEREIN AND REPLACED WITH AN ASTERISK [*], HAS BEEN FILED SEPARATELY WITH THE  SECURITIES AND EXCHANGE COMMISSION.     PROMOTION AND DISTRIBUTION AGREEMENT     This Promotion and Distribution Agreement including all exhibits (collectively referred to as the Agreement), effective as of 1 August 2011 (the  Effective Date), is made by and between Whitesmoke Inc., with registered offices/principle place of business at 501 Silverside Road, Suite 105,  Wilmington DE 19809, USA, (Distributor), and Google Inc whose principle place of business is at 1600 Amphitheatre Parkway, Mountain View,  CA 94043, USA (Google).



   Bundle means the Distribution Products bundled with the Distributor App(s).     Chrome Browser means the machine-readable binary code version of the Google Chrome browser provided to Distributor in connection with  this Agreement, and any modifications or updates to it that Google may provide to Distributor.     Chrome Browser Installer means: (a) the machine-readable binary code version of the installer provided to Distributor in connection with this  Agreement that installs the Chrome Browser, and any modifications, updates or upgrades to it that Google may provide to Distributor; and (b) the  Chrome Browser Criteria Checker.     Chrome Use Event means an event that indicates an [* ] has occurred.     Chrome Server Communication means a communication that, as determined solely by Google, is sent for the purpose of indicating that an End  User: (a) is [* ] to the [* ]; and (b) has kept the [* ] open for a minimum of [* ] during a [* ] (whether during the [* ] or a [* ] of the Chrome  Browser).     Criteria Checker means a set of software routines (and any updates to them) provided to Distributor by Google, as part of a software library,  that check certain criteria (as determined by Google and modified by Google from time to time) to determine if the Chrome Browser or Google  Toolbar (as applicable) can be installed on an End User's operating system. Accordingly, Chrome Browser Criteria Checker means the Criteria  Checker provided by Google in respect of the Chrome Browser and Google Toolbar Criteria Checker means the Criteria Checker provided by  Google in respect of the Google Toolbar.     Distributor App(s) means the following application (and successor versions of such software): the trial version of the WhiteSmoke Writer  (currently called WhiteSmoke 2011) available on a worldwide basis, but for the avoidance of doubt shall not mean any other products of  Distributor, including without limitation the full paid version of Whitesmoke Writer or any version of Whitesmoke Translator software,  regardless of whether Whitesmoke Writer incorporates any translation functionality.     *Confidential treatment requested  Google Confidential

1. DEFINITIONS

1.1 In this Agreement unless expressly stated otherwise:

  - 1 -





   Distribution Products means:





   End User means an end user customer of Distributor who is located in the Territory.     EULA means the end user license agreement applicable to a Product, which end user license agreement may be updated or modified by Google in  its sole discretion from time to time.     False means a false response (or equivalent negative response) given by the Criteria Checker.     Google Program Guidelines means the policy and implementation guidelines applicable to the Products as updated by Google and provided to  Distributor from time to time.     Google Toolbar means the machine-readable binary code version of the Google toolbar for Internet Explorer provided to Distributor in  connection with this Agreement, and any modifications or updates to it that Google may provide to Distributor.     Google Toolbar Installer means: (a) the machine-readable binary code version of the installer provided to Distributor in connection with this  Agreement that installs the Google Toolbar, and any modifications, updates or upgrades to it that Google may provide to Distributor; and (b) the  Google Toolbar Criteria Checker.     Google Trademarks means all names, trade names, trademarks, and logos used by Google in connection with the Products.     Group Company means in relation to each of the parties:



   Install Completed occurs when an End User has completed the install process for a Bundle and the install completed screen is shown to the End  User in accordance with Exhibit B.



  (a) as at the Effective Date, the Google Toolbar Installer and the Chrome Browser Installer; and

  (b) if Distributor notifies Google at any time after the Effective Date that it wishes to bundle the full Google Toolbar and Google  provides its approval in writing (including email), the Google Toolbar; and

  (c) if Distributor notifies Google at any time after the Effective Date that it wishes to bundle the full Chrome Browser and Google  provides its approval in writing (including email), the Chrome Browser.

  (a) any parent company of that party; and

  (b) any corporate body of which that party directly or indirectly has control or which is directly or indirectly controlled by the same  person or group of persons as that party.

  - 2 -





  Intellectual Property Rights means all copyright, moral rights, patent rights, trade marks, design right, rights in or relating to databases, rights in  or relating to confidential information, rights in relation to domain names, and any other intellectual property rights (registered or unregistered)  throughout the world.     IPO means an initial public offering of all or any of the shares in Distributor or securities representing those shares for the purposes of being  publically traded or quoted on an investment exchange.     Maximum Distribution Commitment means [* ] , as may be increased by Google pursuant to Clause 4.2 (Maximum Distribution Commitment).     [ * ] means a [ * ] or [ * ] entered by the [ * ] into the [ * ] located at the [ * ] of the [ * ]. [ * ] do not include the events listed in Clause 3.9(c)(ii).     Products means the Google Toolbar, Google Toolbar Installer, Chrome Browser and Chrome Browser Installer.     [ * ] means the [ * ] received by a [ * ] that, as determined solely by [ * ]: (a) is [ * ] by a [ * ] obtained via a [ * ]; (b) is the next [ * ] that occurs  following a [ * ]; and (c) includes the [ * ]. [ * ] only include those [ * ] which meet the requirements set out in Clause 3.9(c)(iii).     [ * ] means a [ * ] received by [ * ] that, as determined solely by [ * ]: (a) is [ * ] by a [ * ] obtained via a [ * ]; (b) is sent for the [ * ] of indicating  that an [ * ]: (i) has opened [ * ] following installation of the [ * ], (ii) is [ * ] to the [ * ], and (iii) has [ * ] a [ * ] into the [ * ]; and (c) includes the  correct [ * ]. [ * ] only include those [ * ] which meet the requirements set out in Clause 3.9(c)(i).     Term means the earlier of: (a) the end of the two year period from the Effective Date to 31 July 2013; or (b) the last day of the calendar month  within which the Maximum Distribution Commitment is reached.     Territory means those countries listed in Exhibit A, excluding any territory or state prohibited under Clause 11.5.     True means a true response (or equivalent positive response) given by the Criteria Checker.





   *Confidential treatment requested  Google Confidential



1.2 In this Agreement, the words include and including will not limit the generality of any words preceding them.

2. LICENSE GRANTS AND RESTRICTIONS

2.1 Products License Grant. Subject to the terms and conditions of this Agreement, Google grants to Distributor a [* ] license during the  Term to: (a) bundle the Distribution Products, in machine-readable binary code format only, solely with Distributor App(s); (b) distribute  Bundles directly (or indirectly, subject to Clause 2.2 (Third Party Distribution)) to End Users in the Territory; (c) when indicated by the  applicable Criteria Checker and requested by the End User in accordance with clause 3.2 (Form of Distribution Offering), install the  Chrome Browser or the Google Toolbar (as applicable) on the End User's system using the Google Installers; and (d) reproduce (or have  reproduced by Third Party Distributors as defined in Clause 2.2 (Third Party Distribution)), the Distribution Products to the extent  necessary to exercise the rights granted in (a), (b) and (c).

