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.
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Question: 1                                                                   EXHIBIT 10.17 [E.PIPHANY Logo]

                           OUTSOURCING AGREEMENT

This ASP and Outsourcing Agreement (Agreement) is entered into as of this 31 day of July, 2000 (Effective Date) by and between E.PIPHANY, INC., a Delaware corporation (E.piphany), whose principal place of business 1900 South Norfolk Street, Suite 310, San Mateo, California 94403 and HIGH SPEED NET SOLUTIONS, INC. (HSNS), whose principal place of business is 434 Fayetteville Street, St. Suite 2120, Raleigh, NC 27601.

1. LICENSE

1.1 OUTSOURCING LICENSE. Subject to the terms of this Agreement and Scope of Use and only within the Market and Territory, E.piphany grants HSNS a nonexclusive, nontransferable, non-sublicensable right to (i) use and combine the Application with the Outsourcing Application and other software products for the purpose of providing, to Outsourcing Customers, the services described in Exhibit B as the Outsourcing Services; and (ii) use the Documentation provided with the Application in support of the Application. Unless otherwise required by the Scope of Use, HSNS shall limit its use of the Application to the Designated System. HSNS shall ensure that at all times the Outsourcing Services contain only one (1) version of the Application regardless of the number of Outsourcing Customers and Outsourcing Customers access the Outsourcing Application and Outsourcing Services only through a customer interface. Under no circumstances shall HSNS permit an Outsourcing Customer or Outsourcing Customer User to have direct access to any Application Licensed hereunder.

1.2 DEVELOPMENT LICENSE. Subject to the terms and conditions of this Agreement and Scope of Use and only within the Market and Territory, E.piphany grants to HSNS a non-exclusive, non-transferable, non-sublicensable license during the term of this Agreement to install and use the Applications in object code format to develop the Outsourcing Application and Outsourcing Service and to install and use the Application in object code format to develop and provide maintenance and support for the Outsourcing Application to Outsourcing Customers, to demonstrate the Outsourcing Application to potential customers, and to train HSNS personnel on the use, maintenance and support of the Outsourcing Application.

1.3 COPIES. HSNS may make a reasonable number of copies (not more than five (5)) of the Application for archival purposes, and a reasonable number of copies of the Documentation as needed by HSNS solely for HSNS' internal use, provided all copyright and proprietary notices are reproduced. HSNS may make one (1) copy of the end user sections of the Documentation for each Outsourcing Customer. All titles, trademarks, copyright and restricted rights notices shall be reproduced in such copies. HSNS shall not use any Applications that E.piphany delivers with licensed Application, for which HSNS has not purchased a license.

1.4 LICENSE RESTRICTIONS. Except as expressly provided herein, HSNS shall not (i) rent, lease, loan, sell or otherwise distribute the Application, or any modification thereto, in whole or in part; (ii) cause or permit reverse engineering, reverse compilation, unauthorized access or assembly of all or any portion of the Application; (iii) allow any outsourcing or application service providers to access and use the Application as Outsourcing Customers, (iv) publish the results of Application performance benchmarks to any third party without E.piphany's express written consent; (v) export the Application in violation of U.S. Department of Commerce export administration regulations; and (vi) except as otherwise expressly allowed herein, permit any third party or unlicensed user or computer system to access or use the Application. HSNS agrees that it shall only provide the Application in combination with and included in Outsourcing Services HSNS acknowledges and agrees that the rights granted herein are solely to the English version of the Application. All rights not expressly granted hereunder are reserved to E.piphany.

2. HSNS OBLIGATIONS.

2.1 ANNUAL REPORTS. On the thirtieth (30th) day after the end of each of the first two years of this Agreement, HSNS shall submit to E.piphany a report (in a form provided by E.piphany and reasonably acceptable to HSNS) listing&bbsp;(i) the total number of emails distributed for Years 1 and 2 and (ii) the Application with which the Outsourcing Services are rendered. Year 2 and Year 3 Quarterly Payments, as defined in Exhibit A, shall be based upon these annual reports. All reporting and payment requirements under this Section shall be subject to the audit requirements of this Agreement.

2.2 PROFESSIONAL MANNER. HSNS agrees that, at all times and in every respect during the term of this Agreement, it shall conduct its business in a professional manner consistent with E.piphany's norms and standards, which shall reflect favorably upon E.piphany and the Application.

2.3. MARKETING ACTIVITIES. The parties agree to develop a co-branding plan within thirty (30) days of signing of the Agreement. The parties shall use reasonable efforts to take part in the other's success stories or other marketing programs as mutually agreed.

