instruction:
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.
question:
21

                                     EXHIBIT C                                  FORM OF SUBLICENSE

                                  [Form follows.]

                                         22

                                     EXHIBIT D                             FORM OF AGREEMENT FOR TRIAL

                                  [Form follows.]

                                         23

                                 FIRST AMENDMENT TO                                                                           DISTRIBUTOR AGREEMENT

     THIS FIRST AMENDMENT TO DISTRIBUTOR AGREEMENT (this Amendment) is made and entered into as of the 1st day of January, 1999, by and between Peregrine/Bridge Transfer Corporation, a Delaware corporation (Licensor), and NEON Systems, Inc., a Delaware corporation (Licensee).

RECITALS:

     Licensor and Licensee are parties to that certain Distributor Agreement dated as of January 1, 1996 (the Distributor Agreement).  Licensor and Licensee desire to amend the Distributor Agreement as set forth herein.

     NOW, THEREFORE, for and consideration of the mutual covenants of the parties set forth herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follow:

     1.   AMENDMENT OF DEFINITIONS.  Article 1 of the Distributor Agreement is hereby amended to add thereto the following:

     1.11 Annual Royalty Advance Requirement shall mean (i) $1,000,000 in           respect of Licensee's fiscal year beginning April 1, 1999, (ii)           $2,000,000 in respect of Licensee's fiscal year beginning April 1,           2000, (iii) $3,000,000 in respect of Licensee's fiscal year beginning           April 1, 2001, (iv) $4,000,000 in respect of Licensee's fiscal year           beginning April 1, 2002 and (v) $5,000,000 in respect of Licensee's           fiscal year beginning April 1, 2003.  In the event that the term           hereof extends beyond Licensee's fiscal year beginning April 1, 2003,           the amount of the Annual Royalty Advance shall increase by $1,000,000           for each such fiscal year thereafter.

     1.12 Royalty Advance shall have the meaning provided therefor in Section           3.2 hereof.

     1.13 Specified Royalty Percentage shall mean fifty percent (50%) for the           period from and including January 1, 1999 through and including March           31, 1994.  Thereafter, the term Specified Royalty Percentage shall           mean (i) fifty percent (50%) from and after the first day of each           quarter of each fiscal year of Licensee

          commencing with Licensee's fiscal year beginning April 1, 1999) until           such time, if any, during such quarter that the aggregate amount of           all Royalty Advances outstanding as of the first day of such quarter           (including the Royalty Advance payable on such first day) has been           credited against royalties earned hereunder (a Satisfaction Date),           and (ii) forty percent (40%) from and after a Satisfaction Date           through and including the last day of the fiscal quarter in which such           Satisfaction Date occurs.

     2.   AMENDMENT OF SECTIONS 3.1 AND 3.2.  Sections 3.1 and 3.2 of the Distributor Agreement are hereby amended to read in their entirety as follows:

          Section 3.1    ROYALTIES TO LICENSOR.

          (a)            Licensee shall pay to Licensor for each Licensed                          Product licensed to a Redistributor or a Customer a





                         royalty equal to the Specified Royalty Percentage of                          all revenues received (without deduction for value                          added tax, if any, but excluding any revenues for                          maintenance and support or upgrade services, which                          revenues are covered in paragraph (b) below) by                          Licensee under the Redistributor Agreement or                          Sublicense applicable to such Licensed Product.

          (b)            Licensee shall pay to Licensor for maintenance and                          support and upgrade services provided under the                          applicable Sublicense or other written maintenance and                          support agreement with or approved by Licensee for each                          of the Licensed Products a royalty equal to the                          Specified Royalty Percentage of all revenues received                          (without deduction for value added tax, if any) by                          Licensee from a Redistributor or Customer relating to                          maintenance and support services or services for                          Upgrades or upgrades of systems for such Licensed                          Products.

          Section 3.2    TERMS OF PAYMENT.  The royalties payable to Licensor           pursuant to Section 3.1 shall be payable in accordance with the           provisions of this Section 3.2.  On or before the first day of each           fiscal quarter of each fiscal year during the term hereof, commencing           with the Licensee's fiscal year which begins on April 1, 1999,           Licensee shall pay to Licensor, as an advance (a Royalty Advance) of           royalties anticipated to be paid hereunder during such fiscal year, an           amount equal to twenty-five percent (25%) of the Annual Royalty           Advance Requirement for such fiscal year.  The aggregate amount of           Royalty Advances outstanding from time to time shall be credited           against royalties payable hereunder pursuant to Section 3.1 as and           when such royalties are recognized as earned in accordance with           generally accepted accounting principles.  Royalty Advances made           hereunder shall be made in respect of royalties that may become           payable in respect of any and all Licensed Products and shall not           be deemed made in respect

                                          2

          of any particular Licensed Product.  With respect to any royalty           payments due hereunder from Licensee to Licensor in excess of the           amount of Royalty Advances made by Licensee from time to time           hereunder, such payments shall be payable on the later of (i) sixty           (60) days after the date of the applicable invoice to a Redistributor           or Customer, as the case may be, or (ii) five (5) business days           following Licensee's receipt of payment from a Redistributor or           Customer, as the case may be.  Any royalty payment that is not paid           when due will bear interest from the date such amount is due until the           date payment is made at a rate equal to ten percent (10%) per annum.            All royalty payments due to Licensor under this Agreement shall be           paid in U.S. Dollars.  Upon the expiration or any termination of this           Agreement, Licensor shall repay to Licensee the aggregate amount of           all Royalty Advances then outstanding.

     3.   AMENDMENT OF TERM.  Section 14.1 of the Distributor Agreement is hereby amended to read in its entirety as follows:

          Section 14.1   TERM.  This Agreement shall be effective           through and including March 31, 2004.  Upon the expiration           of such term, this Agreement will renew automatically for           successive terms of one (1) year each unless either party to           this Agreement delivers written notice of termination to the           other party to this Agreement at least sixty (60) days prior           to the end of the original or any renewal term.                 4.   AMENDMENT OF TERMINATION PROVISIONS.  The provisions of Section 14.2 are amended by deleting in its entirety subsection (b) thereof and by amending Section 14.2(a)(2) to read in its entirety as follows:

          (2)  Immediately upon written notice if the other party defaults in                the performance of any obligation under this Agreement, including                failure to promptly pay any amount due hereunder, and fails to                cure such default within thirty (30) days after delivery of                written notice specifying the default (with any termination as a                result of Licensee's failure to pay amounts due under this                Agreement resulting in acceleration of Licensee's obligation to                pay all sums accrued and payable to Licensor under this Agreement                as of the date of such termination).

     5.   AMENDMENT OF NATURE OF DISTRIBUTORSHIP.  Licensor and Licensee do hereby agree that this Amendment shall effect a change in the nature of the distributorship granted to Licensee pursuant to the Distributor Agreement from a non-exclusive to an exclusive distributorship (provided, however, that with respect to Licensor's Partitioned Database Facility product, Licensor also may license such product to International Business Machines Corporation for sublicensing and distribution).  Any and all references in the Distributor Agreement to the rights granted to Licensee as non-exclusive rights are hereby amended to provide that such rights are

                                          3

exclusive rights (including without limitation such references in Sections 2.1





(Use of Master Copy), 2.2 (Sublicensing) and 2.8 (Trademarks and Copyright).).