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   *Confidential treatment requested  Google Confidential



2.2 Third Party Distribution. Distributor may distribute Bundles to third parties solely for redistribution of such Bundles by those third  parties directly to End Users (such third parties, Third Party Distributors); provided that: (a) in connection with any and all such  offers or distributions, Distributor shall, and shall ensure that each Third Party Distributor shall, distribute Bundles in a manner that is no  less protective of the Products and Google than the terms of this Agreement, and (b) Google in its sole discretion may direct Distributor  to cease distributing Bundles to any Third Party Distributor that in Google's sole discretion would either: (i) harm or devalue Google's  business, brand or name, or (ii) violate Google's privacy policy, and Distributor shall cause any such Third Party Distributor to cease  distribution of Bundles as soon as practicable but in no event longer than [ * ] following receipt of such request from Google. Distributor  shall ensure that no Third Party Distributor bundles anything in or with Bundles without Google's prior written approval, and if Google  grants its approval, Distributor shall provide Google with information about any such bundling arrangements at Google's request.

2.3 License Grant Restrictions. Distributor shall not, and shall not allow any third party to (except to the extent that such prohibitions are  not permitted by law): (a) disassemble, de-compile or otherwise reverse engineer the Products or otherwise attempt to learn the source  code or algorithms underlying the Products; (b) modify the Products, create derivative works from or based on the Products; (c) except as  expressly set out in this Agreement, provide, sell, license, distribute, lease, lend, or disclose the Products to any third party; (d) use the  Products for timeshare, service bureau, or other unauthorised purposes; or (e) exceed the scope of any license granted to Distributor  under this Agreement.

2.4 Trademark License and Use. Subject to the terms and conditions of this Agreement, Google grants to Distributor a limited, [ * ] license  during the Term to use the Google Trademarks, in accordance with Google's trademark usage guidelines, solely to market and promote the  Products consistent with this Agreement, provided that all use of the Google Trademarks shall be subject to Google's prior review and  advance written consent. All uses of the Google Trademarks, and all goodwill associated therewith, shall inure solely to the benefit of  Google.

2.5 Trademark Restrictions. Distributor shall not remove, modify, adapt, or prepare derivative works of any Google Trademarks or Google  copyright notices, or other Google proprietary rights notices.

2.6 Updated Versions of Distribution Products. Google may request that Distributor distribute the latest version of the Distribution Products.  Distributor shall begin such distribution within [ * ] following Google's request.

3. DISTRIBUTION AND OTHER OBLIGATIONS

3.1 Delivery. Google shall deliver the Distribution Products electronically to Distributor at a [ * ] following the Effective Date and prior to  Launch (as defined in Clause 3.4 (Launch)).

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  User to review such EULA via a hyperlink to such EULA: and (c) a button on which each End User may click indicating agreement to the  terms of such EULA. In the event that an End User does not affirmatively agree to install the Google Toolbar or Chrome Browser, by  clicking on the button to agree to the terms of the applicable EULA, then the Google Toolbar or Chrome Browser (as applicable) shall not  be installed on such End User's computer.



   *Confidential treatment requested  Google Confidential



3.2 Form of Distribution Offering. Distributor shall ensure that the form of any offering of the Products by Distributor, including the timing,  relative and absolute placement, visual presentation to End Users, initial launch of the Products (and any modifications to them) and the  presentation of any other applications or products offered with the Products, conforms to the Google Program Guidelines and to Exhibit B  of this Agreement. Except as set out in Clause 2 (Licence Grant and Restrictions) and except for End Users as expressly set out in this  Agreement, Distributor shall not offer or distribute the Products to any third party. If, during the Term, Exhibit B and the Google Program  Guidelines conflict, Exhibit B will take precedence with respect to the conflicting terms.

3.3 Guidelines for Applications. Distributor shall comply, and shall ensure that each Third Party Distributor complies, with the Guidelines for  Applications set out in Exhibit C.

3.4 Launch. Distributor shall begin distribution of Bundles in accordance with this Agreement (Launch) within [ * ] days following the  Effective Date (the date of such Launch, the Launch Date). Beginning on the Launch Date and continuing throughout the Term,  Distributor shall ensure that [ * ]Distributor App distributed by or on behalf of Distributor is bundled with the Distribution Products as  set out in this Agreement.

3.5 Exclusivity.

  (a) [ * ]

  (b) [ * ].

3.6 EULA. In connection with Distributor's distribution of the Products under this Agreement, and before the Google Toolbar or Chrome  Browser can be installed by an End User, Distributor shall provide each End User with: (a) a clear statement inviting the End User to agree  to the terms of the applicable EULA; (b) the opportunity for each End

3.7 Accurate Reproduction. Distributor agrees that in connection with its exercise of the right granted in Clause 2.1 (Products Licence Grant)  it shall accurately reproduce the Distribution Products and shall not: (a) modify any Product (including modify the Chrome Browser or  Google Toolbar configuration files or registry settings); or (b) insert into the Products any viruses, worms, date bombs, time bombs, or  other code that is specifically designed to cause the Products to cease operating, or to damage, interrupt, or interfere with any Products  or End User data.

3.8 [ * ]. During the Term and for a period of [ * ] following the expiration or termination of this Agreement, Distributor shall not, and shall not  engage any third party to: (a) restrict, modify, or reconfigure in any manner any of the Products that have been installed by End Users  (such End Users, Installed Base End Users) in connection with this Agreement; or (b) engage in activities that encourage Installed  Base End Users to modify, uninstall or reconfigure any or the Products.

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   *Confidential treatment requested  Google Confidential



3.9  Reporting.

  (a) By Distributor. During the Term, Distributor shall, on a [ * ] basis, no later than the [ * ] of the following [ * ], provide Google  with a report identifying, on a country-by-country basis, the total number of: (i) Bundles distributed; (ii) Installs Completed; (iii)  Google Toolbar offers presented to End Users; and (iv) Chrome Browser offers presented to End Users, in the preceding [ * ].

  (b) By Google. During the Term, Google shall on a [ * ] basis, provide Distributor with a report of the [ * ] of [ * ] and [ * ] in the  preceding [ * ] broken down on a [ * ] basis and by the [ * ] in Exhibit A.

  (c) Parameters. Distributor acknowledges, and shall cooperate with Google to [ * ] that:

  (i) [ * ]: (A) are determined on a [ * ] (B) are only [ * ]; (C) do not include [ * ] from computers on which another [ * ] of the  [ * ] is [ * ]; and (D) do not include use of the [ * ] in any [ * ] other than [ * ].