2.4. PROMOTION OF THE APPLICATION AND THE OUTSOURCING APPLICATION AND SERVICES. HSNS shall, at its own expense, promote the distribution of the Application and the Outsourcing Application and Services. Such promotion shall include, but not be limited to, advertising in trade publications, participating in appropriate trade shows and seminars, and directly soliciting orders for use of the Outsourcing Application and Outsourcing Services. HSNS shall distribute to all





HSNS sales offices marketing materials for the Application, which may be provided by E.piphany to HSNS or that may be created by HSNS, in which case they shall be subject to E.piphany approval, including any brochures describing the functional nature of the Application, its features, and advantages.

2.5. HSNS REPRESENTATIONS. HSNS shall make no representations concerning the functionality or performance characteristics of the Application, except as set forth in the printed Documentation or other materials furnished to HSNS by E.piphany. As appropriate, HSNS shall include references to E.piphany and the Application in all of its presentations and sales materials created during the term of this Agreement, which relate to the Application.

2.6. FORECASTING. HSNS shall meet with E.piphany on a quarterly basis at a mutually agreed to date and time to discuss non-binding forecasts. HSNS shall provide E.piphany with a non-binding, rolling six-month forecast report in advance of the quarterly meeting.

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2.7. UPDATES. HSNS agrees to provide E.piphany with notice of any changes in the Outsourcing Applications and Outsourcing Service.

2.9. SUPPORT TO CUSTOMERS. HSNS shall be the Outsourcing Customer interface and shall provide all direct communications and services to and from HSNS's Customers with respect to all support, maintenance and warranty services. E.piphany shall have no obligation to provide support, maintenance or warranty services to Outsourcing Customers.

2.10. TRAINING. HSNS shall take the training classes described on Exhibit C.

3. PAYMENT

3.1 FEES. HSNS shall pay E.piphany the fees specified in Exhibit A and generated by HSNS's use of the Application as specified in an applicable Annual Report.

3.2 PAYMENT TERMS. Except as provided in Section 2.1 above, and unless otherwise agreed and specified in Exhibit A, all amounts due and owing by HSNS shall be paid within thirty (30) days from the date of E.piphany's invoice. Overdue payments shall accrue a late payment charge at the lesser of one and one half percent (1 1/2%) per month or the maximum rate allowed under applicable law. All payments made hereunder are non-cancelable and non-refundable. All fees are payable in U.S. dollars and shall be payable to E.piphany, Inc. by company check, or via wire transfer to the following account: Silicon Valley Bank - Santa Clara, ABA: 121140399, Account: 3300109833, Money Market.

3.3 TAXES. HSNS is responsible for all taxes (including sales, use, property and value-added taxes), duties and customs fees concerning the Application and/or services, excluding taxes based on E.piphany's income.

3.4 AUDIT. HSNS shall maintain complete and accurate records of its activities under this Agreement for at least two (2) years following termination of this Agreement. HSNS agrees to allow E.piphany, directly or indirectly, to audit HSNS's business records as kept by HSNS in its normal course of business to ensure compliance with the terms and conditions of this Agreement. If the audit reveals that HSNS has failed to comply with the terms of this Agreement, in addition to all other remedies available to E.piphany at law or equity, HSNS shall immediately reimburse E.piphany for any unpaid amounts due and the cost of the audit.

4. WARRANTY

4.1 BY E.PIPHANY. E.piphany warrants that for a period of one (1) year from Effective Date, the Application as used within the scope of this Agreement will perform substantially in accordance with the functions described in the Documentation. E.piphany warrants the Application media is free from material defects in materials and workmanship under normal use for ninety (90) days from the applicable Order Form. E.piphany further warrants that its Maintenance, training and Professional Services will be rendered consistent with generally accepted industry standards for a period of ninety (90) days from performance of such services.

4.2 EXCLUSIVE REMEDIES. For any breach of the warranties contained in Section 4.1, HSNS's sole and exclusive remedy, and E.piphany's entire liability, shall be: (i) in the case of a nonconforming Application, to correct the nonconforming Application, provided that HSNS notifies E.piphany of the nonconformity within the warranty period and HSNS has installed all Updates and, if E.piphany is unable to do so, HSNS shall be entitled to terminate the Application license and recover the fees paid to E.piphany for such Application; (ii) in the case of defective media, to replace such defective media, provided that HSNS returns such defective media during the warranty period; (iii) in the case of infringing Application, the indemnity contained in Section 10.1 (E.piphany Intellectual Property Indemnify) and (iv) in the case of services to which the breach of warranty relate, the correction of defective work so as to comply with generally accepted industry standards. If E.piphany is unable to perform such services as warranted, HSNS shall be entitled to recover the fees paid to E.piphany for the unsatisfactory services. This limitation of liability applies notwithstanding any failure of the essential purpose of the exclusive remedies.