     6.   AMENDMENT OF SECTION 13.1.  The Distributor Agreement is hereby amended by adding the following sentence to the end of Section 13.1:

                     Notwithstanding the foregoing, the foregoing limitation on liability           shall not be applicable in respect of any liability of Licensor to           Licensee resulting from any misrepresentation in, or breach of, the           terms of Section 6.2 hereof or in respect of Licensor's obligation to           repay Royalty Advances pursuant to Section 3.2 hereof.

     7.   CHANGE OF ADDRESSES FOR NOTICE.  Section 15.2 of the Distributor Agreement is hereby amended by changing the address for notice to each of Licensor and Licensee to the following:

          14100 Southwest Freeway, Suite 500           Sugar Land, Texas 77478           Attn:   President

     8.   ADDITION OF RIGHT OF FIRST REFUSAL.  The Distributor Agreement is hereby amended by adding thereto a new Section 15.11 and a new Section 15.12, which shall read in their entirety as follows:                           Section 15.11  Right of First Refusal.  If, at any time or from           time to time during the term hereof, Licensor or any stockholder in           Licensor shall have received a bona fide offer from any person or           entity to sell, transfer or otherwise convey all or any stock in, or           assets of, Licensor which Licensor or such stockholder, as the case           may be (the Offeree), desires to accept, the Offeree shall first           give written notice (the Offering Notice) to Licensee of the           financial and other terms and conditions (the Terms and Conditions)           of such offer.  Licensee shall have the right and a first opportunity           to purchase, lease or otherwise acquire, as the case may be, all or           the applicable portion of such stock or assets (as specified in the           applicable Offering Notice) on the Terms and Conditions set forth in           the Offering Notice, such right to be exercised by notice in writing           to the Offeree within ninety (90) days after the giving of the           Offering Notice.  If Licensee shall have exercised such right, the           closing shall be held at the corporate offices of Licensee on the           closing date specified in the Offering Notice or the date that is           ninety (90) days after the date of Licensee's notice of its exercise           of such right, whichever is later.  If either party shall default           under this Section, the other party shall be entitled to specific           performance.  If Licensee shall fail to give notice of the exercise of           its right of first

                                          4

          refusal under this Section within such ninety (90) day period, or if           Licensee shall notify the Offeree within such ninety (90) day period           that Licensee has waived such right, then the Offeree shall have the           right to sell, transfer or convey all or the applicable portion of the           stock in, or assets of, Licensor (as specified in the Offering Notice)           pursuant to the terms of the specific offer described in the           applicable Offering Notice, but not otherwise.  If such sale, transfer           or conveyance is not consummated in accordance with the offer and the           Terms and Conditions specified in the applicable Offering Notice, the           rights of Licensee to an Offering Notice shall be reinstated.  No           exercise or waiver by Licensee of any of its rights hereunder shall           modify, abridge, impair or affect any of Licensee's rights under any           of the other terms or provisions of this Agreement.  Any sale,           transfer or other conveyance of all or any part of the stock in, or           assets of, Licensor in violation of this Section shall be null and           void.  Skunkware, Inc., a Delaware corporation and the sole           stockholder of Licensor (Skunkware), is joining in this Agreement           for the purpose of agreeing to the terms of this Section and Section           15.12.

               Section 15.12  OPTION TO PURCHASE.  Skunkware and Licensor hereby           grant to Licensee the exclusive and irrevocable right and option to           purchase (the Option), at Licensee's election, either (i) all of the           assets of Licensor or (ii) all of the issued and outstanding stock of           Licensor.  Such option shall be exercisable during a period (the           Option Period) commencing on and including the earlier of (i) the           date upon which Licensee shall have paid to Licensor, in any single           fiscal year of Licensee, royalty payments hereunder in the aggregate           amount of $10,000,000 or (ii) January 1, 2002, and ending upon the           expiration or sooner termination of this Agreement.  Licensee's           exercise of the Option is at its sole discretion.  Licensee may           exercise the Option by written notice to Licensor and Skunkware at any           time during the Option Period.  Upon any such exercise of the Option,           Licensee and Licensor or Skunkware (as the case may be) shall proceed           to diligently and in good faith negotiate and execute a definitive           purchase and sale agreement for Licensor's acquisition of all of the           assets of, or outstanding capital stock in, Licensor, as the case may           be.  In the event that Licensee and Licensor or Skunkware, as the case           may be, are unable to agree on any terms or conditions for such           acquisition, the same shall be submitted to arbitration in accordance           with the rules and procedures of the American Arbitration Association,           with the arbitrator(s) to be experienced in the mainframe software           industry.  Notwithstanding the foregoing provision for arbitration           concerning the terms of any purchase and sale agreement, and without





          limiting any other

                                          5

          conditions that may be included in any such purchase and sale           agreement, Licensee shall have no obligation to consummate the           acquisition of the assets of, or stock in, Licensor pursuant to its           exercise of the Option if Licensee's board of directors should           determine, in its sole discretion, that such acquisition would not be           accretive to the value of Licensee.  The definitive purchase and sale           agreement shall provide that License may pay the purchase price           thereunder in cash, in shares of its Common Stock or in some           combination thereof.  So long as the Option shall be in existence           (whether or not exercisable), Skunkware and Licensor agree that           Licensor will conduct its business in the ordinary course and will           not, without the prior written consent of Licensee, merge or           consolidated with any other entity, sell all or substantially all of           its assets, grant or permit to exist any lien or encumbrance on any           material portion of its assets, issue any securities to any person           other than Skunkware or engage in any other transaction or enter into           any other agreement other than in the ordinary course of business.            Skunkware further agrees that, so long as the Option shall be in           existence (whether or not exercisable), it shall be and remain the           sole Stockholder Licensor, and Licensor shall not issue to any other           person or entity any stock, warrants or similar rights to acquire           equity interests in Licensor.

     9.   MISCELLANEOUS.

                     (a)  Capitalized terms used in this Amendment that are not defined herein shall have the meanings provided therefor in the Distributor Agreement.

          (b)  The captions used for the Sections in this Amendment are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or the intent of this Amendment or any Section hereof.

          (c)  This Amendment may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall be construed as a single instrument.

          (d)  In the event any provision of this Amendment is declared or adjudged to be unenforceable or unlawful by any court, then such unenforceable or unlawful provision shall be excised herefrom, and the remainder of this Amendment, together with all rights and remedies granted thereby, shall continue and remain in full force and effect.

                                          6

          (e)  The Distributor Agreement, as amended by this Amendment, constitutes the entire agreement between the parties hereto with respect to the matters covered hereby and thereby.  All prior negotiations, representations and agreements with respect thereto not incorporated in this Amendment or the Distributor Agreement are hereby canceled.  As modified hereby, the Distributor Agreement shall continue in full force and effect and be binding upon the parties hereto and their respective successors and permitted assigns.  References to the Distributor Agreement after the date hereof shall mean the Distributor Agreement as amended pursuant to this Amendment.  The amendments to the Distributor Agreement effected by this Amendment shall be effective from and after the date hereof.