  (ii) [ * ] do not include: (A) [ * ] that has been [ * ], (B) [ * ] or [ * ] in any area other than in the [ * ], or (C) any other [ * ] of  the [ * ] designed to artificially [ * ].

  (iii) [ * ]: (A) are determined on a [ * ]; (B) are only [ * ]; (C) are not sent in response to [ * ] from computers on which  another [ * ] of the [ * ] is [ * ]; and (D) are sent only in response to [ * ] from computers that meet the [ * ] requirements  as determined by the [ * ].

  (d) Records and Audit Rights. Distributor will keep and maintain complete and accurate books, records, and accounts relating to  this Agreement. During the Term, and for a period of [ * ] thereafter, Google may audit Distributor's relevant records to confirm  Distributor's compliance with this Agreement. Google's auditor will only have access to those books and records of Distributor  which are reasonably necessary to confirm such compliance.

4. PAYMENT TERMS

4.1 Payments. Subject to Clause 4.2, during the Term on a [ * ] basis, Google shall pay to Distributor the applicable payment set out in Exhibit  A for each [ * ] and each [ * ] that occurred during the previous [ * ]. Google shall determine the [ * ] in respect of which each [ * ] and  [ * ] took [ * ] (using the relevant [ * ]). Notwithstanding the foregoing, in no event will the [ * ] of [ * ] by Google to Distributor for all  [ * ] and all [ * ] in respect of [ * ] (as set out in Exhibit A) exceed [ * ] ([ * ]) of the [ * ] to Distributor for such [ * ].

4.2 [ * ]. Notwithstanding anything to the contrary, in no event shall the [ * ] paid or payable to Distributor by Google pursuant to Clause 4.1  (Payments) exceed the [ * ]. Google shall have the right, at its sole option, to increase the [ * ] by providing written notice to Distributor  no later than [ * ] prior to the end of the Term. The foregoing sentence shall not relieve Google of any payment obligations that have  accrued prior to the achievement of the [ * ].

4.3 Payment Terms. All payments under this Agreement shall be made in [ * ] in the [ * ] following the [ * ] for which the payments are  applicable. The party receiving payment will be responsible for any bank charges assessed by the recipient's bank. In addition to other  rights and remedies Google may have, Google may offset any payment obligations to Distributor that Google may incur under this  Agreement against any product or service fees owed to Google and not yet paid by Distributor under any agreement between Distributor  and Google. Google may also withhold and offset against its payment obligations under this Agreement, or require Distributor to pay to  Google within [ * ] of any invoice, any amounts Google [ * ] overpaid to Distributor in prior periods.

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   *Confidential treatment requested  Google Confidential



4.4 Taxes. All payments under this Agreement are exclusive of taxes imposed by any governmental entity. Google shall pay any applicable  taxes imposed by governmental agencies with respect to the transactions under this Agreement other than taxes based upon  Distributor's income. Google shall promptly provide to Distributor a copy of an official tax receipt or other appropriate evidence of any  taxes imposed on payments made under this Agreement. When Distributor has the legal obligation to collect any applicable taxes, the  appropriate amount shall be invoiced to and paid by Google unless Google provides Distributor with a valid tax exemption certificate  authorised by the appropriate taxing authority.

4.5 Interest. Distributor may charge interest at the rate of [ * ] above the base rate of Barclays Bank PLC from time to time, from the due date  until the date of actual payment, whether before or after judgment, on any payment pursuant to this Clause 4 (Payment Terms) which is  overdue.

5. TERM AND TERMINATION

5.1 Term. This Agreement shall commence on the Effective Date and, unless earlier terminated as set out in this Agreement, shall continue  for the Term.

5.2 Termination for breach. A party may suspend performance and/or terminate this Agreement, with immediate effect, if the other party:

  (a) is in material breach of this Agreement where the breach is incapable of remedy; or

  (b) is in material breach of this Agreement where the breach is capable of remedy and fails to remedy that breach within thirty (30)  days after receiving written notice of such breach.

5.3 Termination for insolvency. A party may suspend performance and/or terminate this Agreement with immediate effect, if:

  (a) the other party enters into an arrangement or composition with or for the benefit of its creditors, goes into administration,  receivership or administrative receivership, is declared bankrupt or insolvent or is dissolved or otherwise ceases to carry on  business; or

  (b) any analogous event happens to the other party in any jurisdiction in which it is incorporated or resident or in which it carries on  business or has assets.

5.4 Change of Control. [ * ] may terminate this Agreement immediately upon written notice if there is a Change of Control of [ * ]. In this  Clause the term Control shall mean the possession by any person(s) directly or indirectly of the power to direct or cause the direction  of another person and Change of Control is to be construed accordingly. [ * ] expected to experience, or [ * ] is experiencing, such  Change of Control shall notify [ * ] in writing of this before or within [ * ] after the Change of Control. If [ * ] has not exercised its right of  termination under this Clause within [ * ] following the later of (i) the receipt of notice of [ * ] Change of Control or (ii) the Change of  Control event, that [ * ]. The parties acknowledge that as at the Effective Date, [ * ] may [ * ] its [ * ]. [ * ] agrees not to exercise its  termination right under this clause 5.4 if [ * ], provided that following [ * ]:

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   For the avoidance of doubt, if following [ * ] there is a transfer of shareholding or interests in Distributor to any existing or new  shareholder(s) which results in any person or persons subsequently gaining Control of Distributor, then Google may exercise its right to  terminate in accordance with this clause 5.4..



   *Confidential treatment requested  Google Confidential



  5.4.1. no one person Controls [ * ] (other than an[ * ] which is not a [ * ] of [ * ] (as determined by [ * ]in its sole discretion)); and

  5.4.2. no [ * ] of [ * ] (as determined by [ * ] in its sole discretion) holds a [ * ] or [ * ] in [ * ].

5.5 Additional Termination Rights. Google may terminate this Agreement immediately upon written notice to Distributor if: (a) Distributor  breaches Clause 2 (License Grants and Restrictions), Clause 3.6 (EULA), Clause 3.7 (Accurate Reproduction), or Clause 6 (Confidential  Information), (b) if Google believes, in good faith, that the Distributor has violated or caused Google to violate any Anti-Bribery Laws (as  defined in Clause 8.5) or that such a violation is reasonably likely to occur, or (c) Distributor is in material breach of this Agreement more  than [ * ] notwithstanding any cure of such breaches. Notwithstanding anything to the contrary, in the event that the government or  controlling body of any country or territory in which Bundles are distributed imposes any law, restriction or regulation that makes it illegal  to distribute the Products, or any portion of them, into such country or territory, or if any such law, restriction or regulation places a  substantial burden on Google, where substantial is measured with respect to Google's economic benefit under this Agreement, as  determined by Google in its reasonable and good faith judgment (such substantial burden, a Substantial Burden) then either party or  Google (in the case of a Substantial Burden) may require the suspension of all distributions of Bundles in such country or territory until  such time as such law, restriction or regulation is repealed, nullified or modified such that it is no longer illegal or a Substantial Burden (in  the case of Google), as applicable, for Bundles to be distributed in such country or territory (Special Suspension); provided, however,  that Distributor's obligations under Clause 3.5 (Exclusivity) shall not apply in respect of the relevant country or territory during any  period of Special Suspension. If a period of Special Suspension extends for more than [ * ] may then terminate this Agreement (in part) in  respect of the affected country or territory only, such termination to take effect upon written notice[ * ]. [ * ] will use its reasonable  endeavours to provide [ * ] with [ * ] (to the extent it is practicable to do so) of the [ * ] or [ * ] (which was commenced by [ * ]).