4.3 DISCLAIMER. THE WARRANTIES SET FORTH IN SECTION 4.1 ARE EXCLUSIVE AND IN LIEU OF AND E.PIPHANY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. E.PIPHANY DOES NOT WARRANT THAT THE APPLICATION WILL OPERATE IN COMBINATIONS OTHER THAN AS SPECIFIED IN THE DOCUMENTATION OR THAT THE





OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. PRE-PRODUCTION RELEASES OF APPLICATIONS OR COMPUTER-BASED TRAINING PRODUCTS ARE DISTRIBUTED AS-IS.

5. MAINTENANCE

5.1 FOR HSNS UNDER LICENSES. E.piphany will provide the Maintenance described below, provided HSNS remains a compliant subscriber to such Maintenance and has paid all monies due therefor. Upon reasonable notice, E.piphany reserves the right to modify the terms and conditions of Maintenance, provided that any such modification will not substantially diminish the level of Maintenance that HSNS is then currently receiving.

5.2 ERROR CORRECTION. E.piphany shall use reasonable efforts to provide workarounds for, and to correct reproducible programming errors in, the Application attributable to E.piphany with a level of effort commensurate with the severity of such errors and in accordance with the terms of Section 5.3 (Response Times). Upon identification of any programming error, HSNS shall notify E.piphany of such error and shall provide E.piphany with information sufficient to locate and duplicate the error.

5.3 RESPONSE TIMES. PRIORITY 1: Response in under fifteen (15) minutes for instances in which the Application is down (product is unusable resulting in total disruption of use or outage of the Application). PRIORITY 2: Response in under one (1) hour during technical support desk hours for a major feature or function failure, which results in the operation of the Application being restricted. PRIORITY 3: Response in under four (4) hours during technical support desk hours for a minor feature or function failure which results in the Application not working as described in the Documentation and with minor impact on usage. PRIORITY 4: Response in under eight (8) hours during technical support desk hours for a minor problem or feature request that does not impact usability of the Application. In each instance, E.piphany will, after the initial response, within a time frame mutually agreed upon by the parties, provide HSNS with an action plan for resolution, if possible, of the error. Priority 4 errors may, in E.piphany's

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discretion, be corrected by E.piphany in the next release of the Application.

5.4 SUPPORT. DESK. E.piphany allows for unlimited calls to its technical support desk by the HSNS personnel designated under Section 5.7 (HSNS Responsibilities.) The technical support desk hours of operation are from 7:00 a.m. until 6:00 p.m. Pacific Time, Monday through Friday except holidays. During the off hours, the technical support desk can be reached via pager, twenty four (24) hours a day for Priority 1 errors.

5.5 UPDATES. E.piphany will, from time to time, provide to HSNS all applicable Updates to the Application, that are commercially released by E.piphany during the term of this Agreement.

5.6 HSNS'S RESPONSIBILITIES. As a condition to the provision of workarounds and error corrections, HSNS will (i) appoint two (2) employees to serve as primary contacts between HSNS and E.piphany, and will ensure that HSNS's support inquiries are initiated and handled through these contacts; (ii) provide E.piphany with reasonable access to all necessary personnel to provide information regarding errors or problems reported by HSNS; and (iii) provide E.piphany with Remote Access, subject to HSNS's consent.

5.7 EXCLUSIONS. E.piphany shall not be required to provide workarounds or error corrections relating to problems resulting from (i) HSNS's failure to implement all Updates to the Application which are provided under this Agreement; (ii) any alterations of, or additions to, the Application performed by parties other than E.piphany; (iii) any previous or earlier versions of the Application except for the immediately prior version of the Application; (iv) any request for additional work not falling within the scope of E.piphany's Maintenance outlined in this Section 5; or (v) interconnection of the Application with hardware or Application products not supplied by E.piphany.