          (f)  This Amendment shall be governed by and construed under the law governing the Distributor Agreement.

             [The remainder of this page is intentionally left blank.]

7

                                                IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first set forth above.

                              PEREGRINE/BRIDGE TRANSFER                               CORPORATION

                              By: /s/ Joe Backer                                  ----------------------------                               Name: Joe Backer                                    --------------------------                               Title: CEO                                     -------------------------

                              NEON SYSTEMS, INC.

                              By: /s/ John S. Reiland                                  ----------------------------





                              Name: John S. Reiland                                    --------------------------                               Title: CFO                                      -------------------------

                                          8

                             JOINDER OF SKUNKWARE, INC.

     Skunkware, Inc., a Delaware corporation, hereby joins in that certain Distributor Agreement dated as of January 1, 1996, between Peregrine/Bridge Transfer Corporation (PBTC) and NEON Systems, Inc. (NEON), as amended by the First Amendment to Distributor Agreement dated as of November 19, 1998 by and between PBTC and NEON, such joinder being for purposes of acknowledging and agreeing to be bound by the terms of the Right of First Refusal set forth in Section 15.11 of the Distributor Agreement and the Option to Purchase set forth in Section 15.12 of the Distributor Agreement.  Skunkware hereby represents and warrants to NEON that Skunkware is the sole stockholder of PBTC.  Skunkware further agrees that its agreements set forth herein shall be binding on its successors and assigns and inure to the benefit of NEON's successors and assigns.

     Skunkware's address for any notice to it under the terms of the Distributor Agreement is as follows:  Skunkware, Inc., 14100 Southwest Freeway, Suite 500, Sugar Land, Texas  77478, Attn:  President.

     Executed as of the 1st day of January, 1999.

                                        SKUNKWARE, INC.

                                        By: /s/ Joe Backer                                            -------------------------                                         Name: Joe Backer                                              -----------------------                                         Title: CEO                                               ----------------------



66049:53214:DALLAS:277267.9

                                          9 
Question: Highlight the parts (if any) of this contract related to Revenue/Profit Sharing that should be reviewed by a lawyer. Details: Is one party required to share revenue or profit with the counterparty for any technology, goods, or services?
answer:
Licensee shall pay to Licensor for maintenance and                          support and upgrade services provided under the                          applicable Sublicense or other written maintenance and                          support agreement with or approved by Licensee for each                          of the Licensed Products a royalty equal to the                          Specified Royalty Percentage of all revenues received                          (without deduction for value added tax, if any) by                          Licensee from a Redistributor or Customer relating to                          maintenance and support services or services for                          Upgrades or upgrades of systems for such Licensed                          Products.


question:
Exhibit 10.4 Split-Dollar Endorsement Agreement

THIS AGREEMENT is made and entered into this 1st day of June, 2017 by and between Prudential Bank (hereinafter referred to as the Employer), located in Philadelphia, Pennsylvania and Jeffrey Hanuscin, (hereinafter referred to as the Employee), residing at 2406 Sanibel Circle, Palmyra, NJ 08065.

WHEREAS, the Employee has performed his duties in an efficient and capable manner; and

WHEREAS, the Employer is desirous of retaining the services of the Employee; and

WHEREAS, the Employer is desirous of assisting the Employee in obtaining life insurance on his own life; and

WHEREAS, the Employer has determined that this assistance can best be provided under a split-dollar arrangement; and

WHEREAS, the Employer and the Employee have applied for insurance policies issued by various insurance companies; and   WHEREAS, it is now understood and agreed that this split-dollar agreement is to be effective as of the date first listed above;

WHEREAS, it is now understood and agreed that this agreement shall supersede any previous split dollar agreements that are currently in place between the Employer and Employee.

NOW, THEREFORE, for value received and in consideration of the mutual covenants contained herein, the parties agree as follows:

ARTICLE I Definitions

For purposes of this Agreement, the following terms will have the meanings set forth below:

Base Salary means the Employee's total base salary as of each January 1st exclusive of special payments such as bonuses or commissions, but including any salary reductions made in accordance with Section 125 or 401(k) of the Code.

Cash Surrender Value of the Policies will mean the Cash Value of the Policies; plus any dividends and/or earnings added hereto; and less any Policy Loan Balance.

Cash Value of the Policies will mean the cash value as calculated according to the provisions of the Policies.

Current Loan Value of the Policies will mean the Loan Value of the Policies reduced by any outstanding Policy Loan Balance.

Loan Value of the Policies will mean the amount which with loan interest and Monthly Deductions for the Cost of Insurance, plus any applicable Surrender Charge, will equal the Cash Value of the Policies on the next loan interest due date.

Net Amount at Risk will mean the total face amount of the policies (including death benefit by rider if applicable) reduced by the Cash Value of the Policies.

Employer's Interest in the Policies is defined in Articles IV and V.

Policy or Policies refers to the life insurance contracts listed below:

Source: PRUDENTIAL BANCORP, INC., 8-K, 6/6/2017





Policy Number Carrier

39132041  Mass Mutual   755073   Midland National

However, a contract will be considered part of the Policy only to the extent the contract is approved and issued by the Carrier. The Employer is under no obligation to enter into a substitute contract for a contract that is not issued by the Carrier.

Policy Loan Balance at any time will mean policy loans outstanding plus interest accrued to date.

Insurer means the carrier of the Policy or Policies.

ARTICLE II Allocation of Gross Premium

The Employer will pay all premiums on the Policies when due, according to the Schedule of Premiums in the Policies.

ARTICLE III Rights in the Policies

The Employee will have the sole right to designate the beneficiary for the amount specified in Article IV of the death proceeds of the Policies. The Employer will have and may exercise, except as limited hereinafter, all ownership rights in the Policies. The Employer will not take any action in dealing with the Insurer that would impair any right or interest of the Employee in the Policies. The Employer will have the right to borrow from the Insurer, and to secure that loan by the Policies an amount which together with the unpaid interest accrued thereon, will at no time exceed the lesser of (a) the Employer's Interest in the Policies and (b) the Loan Value of the Policies. During the Employee's life time The Employer's Interest In The Policies will mean, at any time at which the value of such interest is to be determined under this Agreement, the Cash Value of the Policies at such time, reduced by any then outstanding Policy Loan Balance with respect to any loans made or charged automatically against the Policies by the Employer.

ARTICLE IV Rights to the Proceeds at Death

Upon the death of the Employee while this Agreement is in force, the Employee's beneficiary as named in the Beneficiary Designation Form on page 6 (or as it may be amended according to the terms set forth on page 6) for this Agreement will be entitled to receive from the Policy proceeds an amount equal to the lesser of: (a) (two (2) times the Employee's annualized base salary at the time of death as provided by the Employer's payroll department) plus $100,000, reduced by any amount payable under the Employer's group term life insurance plan, or (b) the Net Amount At Risk. The Employer shall be the beneficiary of the remaining death proceeds of the policy after the Employee's interest is determined. Within 60 days after the death of the Employee, the Employer will provide to the Insurer a written statement indicating the amount of each policy's proceeds the Employee's beneficiary is entitled to receive.