5.6 Effect of Termination. Upon expiration or termination of this Agreement: (a) all rights and licenses granted under this Agreement shall  immediately cease; (b) Distributor shall (and shall ensure that any Third Party Distributors shall) immediately stop reproducing the  Products and offering or distributing Bundles; (c) Distributor shall return or destroy (and a duly appointed officer of Distributor shall  certify to such destruction) all copies of the Products and any other Google Confidential Information in its possession; and (d) the fees  payable to Distributor shall immediately cease accruing and Google shall within [ * ] following such expiration or termination pay to  Distributor any undisputed amounts which have accrued from the time of the most recent payment to Distributor through the date of  termination or expiration of this Agreement. Clauses 5.6 (Effect of Termination), 6 (Confidential Information), 7 (Proprietary Rights), 9  (Limitation of Liability), 10 (Indemnification) and 11 (General) shall survive the termination or expiration of this Agreement.

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   *Confidential treatment requested  Google Confidential



6. CONFIDENTIAL INFORMATION

6.1 In this Agreement, Confidential Information means information disclosed by (or on behalf of) one party to the other party under this  Agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be  supposed to be confidential, including the terms and conditions (including the Exhibits) of this Agreement. It does not include  information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by  the recipient or that was lawfully given to the recipient by a third party.

6.2 The recipient of any Confidential Information shall not disclose that Confidential Information, except to Group Companies, employees  and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise  bound) to keep it confidential. The recipient shall ensure that those people and entities: (a) use such Confidential Information only to  exercise rights and fulfill obligations under this Agreement, and (b) keep such Confidential Information confidential. The recipient may  also disclose Confidential Information when required by law, or the regulation or rule of a major US stock exchange or the United States  Securities and Exchange Commission, after giving reasonable notice to the discloser, such notice to be sufficient to give the discloser: (i)  the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure (if applicable) and (ii)  (where any disclosure is necessary) time to consult on and approve the form and content of the relevant disclosure. The parties shall then  promptly discuss and agree in good faith on the form and content of the disclosure (each acting reasonably).

7. PROPRIETARY RIGHTS

7.1 Distributor acknowledges that Google and/or its licensors own all right, title and interest, including all Intellectual Property Rights in and  to the Products and the Google Trademarks and all modifications to them. Distributor has, and shall acquire, no rights in the foregoing  except those expressly granted by this Agreement. Google shall not be restricted from selling, licensing, modifying, or otherwise  distributing the Products and/or the Google Trademarks to any third party.

7.2 Google acknowledges that Distributor and/or its licensors own all right, title and interest, including all Intellectual Property Rights, in and  to the Distributor Apps and all [ * ] to [ * ]. Except as expressly set forth in this Agreement, Distributor shall not be [ * ]from [ * ], or  otherwise [ * ]the Distributor App(s) or other products of Distributor to [ * ].

8. WARRANTIES

8.1 Each party warrants to the other that it will use reasonable care and skill in complying with its obligations under this Agreement.  Distributor also represents and warrants that it will undertake commercially reasonable endeavours in good faith to comply with Google's  business partner due diligence process including providing requested information.

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   *Confidential treatment requested  Google Confidential



8.2 Google warrants that the Distribution Products will for a period of [ * ] from the date of their supply to Distributor be free from any defect  which has a materially adverse effect on their use or operation.

8.3 If any of the warranties in Clause 8.1 or 8.2 is breached by Google, Distributor must tell Google as soon as possible. Distributor must give  Google a reasonable time to fix the problem and (if necessary) to supply Distributor with a corrected or replacement version of the  Distribution Product or a way to work-around the problem that is not materially detrimental to Distributor, or to re-perform any relevant  services. This will be done without any additional charge to Distributor. If Google is able to do this within a reasonable time, Google will  have no other obligations or liability in relation to that breach.

8.4 Google will not be liable for breach of any of the warranties or other terms in this Agreement to the extent that the breach arises from:

  (a) use of the Products other than in accordance with normal operating procedures;

  (b) any alterations or maintenance to the Products done by anyone other than Google or someone authorised by Google;

  (c) any problem with a computer on which the Products are installed, or with any equipment connected to that computer or any  other software which is installed on that computer;

  (d) any abnormal or incorrect operating conditions; or

  (e) use of the Products in combination with any other hardware or software, unless this use has been approved by Google in  writing.

8.5 Distributor will comply with all applicable commercial and public anti-bribery laws, including, without limitation, the UK's Bribery Act  2010 and the U.S. Foreign Corrupt Practices Act of 1977 (Anti-Bribery Laws), which prohibit (amongst other things) corrupt offers of  anything of value, either directly or indirectly, to a government official to obtain or keep business. ''Government officials include any  government employee, candidate for public office, and employee of government-owned or government-controlled companies, public  international organisations, and political parties. Furthermore, Distributor will not make any facilitation payments, which are payments to  induce officials to perform routine functions they are otherwise obligated to perform.

8.6 No conditions, warranties or other terms apply to the Products, [ * ] or to any other goods or services supplied under this Agreement  unless expressly set out in this Agreement. Subject to Clause 9.1, no implied conditions, warranties or other terms apply (including any  implied terms as to satisfactory quality, fitness for purpose or conformance with description).

9. LIMITATION OF LIABILITY

9.1 Nothing in this Agreement shall exclude or limit either party's liability for:

  (a) death or personal injury resulting from the negligence of either party or their servants, agents or employees;

  (b) fraud or fraudulent misrepresentation;

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   In this Clause 9.4, Contract Year means a period of one year starting on the Effective Date or the relevant anniversary of the Effective  Date (as appropriate). If the amount referred to in (b) above cannot be calculated accurately at the time the relevant liability is to be  assessed (the Applicable Time), it shall be calculated on a pro-rata basis as X/Y x Z. Where:     X = the total sum paid and payable to the Distributor pursuant to Clause 4 in the relevant Contract Year prior to the Applicable Time;     Y = the number of days elapsed in the relevant Contract Year prior to the Applicable Time; and     Z = 365     *Confidential treatment requested  Google Confidential



  (c) breach of any implied condition as to title or quiet enjoyment; and

  (d) misuse of confidential information.