ARTICLE V Taxes

Any income or employment taxes due for a year on the value of current life insurance coverage provided to the Employee under this Agreement will be the responsibility of the Employee. To the extent that the value of current life insurance coverage is taxable income, it will be subject to withholding requirements and will be reported as income by the Employer to the IRS and state-taxing authorities on the Employee's W-2 Form or other IRS or state-required reporting form to the extent required by law.

2

Source: PRUDENTIAL BANCORP, INC., 8-K, 6/6/2017





ARTICLE VI Termination of Agreement

This Agreement may be terminated at any time while the Employee is living by written notice thereof by either the Employer or the Employee to the other; and, in any event, this Agreement will terminate upon termination of the Employee's employment. ARTICLE VII Plan Management

For purposes of the Employee Retirement Income Security Act of 1974, the Employer will be the Named Fiduciary and Plan Administrator of the split-dollar life insurance plan for which this Agreement is hereby designated the written plan instrument. The Employer's board of directors may authorize a person or group of persons to fulfill the responsibilities of the Employer as Plan Administrator. The Named Fiduciary or the Plan Administrator may employ others to render advice with regard to its responsibilities under this Plan. The Named Fiduciary may also allocate fiduciary responsibilities to others and may exercise any other powers necessary for the discharge of its duties to the extent not in conflict with the Employee Retirement Income Security Act of 1974.

ARTICLE VIII Claims Procedure

(1) Filing claims. Any insured, beneficiary or other individual (hereinafter Claimant) entitled to benefits under the Plan or under the Policies will file a Claim request with the Plan Administrator with respect to benefits under the Plan and with the Insurer, with respect to benefits under the Policies. The Plan Administrator will, upon written request of a Claimant, make available copies of any claim forms or instructions provided by the Insurer or advise the Claimant where such forms or instructions may be obtained.

(2) Notification to Claimant. If a claim request is wholly or partially denied, the Plan Administrator will furnish to the Claimant a notice of the decision within 90 days in writing and in a manner calculated to the understood by the Claimant, which notice will contain the following information: (a) The specific reason or reasons for the denial; (b) Specific reference to the pertinent Plan provisions upon which the denial is based; (c) A description of any additional material or information necessary for the Claimant to perfect the Claim and an explanation of why such material or information is necessary; and (d) An explanation of the Plan's claims review procedure describing the steps to be taken by a Claimant who wishes to submit his claim for review.

(3) Review Procedure. A Claimant or his authorized representative may with respect to any denied claim: (a) Request a review upon written application filed within 60 days after receipt by the Claimant of notice of the denial of his claim; (b) Review pertinent documents; and (c) Submit issues and comments in writing

Any request or submission will be in writing and will be directed to the Named Fiduciary (or his designee). The Named Fiduciary (or its designee) will have sole responsibility for the review of any denied claim and will take all steps appropriate in the light of its findings.

(4) Decision on Review. The Named Fiduciary (or its designee) will render a decision upon review of a denied claim within 60 days after receipt of a request for review. If special circumstances warrant additional time, the decision will be rendered as soon as possible, but not later than 120 days after receipt of request for review. Written notice of any such extension will be furnished to the Claimant prior to the commencement of the Extension. The decision on review will be in writing and will include specific reasons for the decision, written in a manner calculated to be understood by the Claimant, as well as specific references to the pertinent provisions of the Plan on which the decision is based. If the decision on review is not furnished to the Claimant within the time limits prescribed above, the claim will be deemed denied on review.

3

Source: PRUDENTIAL BANCORP, INC., 8-K, 6/6/2017





ARTICLE IX Satisfaction of Claim

The Employee rights and interests, and rights and interests of any person taking under or through him, will be completely satisfied upon compliance by the Employer with the provisions of the Agreement.

ARTICLE X Amendment and Assignment

This Agreement may be altered, amended or modified, including the addition of any extra policy provisions, by a written instrument signed by the Employer and the Employee. Either party may, subject to the limitations of Article IV, assign its interest and obligations under this Agreement, provided, however, that any assignment will be subject to the terms of this Agreement.

ARTICLE XI Possession of Policies

The Employer will keep possession of the Policies. The Employer agrees from time to time to make the policies available to the Employee or to the Insurer for the purpose of endorsing or filing any change of beneficiary on the Policies but the Policies will promptly be returned to the Employer.

ARTICLE XII Governing Law

This Agreement sets forth the entire Agreement of the parties hereto, and any and all prior agreements, to the extent inconsistent herewith, are hereby superseded. This Agreement will be governed by the laws of the State of Pennsylvania.

ARTICLE XIII Interpretation

Where appropriate in this Agreement, words used in the singular will include the plural and words used in the masculine will include the feminine.

IN WITNESS WHEREOF, the parties have hereunto set their hand, the Employer by its duly authorized officer, on the day and year first above written.



/s/Jeffrey Hanuscin   Employee       Prudential Bank   by: /s/Jack Rothkopf    Senior Vice President and Chief Financial Officer



4

Source: PRUDENTIAL BANCORP, INC., 8-K, 6/6/2017





Split Dollar Policy Endorsement Beneficiary Designation

Pursuant to the terms of the Prudential Bank Split Dollar Agreement dated as of June 1st, 2017, the undersigned Owner requests that the Policies referenced in the Agreement and issued by the Insurer provide for the following beneficiary designation and limited contract ownership rights to the Employee:

1. Upon the death of the Employee, proceeds shall be paid in one sum to the Owner, its successors or assigns, to the extent of its interest in the Policy as described in the Agreement. It is hereby provided that the Insurer may rely solely upon a statement from the Owner as to the amount of proceeds it is entitled to receive under this paragraph.

2. Any proceeds at the death of the Employee in excess of the amount paid under the provisions of the preceding paragraph shall be paid in one sum to the following beneficiaries designated by the Employee:     Primary Beneficiary, Relationship, Address     Contingent Beneficiary, Relationship, Address

The Contingent Beneficiary shall receive the benefit only if the Primary Beneficiary does not survive the Employee.

The exclusive right to change the beneficiary for the proceeds payable under this section 2, to elect any optional method of settlement for the proceeds paid under this section 2 that are available under the terms of the policy, and to assign all rights and interests granted under this section 2 are hereby granted to the Employee. The sole signature of the Employee shall be sufficient to exercise said rights.

The Owner retains all contract rights not granted to the Employee under this section 2.

3. It is agreed by the undersigned that this designation and limited assignment of rights shall be subject in all respects to the contractual terms of the Policy.

4. Any payment directed by the Owner under this endorsement shall be a full discharge of the Insurer, and such discharge shall be binding on all parties claiming any interest under the policy.

The undersigned for the Owner is signing in a representative capacity and warrants that he or she has the authority to bind the entity on whose behalf this document is being executed.

Signed at Philadelphia, PA this __________ day of ________________, 2017.

EMPLOYEE:

Signature: _______________________________________ Name: _____________________

OWNER: Prudential Bank

Signature: _______________________________________ Name: _____________________



5

Source: PRUDENTIAL BANCORP, INC., 8-K, 6/6/2017 
Question: Highlight the parts (if any) of this contract related to Third Party Beneficiary that should be reviewed by a lawyer. Details: Is there a non-contracting party who is a beneficiary to some or all of the clauses in the contract and therefore can enforce its rights against a contracting party?
answer:
Upon the death of the Employee while this Agreement is in force, the Employee's beneficiary as named in the Beneficiary Designation Form on page 6 (or as it may be amended according to the terms set forth on page 6) for this Agreement will be entitled to receive from the Policy proceeds an amount equal to the lesser of: (a) (two (2) times the Employee's annualized base salary at the time of death as provided by the Employer's payroll department) plus $100,000, reduced by any amount payable under the Employer's group term life insurance plan, or (b) the Net Amount At Risk.


question:
Exhibit 10.27

MARKETING AFFILIATE AGREEMENT

Between:

Birch First Global Investments Inc.

And

Mount Knowledge Holdings Inc.

Dated: May 8, 2014

1

Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





1.

2.

2.1

2.2

This Marketing Affiliate Agreement (the Agreement) is entered into this 8th day of May 2014, by and between BIRCH FIRST GLOBAL INVESTMENTS INC., a corporation incorporated in the U.S. Virgin Islands, with its main place of business located 9100 Havensight, Port of Sale, Ste. 15/16, St. Thomas, VI 0080 (referred to as Company) and MOUNT KNOWLEDGE HOLDINGS INC. and/or assigns, a corporation incorporated in the State of Nevada, with its main place of business located at 228 Park Avenue S. #56101 New York, NY 10003­1502 (referred to as Marketing Affiliate or MA).

WHEREAS, this Agreement is to set forth in a formal agreement the prior verbal understandings between the parties in place since December 31, 2012 pertaining to the business described hereinbelow; and

WHEREAS, Company, the owner of certain distribution rights to the Technology, technology and content as set forth in Exhibit A and related technical documentation (hereafter collectively referred to as Technology, wishes to contract for the marketing and/or support of the Technology, and MA wishes to market and/or support the Technology.

Accordingly, Company and MA agree as follows:

Effective Date and Term.

This agreement shall begin upon the date of its execution by MA and acceptance in writing by Company and shall remain in effect until the end of the current calendar year and shall be automatically renewed for successive one (1) year periods unless otherwise terminated according to the cancellation or termination provisions contained in paragraph 18 of this Agreement. Company and MA acknowledge that this Agreement is not a franchise as that term is defined under any and all applicable local, state and/or federal laws in U.S., as amended.

Grant of Rights.

General Rights. Subject to the terms and conditions of this Agreement, Company hereby grants to MA the right to advertise, market and sell to corporate users, government agencies and educational facilities (Clients) for their own internal language learning, soft skills and communication purposes only, and not for remarketing or redistribution, and not for use in a data center environment for multiple users Clients, unless otherwise agreed to by Company prior in writing, the Technology listed in Schedule A of this Agreement, and to sell and/or bundle Technology Maintenance for the Technology and to provide first line technical support and implementation services for the Technology in the territories listed in Schedule A of this Agreement, providing MA meets the criteria required for delivering services according to Schedule A.

Third Party Rights. Company and MA acknowledge that Company derives certain rights herein from third parties and that Company reserves the right to modify or amend this Agreement if mandated by such third parties.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





3.

3.1

3.2

3.3

3.4

3.5

3.6

Duties of MA.

Best Efforts. MA agrees to use its best efforts to market and license the Technology to Clients consistent with the terms of this Agreement.

License Agreement. MA shall execute a Company License Agreement/Client Registration Form with Clients and present that License Agreement/Client Registration Form to Company after each purchase of the Technology.

Upon the execution of this Agreement, Company shall provide copies of its end user license agreements to MA. MA shall promptly review such agreements and advise Company as to what revisions, if any, should be made to the end user license agreements for resale in the Territory set forth in Schedule A to ensure that the agreements comply with requirements of local law in the Territory, and that Company has protection concerning proprietary rights, warranty disclaimers and limitations of liability under such local and federal laws of the U.S.

For purposes of this Agreement, the Technology means the electronic access to programs, content and documentation, and Company's end user license agreement as it may be modified by Company for use in the Territory. The relationship between the corporate user and Company and/or its Affiliates shall be as specified in the applicable Company end user license agreement. Notwithstanding the foregoing, as between Company and MA, MA shall be responsible as defined for providing customer and technical support to end users in the Territory. MA will notify Company immediately in the event that it is unable to respond effectively to any end users' requests.

Copyrights and Trademarks. MA shall protect copyrights, tradenames, trademarks, service marks, trade secrets and other confidential proprietary rights and information of Company and its affiliates and report promptly any infringements or suspected infringements of which MA becomes aware and to cooperate fully with Company in its efforts to protect its copyrights, tradenames, trademarks, service marks, trade secrets and other confidential proprietary rights and information.

No Alternations. MA agrees not to remove or alter in any manner any copyright, trademark or other proprietary notices contained in the Technology.

Permits, Licenses and Compliance with Laws. MA shall be responsible and shall bear all costs for complying with local, state, provincial, federal, national, and international statutes, rules, regulations and ordinances of any kind which related to or affect MA's duties under this Agreement.

Product Support. MA agrees, when specified, to provide Clients with the support necessary to meet the reasonable needs and requirements for installation and operation of the Technology.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





3.7

3.8

3.9

(a) (b) (c) (d)

3.10

3.11

3.12

Sales Records. MA shall keep accurate records of the sales of the Technology and Maintenance, including Client Registration Cards and shall make these records available for review by a representative of Company within ten (10) business days following the end of each month.

Sales and Technical Training . MA shall attend initial marketing, application, and technical training as required and provided by Company; provided, however, that Company shall not require MA to market or support Technology according to a marketing plan or system prescribed in substantial part by Company. The MA will however, be responsible to display and explain in detail the methods by which they plan to achieve the assigned quotas.

Sales Reports. MA shall report periodically in writing, upon request to Company the status of the following:

Leads provided by Company Marketing activities in progress Sales forecasts Implementations in progress

MA shall appoint one of its employees to be responsible for such reporting and make the name of such employee available to Company.

Marketing Plan. MA shall submit an annual marketing plan to Company outlining, among other things, activities and staffing directed at attaining mutually agreed upon annual sales quotas. The Annual Quota is defined in Schedule A of this Agreement. The annual marketing plan shall be devised solely by MA and MA shall not be required to follow an operating plan, standard procedure, training manual, or its substantial equivalent, published by Company.