9.2 Nothing in this Agreement shall exclude or limit either party's liability under Clause 10 (Indemnities), or Distributor's liability under Clause  2 (License Grants and Restrictions), Clause 3.5 (Exclusivity), Clause 3.6 (End User License Agreement) and Clause 3.7 (Accurate  Reproduction) or Clause [ * ].

9.3 Subject to Clauses 9.1 and 9.2, neither party shall be liable under this Agreement (whether in contract, tort or otherwise) for any:

  (a) loss of anticipated savings;

  (b) loss of business opportunity (which for the avoidance of doubt shall not include loss of advertising revenue);

  (c) loss of or corruption of data;

  (d) loss or damage resulting from third party claims; or

  (e) indirect or consequential losses;
     suffered or incurred by the other party (whether or not such losses were within the contemplation of the parties at the date of this  Agreement).

9.4 Subject to Clauses 9.1 and 9.2, each party's total liability under or in connection with this Agreement (whether in contract, tort or  otherwise) arising in any Contract Year is limited to the greater of:

  (a) [ * ] Euros ([ * ] Euros); and

  (b) [ * ]% of the total payment due to the Distributor in the relevant Contract Year pursuant to Clause 4 (Payment Terms).

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   By Distributor.

   User claim arising out of or resulting from such End Users use of any Distributor App(s), including any actions or claims in product  liability, tort, contract or equity.     *Confidential treatment requested  Google Confidential



10. INDEMNIFICATION BY GOOGLE.

10.1 Google [ * ] and will indemnify Distributor against all liabilities, costs, damages and expenses (including settlement costs approved in  writing by Google and reasonable legal fees [ * ]) suffered or incurred by Distributor arising from any claim from a third party that any  Products or any Google Trademark infringe(s) any copyright, trade secret or trademark of such third party (an IP Claim), provided that  Distributor:

  (a) promptly notifies Google;

  (b) provides Google with reasonable information, assistance and cooperation in responding to and, where applicable, defending  such IP Claim; and

  (c) gives Google full control and sole authority over the defence and settlement of such IP Claim. Distributor may appoint its own  supervising counsel of its choice at its own expense.

10.2 Google will not have any obligations or liability under this Clause 10 in relation to any IP Claim arising from:

  (a) use of the Products or Google Trademarks in a modified form or in combination with materials not furnished by Google;

  (b) use of the Products or Google Trademarks other than in accordance with this Agreement; or

  (c) any content, information or data provided to Google by Distributor, End Users or any other third parties;

10.3 Google may (at its sole discretion) suspend Distributors distribution or use of the Products or the Google Trademarks which are alleged,  or believed by Google, to infringe any third party's Intellectual Property Rights, or modify such items to make them non-infringing. if any  suspension under this Clause continues for more than 30 days, Distributor may, at any time until use of the distribution or use of the  Products or the Google Trademarks is reinstated, terminate this Agreement immediately upon written notice. [ * ] will use reasonable  endeavours to [ * ] with [ * ] (to the extent it is practicable to do so) of the [ * ] or [ * ].

10.4 Distributor [ * ] and will indemnify Google against all liabilities, costs, damages and expenses (including settlement costs approved in  writing by Distributor and reasonable legal fees [ * ]) suffered or incurred by Google or any Google Group Company arising from: (a)  Distributor's improper (ie not in accordance with the requirements of this Agreement including the Exhibits) or unauthorised, replication,  packaging, marketing, distribution, or installation of the Products, including any breach of Clause 8.5 and any claims based on  representations, warranties, or misrepresentations made by Distributor, (b) any claim from a third party that the Distributor App(s)  infringe any third party copyright, trademark, or trade secret, or (c) any End

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   *Confidential treatment requested  Google Confidential



10.5 The indemnification obligations set out in Clause 10.4(b) shall exist only if Google: (a) promptly notifies Distributor of such claim, (b)  provides Distributor with reasonable information, assistance and cooperation in responding to and, where applicable, defending the  lawsuit or proceeding, and (c) gives Distributor full control and sole authority over the defense and settlement of such claim. Google may  join in defense with counsel of its choice at its own expense.

10.6 The foregoing Clauses 10.1 to 10.5 states the parties' entire liability and exclusive remedy with respect to infringement of a third party's  Intellectual Property Rights.

11. GENERAL

11.1 Publicity. Subject to clause 6 (Confidential Information), neither party may make any public statement regarding the relationship  contemplated by this Agreement without the other's prior written approval.

11.2 Notices. All notices of termination or breach must be in English, in writing, addressed to the other party's Legal Department and sent to  Distributor's address set out at the head of this Agreement or to [ * ] (as applicable) or such other address as either party has notified the  other in accordance with this Clause. All notices shall be deemed to have been given on receipt as verified by written or automated  receipt or electronic log (as applicable). All other notices must be in English, in writing, addressed to the other party's primary contact  and sent to their then current postal address or email address.

11.3 Assignment. [ * ] may [ * ]any of its rights or obligations under this Agreement without the prior written consent of [ * ]. For the  avoidance of doubt, a Change of Control shall be deemed an assignment hereunder unless [ * ] does not exercise its [ * ].

11.4 Force Majeure. Neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure  or delay is caused by any circumstances beyond its reasonable control.

11.5 Compliance with Export Laws. Distributor shall comply with all applicable export and re-export control laws and regulations (Export  Laws), which the parties agree include: (a) the Export Administration Regulations maintained by the U.S. Department of Commerce, (b)  trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and (c) the International  Traffic in Arms Regulations maintained by the U.S. Department of State. Unless Distributor obtains prior authorisation required by  applicable Export Laws, Distributor shall not export any Product to Cuba, Iran, North Korea, Sudan or Syria.

11.6 No Waiver. Failure or delay in exercising any right or remedy under this Agreement shall not constitute a waiver of such (or any other)  right or remedy.

11.7 Severability. The invalidity, illegality or unenforceability of any term (or part of a term) of this Agreement shall not affect the continuation  in force of the remainder of the term (if any) and this Agreement.

11.8 No Agency. Except as expressly stated otherwise, nothing in this Agreement shall create an agency, partnership or joint venture of any  kind between the parties.

11.9 No Third-Party Beneficiaries. Except as expressly stated otherwise, nothing in this Agreement shall create or confer any rights or other  benefits in favour of any person other than the parties to this Agreement.

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   Signed by the parties on the dates shown below.

   *Confidential treatment requested  Google Confidential



11.10 Governing Law. This Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts in  relation to any dispute (contractual or non-contractual) concerning this Agreement save that either party may apply to any court for an  injunction or other relief to protect its Intellectual Property Rights. If this Agreement is translated into any other language, if there is  conflict the English text will take precedence.

11.11 Counterparts. The parties may execute this agreement in counterparts, which taken together will constitute one instrument.