Business Practices. Company shall not specify the business practices of MA, nor regulate the manner in which MA shall operate its business, provided that MA (a) conducts business in a manner that reflects favorably at all times on the Technology sold and the good name, goodwill and reputation of Company and its affiliates; (b) avoid deceptive, misleading or unethical practices that are or might be detrimental to Company and/or its Affiliates, the Technology or the public, including but not limited to disparagement of Company or the Technology; (c) make no false or misleading representation with respect to Company or the Technology; and (d) make no representations with respect to Company or the Technology that are inconsistent with any applicable license agreement(s) for the Technology provided by Company, promotional materials and other literature distributed by Company pertaining specifically to the Technology, including all liability limitations and disclaimers contained in such materials.

Support and Service Centers. MA may be required to establish and maintain Support Services in the Territory set forth in Schedule A to provide marketing, sales and service support of the Technology licensed from Company.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





4.

4.1

4.2

(a)

(b)

(c)

(d)

(e)

4.3

4.4

4.5

5.

Duties of Company.

Commitment. So long as MA is not in default hereunder, Company agrees to provide Technology to MA in accordance with the terms and conditions of this Agreement.

Deliverables. Upon the request of MA, Company shall at prices or fees then in effect or mutually agreed upon by the parties:

Provide Technology to MA at the discounted prices shown in Schedule A, subject to Company's right to change its prices or fees pursuant to paragraph 13 of this Agreement.

Make available a reasonable marketing information, demonstrations and other sales/marketing aids available from Company relating to the Technology to MA shown in Schedule A.

Make available marketing training and support to MA relating to the Technology in Schedule A.

Make available technical training and support to MA relating to the Technology in Schedule A.

Make available updates of the Technology to MA as they may become available for distribution.

No Control. Company shall not require that MA be limited as to the type, quantity or quality of any product or service that MA sells or desires to sell.

No Resale Limitations. Unless otherwise stated in this Agreement, Company shall not require that MA be limited to the persons or accounts to which it may market, distribute or sublicense any product or service that MA sells or desires to sell, including without limitation, the Technology, within the Territory as defined in Schedule A of this Agreement.

No Procedures. Company shall not require procedures for which MA may deal with Clients however will require reasonable levels of satisfaction from the clients related to the services provided by the MA.

Annual Quota.

The Annual Quota for MA shall be defined in Schedule A of this Agreement. Company reserves the right to adjust or modify the Annual Quota upon renewal of this Agreement or from time to time by mutual agreement of the parties.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





6.

7.

7.1

7.2

7.3

7.4

7.5

7.6

8.

8.1

8.2

Territory.

The Territory for MA shall be defined in Schedule A of this Agreement. Company reserves the right to adjust or modify the Territory upon renewal of this Agreement or from time to time by mutual agreement of the parties.

Payment and Deliveries.

Payment Terms. When fees are not collected directly from the corporate user, MA agrees to pay Company, in the manner and at the time specified below, the fee(s) on Company's current price list in effect at the time an order is received by Company as set forth in Schedule A.

Currency. All monies due Company shall be remitted in United States dollars. Amounts due to Company are to be calculated based upon the information contained in Schedule A of this agreement.

Required Documents. MA shall make payment for all Technology according to the terms in Schedule A of this Agreement, and provide upon resale of any part of the Technology, two (2) signed copies of the Company License Agreement/Client Registration Card between Company and Client.

Payment for Services, Training and Support. Services, training and support, when applicable and provided by Company, shall be paid for by MA according to agreed upon terms, and a monthly billing report will be created for MA by Company to show utilization of time and charges. A LATE PAYMENT CHARGE of one and one-half percent (1 ½%) or the maximum rate permitted by applicable law, whichever is less, of the outstanding balance due to Company per month will be imposed on all overdue accounts.

Shipment and Delivery. Any materials shall be shipped FOB Company's place of business as set forth in Schedule A, and MA shall be responsible for any excise, sales and other taxes which may be levied on the license and shipment of such materials.

Delays. In the event of any cause beyond the control of Company, Company shall not be liable for any delay in shipment or non-delivery of the Technology covered under this Agreement beyond any amounts received with an order.

Modifications and Version Upgrades.

Company shall supply MA access to all major published modifications or upgrades to the Technology, which add enhancements to or correct known errors in the Technology.

Company shall provide Technology access to MA for each licensed customer so long as MA is not in default with any terms of this Agreement.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





8.3

8.4

9.

10.

MA shall notify Company in writing of any errors found by it in the Technology within thirty (30) days of such discovery.

Company will undertake all reasonable efforts to provide technical assistance to MA under this Agreement when MA is unable to resolve certain technical issues and to rectify or provide solutions to problems where the Technology does not function as described in the Technology documentation, but Company does not guarantee that the problems will be solved or that any item will be error-free. This product support commitment is only applicable to Company's Technology running under the certified environments specified in the release notes of the end user licensing agreement for that Technology or Package. Company may from time to time, however, discontinue Technology or versions and stop supporting Technology or versions one year after discontinuance, or otherwise discontinue any support service. Company is not liable for incidental, special or consequential damages for any reason (including loss of data or other business or property damage), even if foreseeable or if MA or Customer has advised of such a claim. Company's liability shall not exceed the fees that MA has paid under this Agreement. MA agrees that the pricing for the services would be substantially higher but for these limitations.

Trademarks and Service Marks.

Any tradenames, trademarks or service marks, which Company may obtain with regard to the Technology, are the sole property of Company and/or its Affiliates. Company hereby grants MA, during the term of this Agreement, the right to use Company and/or Company trade names, trademarks or service marks on Technology or in advertising or promotion relating directly to these products. Any use of such tradenames, trademarks or service marks must reference that these tradenames, trademarks or service marks are proprietary to Company and/or its Affiliates.

Title to the Technology.

MA acknowledges that MA and its Clients receive no title to the Technology contained on the Technology. Title to the Technology and all copyrights in Technology shall remain with Company and/or its Affiliates.

Company agrees to defend or, at its option, settle any claim or action against MA to the extent arising from a third party claim that a permitted use of the Technology by the end users infringes any U.S. patent or copyright, provided Company has control of such defense or settlement negotiations and MA gives Company prompt notice of any such claim and provides reasonable assistance in its defense. In the event of such a claim of infringement, Company, at its option, may provide MA with substitute Technology reasonably satisfactory to MA to replace those affected Technologies then in MA's inventory. Company will not be liable under this Section if the infringement arises out of MA's activities after Company has notified MA that Company believes in good faith that MA's activities will result in such infringement. The foregoing states the entire liability of Company with respect to infringement of intellectual property rights.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





11.

12.

12.1

12.2

12.3

13.

14.

Distribution by MA.

MA agrees to distribute Technology only through the Company License Agreement/Client Registration Card between the Client and Company. MA acknowledges that the Company License Agreement/ Client Registration Card specifies the terms under which a Client receives, holds and uses the Package or Service.

Trade Secrets and Source Code.

MA recognizes that the Technology in source form (code or listing) is the exclusive property of Company and/or its Affiliates and is proprietary to and the trade secret of Company and/or its Affiliates. MA agrees that it shall not, by itself or in association with any other party, reproduce, duplicate, copy, decompile, disassemble or reverse engineer the Technology in source form (code or listing) in any media.