11.12 Entire Agreement. Subject to Clause 9.1, this Agreement sets out all terms agreed between the parties in relation to its subject matter and  supersedes all previous agreements between the parties relating to the same. In entering into this Agreement neither party has relied on  any statement, representation or warranty not expressly set out in this Agreement.

DISTRIBUTOR   GOOGLE INC        /[ * ]   /s/ [ * ]  By   By        [ * ]   [ * ]  Name   Name        [ * ]   [ * ]  Title   Title        [ * ]   [ * ]  Date   Date

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  EXHIBIT A     Payments

   *[ * ]     ** [ * ].     *Confidential treatment requested  Google Confidential



[ * ]     [ * ]       [ * ]   [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]     [ * ]     $ [ * ]  [ * ]**     [ * ]*     $ [ * ]

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  EXHIBIT B     Process Flow





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  Form of Offering     1 - WhiteSmoke Welcome Screen





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  2-Toolbar offer     lf [ * ] Criteria Checker has returned True

     *Confidential treatment requested



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  3-Chrome offer     If [ * ] Criteria Checker has not returned 'True AND [ * ] Criteria Checker has returned True

     *Confidential treatment requested



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  4 - Installation Progress

     Google Confidential



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  5 - Chrome First Launch     If Chrome has been installed

     Criteria Checker     During the Term, for each End User who installs the Distributor App, Distributor shall use the [ * ] Criteria Checker to determine if [ * ] can be  offered to such End User. If the [ * ] Criteria Checker returns True, Distributor shall offer the End User the opportunity to install the [ * ] in  conjunction with the Distributor App. If the [ * ] Criteria Checker returns False Distributor shall: a) not offer the End User the opportunity to install  the [ * ] and b) use the [ * ] Criteria Checker to determine whether the [ * ] can be offered to such End User. If the [ * ] Criteria Checker returns  True, Distributor shall offer the End User the opportunity to install the [ * ] in conjunction with the Distributor App. If the [ * ] Criteria Checker  returns False, Distributor shall not offer such End User the opportunity to install the [ * ]. Prior to Launch, Distributor shall obtain Google's  approval of the parameters Distributor uses to call the [ * ] Criteria Checker and [ * ] Criteria Checker     Chrome Browser Auto Launch.     Distributor shall ensure that the first launch of the Chrome Browser following installation of the Chrome Browser complies with each of the  following requirements (the Chrome Launch Requirements):     (a) The Chrome Browser shall auto-launch immediately prior to the launch of the Distributor App, no earlier and no later.     *Confidential treatment requested



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   (b) No advertisements, offers, or other communications shall appear between launch of a Distributor App and launch of the Chrome  Browser.     (c) Upon launch of the Chrome Browser, the Chrome Browser shall immediately appear on the End User's computer desktop exactly as  shown in this Exhibit B. Without limiting the preceding sentence, each of the following shall appear on the End User's desktop exactly as shown in  this Exhibit B: (i) the location and size of the Chrome Browser window and the Distributor App window, (ii) the z-order of the Distributor App and  the Chrome Browser, and (iii) the number and content of the tabs in the Chrome Browser (i.e., the Chrome Browser shall contain exactly two (2)  tabs, with the first tab set to google.com, and the second tab set to http://tools.google.com/chrome/intlfen-US/welcome.html (or such other url as  Google may specify). In no event shall the Chrome Browser window be minimized. Notwithstanding the foregoing, Distributor may modify the  content and design of the Distributor App window provided that Distributor complies with the other restrictions in this Agreement and obtains  Google's prior consent.     (d) The tabs in the Chrome Browser and the Omnibox shall be clearly visible to the End User as shown in this Exhibit B, regardless of the  resolution of the End User's monitor. In no event shall the tabs in the Chrome Browser or the Omnibox be hidden behind a Distributor App.     (e) Distributor shall implement (or, if implemented by Google, Distributor shall not modify) the six-month flag (i.e., the functionality that  prevents an End User from receiving more than one (1) offer for the Chrome Browser within any six (6)-month period) unless Google has provided  written confirmation (including by email) that the 6-months flag can be turned off. Note that this authorisation may be revoked at any time and  Distributor shall then include the 6 months flag again in future builds.



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  EXHIBIT C     Guidelines for Applications Bundled with Google Applications     Google has observed a significant increase in the number of reports of software that is engaging in deceptive, malicious and other annoying  practices that significantly diminish user perception and enjoyment of the internet. These practices include but are not limited to installing  software on computers without obtaining informed end user consent (the so-called drive-by download), inundating end users with  advertisements without adequate attribution or labeling, exposing users to pornographic material without obtaining informed end user consent,  obtaining or transmitting personal information about an end user without obtaining informed end user consent, and interfering with an end user's  ability to easily uninstall applications the end user does not wish to be on his or her computer.     Google does not wish to be associated with these types of practices. Accordingly, Google has developed the Guidelines set forth below to prevent  its trademark, other intellectual property, and services from being used in connection with these practices. Google believes that these Guidelines  are necessary to protect Google from any allegation that it has contributed to practices that might be viewed as unlawful or actionable; to preserve  the reputation of Google as a provider of trusted software and services in a manner that is beneficial and fair to users and other constituents; and  to stem the rising incidence of practices that harm users and diminish the perceived value and reliability of the internet, which are essential to  Google's business.     With this objective in mind, Google has established the following Guidelines to apply to customer Applications that are bundled with any Google  Application. Except to the extent Google has otherwise specifically agreed in writing, Google does not grant permission to, and you will not,  bundle any Application with a Google Application unless you ensure that any such Application specified in the agreement between you and  Google that incorporated these Guidelines complies with these Guidelines.     For the avoidance of doubt, by these Guidelines Google does not intend to, and does not, impose any restrictions on what you may do with any  Application that is not bundled with a Google Application, bundled with an Application that accesses Google services, or used to access Google  services; you remain free to sell any Application you wish (whether or not it complies with these Guidelines) so long as it is not bundled with a  Google Application, bundled with an Application that accesses Google services, or used to access Google services.     In these Guidelines: (a) you and your refer to the legal entity(ies) that has entered into the contract with Google into which these Guidelines  are incorporated, as well as any person or entity acting on your behalf; and (b) Application means any application, plug-in, helper, component or  other executable code that runs on a user's computer, examples of which include those that provide browser helper objects, instant messaging,  chat, email, data, file viewing, media playing, file sharing, games, internet navigation, search and other services.    Google Confidential



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   Google welcomes input about these Guidelines from you and from other interested parties, and is always willing to consider revisions as  appropriate to encourage innovation while protecting against deceptive, unfair and harmful practices. Accordingly, Google may update these  Guidelines, including the Attachments, from time to time as provided in Section 10 below.     If you have any questions about these Guidelines, please do not hesitate to discuss them with your Google account manager.     Google Confidential



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   1. General.     1.1 Approval and Ongoing Compliance. You may bundle Google Applications with Applications only to the extent permitted in the  signed written agreement into which these Guidelines have been incorporated. In such instance, you must ensure that your Application both (1)  has been approved by Google for the purpose of being bundled with Google Applications in writing in advance, and (2) complies at all times with  the requirements outlined herein. To obtain Google's approval for any Applications not expressly approved in your agreement, you must submit a  written request.     1.2 No Google Branding or Attribution. Your Application, and any related collateral material (including any Web pages promoting your  Application or from which your Application is made available), must not contain any Google branding, trademarks or attribution unless (and then  only to the extent) Google expressly consents otherwise in writing. In addition, queries entered into Applications may not resolve to a results page  that contains any Google branding, trademarks or attribution unless (and then only to the extent) Google expressly consents otherwise in writing.     2. Prohibited Content. You may not bundle any Google Application with an Application that: (a) contains any viruses, worms, trojan horses, or the  like; and (b) is distributed primarily for the purpose of (i) distributing pornographic, obscene, excessively profane, gambling-related, deceptive,  fraudulent or illegal content, or (ii) distributing content related to hacking or cracking.     3. Prohibited Behavior. You may not bundle any Google Application with an Application that engages in deceptive, unfair, harassing or otherwise  annoying practices. For example, the Application may not:







   Google Confidential



  (a) use, or permit an unaffiliated person to use, an end user's computer system for any purpose not understood and  affirmatively consented to by the end user (including, without limitation, for purposes of consuming bandwidth or  computer resources, sending email messages, launching denial of service attacks, accruing toll charges through a dialer  or obtaining personal information from an end user's computer such as login, password, account or other information  personal to the end user);

  (b) intentionally create or exploit any security vulnerabilities in end user computers;

  (c) trigger pop-ups, pop-unders, exit windows, or similar obstructive or intrusive functionality, that materially interfere with  an end user's Web navigation or browsing or the use of his or her computer;

  (d) repeatedly ask an end user to take, or try to deceive an end user into taking, an action that the end user has previously  declined to take (such as repeatedly asking an end user to change his or her home page or some other setting or  configuration);

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   4. Disclosure and Consent.     4.1 Disclosure and Consent before Installation. You may not bundle any Google Application with any Application unless you (and your  distribution and bundling partners, if applicable under the terms of the agreement between you and Google that incorporates these Guidelines)  design the installation of any such Application in a manner that ensures that it is installed by end users in a knowing and willful manner - e.g., no  drive-by' downloads or installs. By distribution partner we mean any third party who distributes your Application and by bundling partner  we mean any third party who installs your Application in combination with or alongside one or more other Applications. At a minimum, compliance  with this provision requires that, prior to installing your Application, you and any third party distributing or bundling your Application:









   4.2 Disclosure and Consent for Collection and Transmission of Personally Identifiable information. You may not bundle any Google  Application with any Application that (1) collects or transmits to any entity other than the end user personally identifiable information, or (2)  collects or transmits information related to a user's computer or Internet usage or activity in a manner that could collect or transmit such user's  personally identifiable information (such as through keystroke logging), unless prior to the first occurrence of any such collection or transmission  you:

   Google Confidential



  (e) redirect browser traffic away from valid DNS entries (except that your Application may direct unresolved URLs to an  alternative URL designated by you, provided that the page to which the end user resolves adequately informs the end  user that you and your Application are the source of that page);

  (f) interfere with the browser default search functionality (except that your Application may permit an end user to change  his or her default search engine with proper disclosure, consent and attribution as provided below); or

  (g) engage in activity that violates any applicable Jaw or regulation.

  (a) first, fully, accurately, clearly and conspicuously disclose to end users:

  (i) that they are installing an application,

  (ii) the name of the Application, identifying you as the entity responsible for it, and

  (iii) the principal and significant features and functionality of the Application; and

  (b) then, obtain the end user's affirmative consent to install the Application.

  (a) first, fully, accurately, clearly and conspicuously disclose:

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   4.3 Disclosure and Consent for Setting Changes. You may not bundle any Google Application with any Application that makes a  change to any operating system or Application data setting which will impact the user experience of other Applications (e.g., changing the  browser default home page or changing the default application for a file type, such as the default email, browser or media player application),  unless prior to making such change you:



   Notwithstanding the foregoing, (i) no disclosure and consent need be made for changes to operating system or Application data settings that  have only a minor impact on user experience, such as adding a small number of bookmarks to the browser menu or adding an item to a start menu,  and (ii) the disclosure and consent requirements of this Section 4.3 will not apply to those setting changes that may be made prior to sale to the  end user.     4.4 Method of Disclosure and Consent. In order to satisfy the requirements above, the disclosure of the items specified above (a) must be  provided in both (1) the End User License Agreement (EULA) or privacy policy (to the extent required by law or otherwise by industry custom)  and (2) separately from the EULA and/or privacy policy (e.g. in installation screens or message boxes, as the case may be), and (b) must be  designed so that it will be read by, adequately inform and evidence the consent of a typical Internet user. See Attachment 1 for sample disclosure  and consent implementations that would satisfy certain of the requirements above.     4.5 EULA and Privacy Policy. You may not bundle any Google Application with any Application unless it conforms, and is distributed  pursuant to a EULA that conforms, with all applicable laws and regulations. In addition, you and your Application must comply with the  agreements and representations you make with your end users in your EULA and privacy policy. Your privacy policy must be accessible from  your Application in an easily found location. If your Application collects or transmits any other information related to the user's use of his or her  computer, but not required to be disclosed and consented to pursuant to Section 4.2, then the collection and use of such other information must  be disclosed in your privacy policy.     Google Confidential



  (i) the type of information collected (described with specificity in the case of personally identifiable information),

  (ii) the method of collection (e.g. by registration, etc.), and

  (iii) the location of (i.e., a link to) the privacy policy that governs the collection, use and disclosure of the  information; and

  (b) then, obtain the end user's affirmative consent to such collection and/or transmission.

  (a) first, fully, accurately, clearly and conspicuously disclose the change in a manner that will explain the practical effect of  such change; and

  (b) then, obtain the end user's affirmative consent to make such change.