MA shall further hold in confidence and shall not disclose any information, algorithms, methods, designs, specifications, and/or know-how in any way relating to the Technology in source form (code or listing) to any other person, firm or corporation whether during the term of this Agreement or after such Agreement has been terminated.

MA shall not have the right to modify the source code to make adaptations to the Technology in conjunction with the sale of the Technology without the written consent of Company. In the event of modified source code, only the modified portion of the code becomes the property of MA, and MA shall treat the modified source code with the same care as with Company source code.

Price Changes and Notification.

Company reserves the right to change its process and/or fees, from time to time, in its sole and absolute discretion. In the event of a price and/or fee change for Technology, Company shall notify MA in writing ninety (90) days prior to the effective date of any such change. All other prices and/or fees may be adjusted without prior notice to MA.

Relationship of the Parties.

MA shall be deemed to be an independent contractor in its relationship with Company. MA shall not hold itself out as an employee or agent of Company other than for the limited purposes of marketing the Technology. No debts or obligations shall be incurred by either party in the other party's name, including execution of the Client Registration Agreements. MA shall have the right to perform certain services for its Clients, such as training, installation and non-contract support and bill its Clients directly for such services. MA specifically understand and agrees that it shall not be treated as an employee with respect to such services as are performed for any applicable tax purposes; and it is further agreed that this Agreement shall not bring MA under the provisions of any local, state, provincial, federal, national, and international regulation wherein coverage thereunder is based upon the relationship of employer and employee.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





15.

16.

16.1

16.2

16.3

16.4

16.5

Unauthorized Use.

MA shall notify Company promptly of any misuse of unauthorized use of the Technology, which comes to the attention of MA, and shall notify its Clients upon the request of Company when Company believes such Technology are being misused. MA shall cooperate, at Company's reasonable expense, with Company in any action, including any legal action, which Company may feel is necessary in order to protect the Technology.

Warranties by Company.

EXCEPT AS EXCLUSIVELY SET FORTH IN THIS PARAGRAPH, COMPANY DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT RESTRICTED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE HEREBY DISCLAIMED.

COMPANY'S SOLE AND EXCLUSIVE LIABILITY FOR THE WARRANTY PROVIDED IN SUBPARAGRAH (A) HEREOF SHALL BE TO CORRECT THE TECHNOLOGY TO OPERATE IN SUBSTANTIAL ACCORDANCE WITH ITS THEN CURRENT SPECIFICATIONS OR REPLACE, AT ITS OPTION, THE TECHNOLOGY NOT IN COMPLIANCE WITH COMPANY'S AND COMPANY' PUBLISHED SPECIFICATIONS REGARDING THE TECHNOLOGY; PROVIDED, ANY CLAIM FOR BREACH OF WARRANTY UNDER SUBPARAGRAPH (A) HEREOF MUST BE MADE IN WRITING WITHIN (90) DAYS FROM DATE OF SHIPMENT.

IN NO EVENT SHALL COMPANY BE LIABLE TO MA, ITS CLIENTS, OR ANY THIRD PARTY FOR ANY TORT OR CONTRACT DAMAGES OR INDIRECT, SPECIAL, GENERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR ANTICIPATED PROFITS AND LOSS OF GOODWILL, ARISING IN CONNECTION WITH THE USE (OR INABILITY TO USE) OR DISTRIBUTION OF THE TECHNOLOGY FOR ANY PURPOSE WHATSOEVER.

SOME STATES AND/OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS WIHICH MAY VARY FROM STATE TO STATE OR COUNTRY TO COUNTRY.

SOME STATES AND/OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





17.

18.

18.1

18.2

(a)

(b)

(c)

(d)

18.3

(a)

(b)

Warranties by MA.

MA agrees that any and all warranties made to Client shall be made only by MA. MA acknowledges and agrees that MA will make no representations to its Clients with respect to any warranty made by Company. MA hereby agrees to indemnify and hold Company harmless for any loss, damage, claim or action resulting from MA's failure to comply with any of MA's obligations under this Agreement. MA will be solely responsible for any claims, warranties or representations made by MA or MA's representatives or agents, which differ from the warranties, provided by Company in the applicable end user license agreement(s).   Termination.

This Agreement may be terminated by either party at the expiration of its term or any renewal term upon thirty (30) days written notice to the other party. Company acknowledges that this Agreement shall not be terminated for MA's failure to follow an operating plan, standard procedure, training manual, or substantial equivalent published in Paragraph 3 (k) of this Agreement, except that Company does reserve the right to terminate this Agreement for MA's failure to follow required procedures relating to the processing of sales contracts, invoices and billing related to Technology sold under this Agreement.

Either party may cancel this Agreement upon the occurrence of any of the following:

Material breach of any covenant, term, condition or other provisions of this Agreement, which breach is not remedied within ten (10) days after notice of such breach is received by the breaching party;

Bankruptcy, reorganization, arrangement or insolvency proceedings being instituted by or against a party;

An assignment by a party for the benefit of its creditors;

Consenting to the appointment of a trustee or receiver by a party, or a trustee or receiver being appointed for a party or for a substantial part of its assets.

Upon termination or cancellation of this Agreement for any reason:

All obligations of the non-breaching party, should cancellation be due to breach, shall immediately cease;

MA shall return any and all full and/or partial copies of material related to the Technology, including demonstrations of the Technology, in MA's possession or under its control to Company within ten (10) days following the termination or cancellation date of this Agreement;

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





(c)

(d)

(e)

(f)

(g)

19.

19.1

MA shall not continue to use or employ any part of the Technology as part of any product which MA shall convey, assign, lease, license or transfer to any third parties;

MA shall immediately cease advertising, marketing, promoting and distributing the Technology and shall cease using the trade names, trademarks, service marks and any other proprietary right of Company;

Except as otherwise permitted in writing by Company, MA shall immediately cease selling Annual Technology Maintenance and providing application and technical support for the Technology to Clients;

All outstanding invoices shall immediately become due and payable; and

MA acknowledges and agrees that, in the event of a breach or threatened breach by MA, of the provisions of this Section 18, no adequate remedy at law in money damages will be available to Company that will fairly compensate it and therefore Company will be entitled to an injunction against any such breach or threatened breach by MA.

Confidential Information.

Confidential Information Defined. Confidential Information includes: (a) the Technology (b) any personally identifiable data or information regarding any end user; (c) any and all information disclosed by Company to MA, in whatever format, that is either identified as or would reasonably be understood to be confidential and/or proprietary; (d) any notes, extracts, analyses or materials prepared by MA which are copies of or derivative works of Confidential Information or from which Confidential Information can be inferred or otherwise understood; and (e) the terms and conditions of this Agreement. Confidential Information does not include information received from Company that MA can clearly establish by written evidence: (x) is or becomes known to MA from a third party without an obligation to maintain its confidentiality; (y) is or becomes generally known to the public through no act or omission of MA; or (z) is independently developed by MA without the use of Confidential Information.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





19.2

19.3

20.

21.

22.

MA's Obligations. MA will make no use of Confidential Information for any purpose except as expressly authorized by this Agreement. Except as expressly provided in this Agreement, MA will not disclose Confidential Information to any third party and will protect and treat all Confidential Information with the same degree of care as it uses to protect its own confidential information of like importance, but in no event with less than reasonable care. Except as expressly provided in this Agreement, MA will not use, make or have made any copies of Confidential Information, in whole or in part, without the prior written authorization of Company. In the event that MA is required to disclose Confidential Information pursuant to law, MA will notify Company of the required disclosure with sufficient time for Company to seek relief, will cooperate with Company in taking appropriate protective measures, and will make such disclosure in a fashion that maximizes protection of the Confidential Information from further disclosure.

Privacy/Data Collection. MA will at all times during the term of this Agreement maintain appropriate technical and organizational measures to protect any end-user data that it collects, accesses or processes in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration. MA will act only on Company's instructions in relation to the collection, use, disclosure and processing of any such end-user data, but in all instances in accordance with all applicable laws, rules and regulations.

Non-assignment.

MA may not assign, sell, lease or otherwise transfer in whole or in party any of the rights granted pursuant to this Agreement without prior written approval of Company.

Amendment.

No amendment, change or variance from this Agreement shall be binding upon either party unless executed in writing and signed by an authorized representative of the party to be charged.

Severability and Construction.

Should any part of this Agreement, for any reason, be declared invalid by a court of competent jurisdiction, such determination shall be not affect the validity of any remaining portion, and such remaining portion shall remain in force and effect as if this Agreement had been executed with the invalid portion eliminated.

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Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





23.

24.

25.

26.

Notices.

Any notice required under this Agreement shall be deemed to have been given when hand- delivered or on the date of mailing when mailed by standard Mail, postage prepaid, and addressed to the party to receive such notice at the address designated below, or such other address as the party may from time to time direct in writing.

Governing Law; Attorney's Fee.

This Agreement is accepted by Company in the State of Nevada and shall be governed by and construed in accordance with the laws thereof, which laws shall prevail in the event of any conflict. For such limited purpose, MA hereby consents to the personal jurisdiction of any court of competent jurisdiction in the State of Nevada. If any legal action or proceeding is initiated, the prevailing party shall be entitled to all attorney fees, court costs, and expenses in addition to any other relief to which such prevailing party may be entitled.

Equitable Relief.

MA acknowledges that any breach or threatened breach of this Agreement involving an unauthorized use of Confidential Information or Company and/or its Affiliate's intellectual property will result in irreparable harm to Company and/or its Affiliate for which damages would not be an adequate remedy, and therefore, in addition to its rights and remedies otherwise available at law, Company and/or its Affiliate will be entitled to seek injunctive or other equitable relief, as appropriate, and MA hereby waives the right to require Company and/or its Affiliate to post a bond. If Company and/or its Affiliate seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement by MA involving an unauthorized use of Confidential Information or Company and/or its Affiliate intellectual property, MA agrees that it will not allege in any such proceeding that Company and/or its Affiliate remedy at law is adequate. If Company and/or its Affiliate seek any equitable remedies, it will not be precluded or prevented from seeking remedies at law, nor will Company and/or its Affiliate be deemed to have made an election of remedies.

Entire Agreement.

This Agreement contains the entire agreement between the parties, and no representations, statements or inducements, oral or written, not contained herein, shall be binding upon the parties. Company expressly disclaims the making of, and MA acknowledges that it has not received a warranty or guaranty, express or implied, as to the potential volume, profits or success of the business venture contemplated by this Agreement.

13

Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





COMPANY

BIRCH FIRST INVESTMENTS INC. A US Virgin Islands corporation

By: /s/ Pier S. Bjorklund Pier S. Bjorklund, President

This Agreement was executed as of the date set forth above.

MA

MOUNT KNOWLEDGE HOLDINGS INC. A Nevada corporation

By: /s/ James D. Beatty  James D. Beatty, CEO and President

14

Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





1.

Note 1:

Note 2:

Note 3:

Note 4:

Note 5:

Note 6:

2.

(a)

SCHEDULE A

MARKETING AFFILIATE Technology PRICING AND TERMS

Technology PRICING AND TERMS MATRIX.

MA PURCHASE

LEVEL1

MA QUOTA (UNITS OR

Dollars)2

MA PURCHASE

DISCOUNT3

III $1,000,001 and above 25%

II $100,001 to $1,000,000 20%

I $ 0 to $100,000 15%

PURCHASE LEVEL - refers to level of purchased Technology on an annual basis, subject to annual review of the past twelve months following the anniversary date of this Agreement.

PURCHASE QUOTA - refers to certain purchase amount levels in which MA may receive additional discounts, subject to additional terms and conditions.

PURCHASE DISCOUNT - refers to the applicable discount available to MA purchases made from Company at Levels II and III with Level I being the original purchase price per Unit (or Package) amount for the Technology which MA pays Company.

INITIAL ORDER COMMITMENT - MA commits to purchase a minimum of 100 Units in aggregate within the Territory within the first six months of term of this Agreement.

SALES PERSONS - MA shall at all times have certified sales persons trained by Company on staff in accordance with certain minimums defined by each Purchase Level.

SUPPORT PERSONS - MA shall at all times have certified support persons trained by Company on staff in accordance with certain minimums defined by each Purchase Level.

Technology DESCRIPTION AND PRICING.

The Products approved for sale in this Agreement shall be referred to as ECO related platform and content. (Technology) referred to as:

English Communications Online (ECO) ™

15

Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014





(a)

3.

4.

5.

(a)

List Pricing for Technology shall be as follows:

(Price List for products and or services)

SERVICE FEE.

Upon the execution of this Agreement, MA shall pay to Company a quarterly service fee (the Service Fee) in the amount equal to US $15,000.00 on the first day of each quarter for the Term of this Agreement as set forth in Section 1 hereinabove, for each month that MA has no sales pursuant to this Schedule A, with the first payment due and payable on the date of execution of this Agreement.

TERMS.

Unless otherwise approved by Company, Level I, II and III terms for payment to Company are Net 30 days on Technology licensed from Company.

TERRITORY.

MA is authorized to resell Technology within the following territory according to the terms of the Agreement:

Worldwide

16

Source: CYBERGY HOLDINGS, INC., 10-Q, 5/20/2014
Cc 
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?
answer:

COMPANY'S SOLE AND EXCLUSIVE LIABILITY FOR THE WARRANTY PROVIDED IN SUBPARAGRAH (A) HEREOF SHALL BE TO CORRECT THE TECHNOLOGY TO OPERATE IN SUBSTANTIAL ACCORDANCE WITH ITS THEN CURRENT SPECIFICATIONS OR REPLACE, AT ITS OPTION, THE TECHNOLOGY NOT IN COMPLIANCE WITH COMPANY'S AND COMPANY' PUBLISHED SPECIFICATIONS REGARDING THE TECHNOLOGY; PROVIDED, ANY CLAIM FOR BREACH OF WARRANTY UNDER SUBPARAGRAPH (A) HEREOF MUST BE MADE IN WRITING WITHIN (90) DAYS FROM DATE OF SHIPMENT.