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   5. Transparency. Neither you nor any of your third party distribution or bundling partners may mislead end users or create end user confusion  with regard to the source or owner of an Application or any portion of its purpose, functionality or features. For example, all elements of your  Application that are visible to the end user must clearly identify their source through its branding and attribution, and that identification, whatever  form it takes, must correspond to the identification of your application in the menu that permits end users to remove programs. You must clearly  label advertisements provided by your Application (if any) as such and clearly identify your Application as the source of those advertisements. In  addition, if your Application modifies the operation or display of other applications or Web sites (other than Web sites that you own), then in  each instance you must clearly and conspicuously attribute the source of that modification to your Application (as distinct from the application or  Web site modified) in a manner that will inform a typical Internet user; provided that this requirement will not apply to modifications for which you  obtain disclosure and consent pursuant to Section 4.3. See Attachment 1 for examples of modifications that are clearly and conspicuously  disclosed to end users.     6. Deactivation. You may not bundle any Google Application with any Application that impairs an end user's ability to change any preferences or  settings set by the Application in accordance with the way that such preferences or settings ordinarily may be changed by the applicable  Application. Once disabled by an end user, your Application may not be re-enabled without an affirmative action by the end user to explicitly re- enable your application. Accordingly, no use, update, installation or re-enablement of a separate Application, and no code downloaded as a result  of browsing a Web site, may operate to re-enable your Application. Your Application must permit end users to uninstall it (in the customary place  the applicable operating system has designated for adding or removing programs, e.g., Add/Remove Programs control panel in Windows) in a  straightforward manner, without undue effort or skill. In addition, your Application, when running, must provide (in an easily found location) clear  and concise instructions on how it may be uninstalled. Once uninstalled, your Application must not leave behind any functionality or design  elements, and all setting changes made by the application, but not explicitly agreed to by the end user, should be reversed to the extent  practicable.     7. Bundling of Applications. In addition to the requirements set forth in the agreement between you and Google that incorporates these  Guidelines, in order for you to bundle any Application with a Google Application must satisfy each of the following requirements:





   Google Confidential



  (a) the end user is made aware of all of the Applications included in the bundle prior to any installation;

  (b) all such Applications included in the bundle or download comply with the provisions of Section 2 through 6 of these  Guidelines;

  (c) if Applications in a bundle in which you are participating are supported in part by revenue generated by advertising  displayed in another independent Application included in that bundle and the continued use of the Application is  conditioned on such other independent Application remaining installed and active on the end user's computer, the end  user must be made aware of that relationship; and

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   8. Information and Assistance. Subject to any confidentiality obligations owed to third parties, you must provide Google with such information as  Google may reasonably request about the distribution of those of your Applications that are bundled with any Google Application. For example,  we may ask you to share with us: (a) the means by and/or the locations from which your Applications are distributed; or (b) the identity of any  applications included in any of your bundling relationships (and the entities responsible for such applications). In addition, you must provide  such assistance as Google may reasonably request to investigate and stop potential violations of these Guidelines that may be connected to your  Application, including by way of using such number of identifiers and other tracking parameters as Google may reasonably request. This would  include providing Google with golden masters of any bundle or other distribution that includes your Application, or working with Google to  stop any entities that may be financially benefiting from your Application from engaging in any of these proscribed practices. You understand,  however, that Google has no obligation to provide support to end users of your Application. For the avoidance of doubt, these information and  assistance rights do not extend to any of your Applications that are not used to access Google services, bundled with a Google Application, or  bundled with an Application that accesses Google services.     9. Legal. You must maintain ownership and control of your Application at all times to the extent required to practically and legally enforce the  requirements of these guidelines. If you are seeking to permit a third party Application to be bundled with a Google Application, then you must  also obtain Google's written approval of that third party Application (in addition to the approval required for your Application). If Google  approves the third party Application, you are responsible for ensuring that such third party Application also complies with these Guidelines.  Special indemnity and other suspension and/or termination provisions may apply. These are addressed in your agreement with Google.     10. Updates.     10.1 General. As mentioned above, Google may update these Guidelines, including the Attachments, from time to time; provided,  however, that no updates will be effective until Google provides you with thirty (30) days' written notice thereof. Once you receive that notice (the  date on which you receive such notice, the Update Notice Date), you will be required to bring your Application into compliance within thirty (30)  days     Google Confidential



  (d) either (1) the bundle must provide for a master uninstaller that will enable the end user to uninstall every Application in  the bundle without undue effort or skill, or (2) if no master uninstaller is provided, the de-installation of any Application  may not be dependent or conditioned upon the de-installation of any other Application included in the bundle.

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  10.2 Extended Compliance Period. If, solely as a result of an updated requirement, one or more of your Applications no longer complies  with these Guidelines, as updated, and you are incapable of bringing such Application into compliance prior to the scheduled effective date of  such update (the Update Effective Date), you agree to provide Google with written notice thereof as soon as reasonably practicable, but in any  event no later than the Update Effective Date, identifying the Application and the reasons why it may not be brought into compliance prior to the  Update Effective Date, and providing such other detail as Google may reasonably request with respect thereto (consistent in any event with your  confidentiality obligations). Thereafter, the parties will consult, and you agree to will work, diligently and in good faith to develop and execute a  plan to bring such Application into compliance with these Guidelines, as updated, as soon as reasonably practicable, but in any event within  ninety (90) days of the Update Notice Date (the Maximum Compliance Period). You agree that you will provide Google with such information as  Google reasonably requests during this period to keep Google apprised of your progress in bringing your Application into compliance.  Notwithstanding the foregoing (but subject to the next sentence), in no event may a new requirement provided for in any update to these  Guidelines require you to take any action which would violate the terms of any agreement between you and any unaffiliated third party that is in  effect on the date that Google delivers notice of the proposed update. In any event, if you are unable to bring any Application into compliance  during the Maximum Compliance Period, Google may elect, by providing at least thirty (30) days prior written notice, to require you to cease  bundling either the specific non-conforming Application or those versions of the Application which are, or are distributed, in violation of the  Guidelines, as updated; it being understood that, at such time, you will be entitled to procure services from an alternative source for those  Applications (or versions thereof) with respect to which Google has exercised such election.     Google Confidential



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  Attachment 1     Prohibited Behavior and Content     The application may not impact the display of other applications unless you provide clear disclosure in each instance

    Google Confidential



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    Google Confidential



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  Disclosure and Consent     Clear and conspicuous disclosure is required prior to download or install: what it is, what it does, and how it will be displayed to the end user

     Disclosure and Consent     Describe type, method, and use of personal information, if applicable. Point user to privacy policy

    Google Confidential



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    Google Confidential



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  Branding & Attribution     The visible elements of the application should be easily identifiable to the end user

    Google Confidential



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  Implementation, Transparency and Deactivation     The Application must permit end users to uninstall it in the customary place the applicable operating system has designated for adding or  removing programs (e.g., Add/Remove Programs control panel in Windows) in a straightforward manner    Google Confidential



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    Google Confidential



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  Implementation, Transparency and Deactivation     The Application must contain (in an easily found location) clear and concise instructions on how it may be uninstalled

    Google Confidential



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  Bundling of Applications     When bundling, the end user must be made aware of all the applications included prior to installation.

    Google Confidential



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  Bundling of Applications     When bundling, the end user must be made aware of advertising revenue relationships to other applications, if the continued use of the primary  application is conditioned on the other applications being installed and active on the end user's computer

     Google Confidential



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Question: Highlight the parts (if any) of this contract related to Warranty Duration that should be reviewed by a lawyer. Details: What is the duration of any  warranty against defects or errors in technology, products, or services  provided under the contract?
Google warrants that the Distribution Products will for a period of [ * ] from the date of their supply to Distributor be free from any defect  which has a materially adverse effect on their use or operation.