5.8 SECONDARY SUPPORT TO HSNS. In the event HSNS is unable to resolve errors identified by Outsourcing Customers with respect to the Application, E.piphany shall provide Secondary Support services to HSNS at the fee set forth on Exhibit A. For the purposes of this Agreement, SECONDARY SUPPORT SERVICES shall mean: (a) using reasonable efforts to modify the Application to correct, fix, or circumvent errors, and modifying Documentation, as E.piphany shall deem appropriate, to respond to reported errors; (b) providing technical and functional improvements to the Application including patches to errors, changes, modifications, enhancements, and Updates, as they generally become available; and (c) providing technical support services for the Application between the hours of 7:00 a.m. to 6:00 p.m. (Pacific Time), Monday through Friday.

6. PROFESSIONAL SERVICES

6.1 SERVICES. E.piphany may from time to time perform Professional Services as may be agreed upon by the parties in an Order Form.

6.2 FEES, EXPENSES AND INVOICING. HSNS shall pay E.piphany the fees set forth in the applicable Order Form, together with reimbursement for all actual, reasonable travel and living expenses incurred by E.piphany in rendering Professional Services. E.piphany will invoice HSNS on a monthly basis for Professional Services rendered and for any applicable expense reimbursement. All Professional Services not otherwise specified in the Order Form shall be provided on a time and materials basis.





6.3 PERFORMANCE STANDARDS. E.piphany shall perform Professional Services in a timely and competent manner consistent with generally acceptable industry standards. Upon reasonable notice to HSNS, E.piphany may substitute or withdraw personnel rendering Professional Services.

6.4 ACCEPTANCE. Each Deliverable shall be deemed accepted upon the earlier of: (i) receipt of written notice of acceptance from HSNS, or (ii) ten (10) days after delivery of such Deliverable (Acceptance Period), unless HSNS provides E.piphany with a detailed list of material non-conformities during the Acceptance Period. If HSNS properly rejects a Deliverable, E.piphany will use reasonable commercial efforts to correct the material non-conformity specified in the notice. When it believes that it has made the necessary corrections, E.piphany will again deliver the Deliverable to HSNS and the acceptance/ rejection/correction process shall be reapplied until the Deliverable substantially complies with the requirements of the Statement of Work.

6.5 CHANGE CONTROL. Any change to the scope of a project, any Deliverable, milestone or payment obligation contained in an Order Form (and/or the attached Statement of Work) shall be made only in writing and signed by authorized representatives of E.piphany and HSNS. Unless otherwise agreed by the parties in writing, E.piphany shall have no obligation to provide Professional Services (i) beyond the scope of matters expressly described in the Order Form (and attached Statement of Work); or (ii) which becomes necessary as a consequence of events beyond E.piphany's reasonable control.

6.4 OWNERSHIP OF DELIVERABLES. HSNS acknowledges and agrees that any and all Deliverables shall be and remain the property of E.piphany. E.piphany grants HSNS a non-exclusive, non-transferable, non-sublicensable license to use such Deliverables solely for is internal use consistent with the terms of this Agreement.

6.5 HSNS RESPONSIBILITIES. HSNS shall provide E.piphany with (i) one (1) designated contact for all questions and issues relating to Professional Services; (ii) access to HSNS's facilities and office support as may be reasonably requested by E.piphany; and (iii) the services of sufficiently qualified HSNS personnel as may be reasonably necessary to enable E.piphany to perform the Professional Services.

7. TRAINING SERVICES

7.1 TRAINING SERVICES. In consideration for payment of the fees and charges set forth in Exhibit A, E.piphany shall provide Training Services as set forth in Exhibit C. The training sessions will take place at E.piphany's facilities and E.piphany will supply all necessary equipment. HSNS shall be responsible for all travel and lodging expenses associated with attending the training session.

7.2 ADDITIONAL TRAINING SERVICES. HSNS may, at its option and expense, attend additional E.piphany training courses, dependent upon space availability. Any additional training shall be provided at E.piphany's standard rates for such training, and will take place at E.piphany's facilities. HSNS shall be responsible for all travel and lodging expenses associated with attending the additional training sessions.

8. PROPRIETARY RIGHTS

8.1 E.PIPHANY OWNERSHIP. HSNS acknowledges that E.piphany retains all right, title and interest in the Application and any modifications thereto, including without limitation any

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customization, enhancement, amendment or change to the Application. HSNS hereby assigns all right, title and interest in and to any customization, enhancement, amendment or changes made by or for HSNS pursuant to this Agreement, and hereby waives any and all moral rights that HSNS may retain in and to such customizations, enhancements, amendment and changes. The Application and any modifications are licensed pursuant to this Agreement to HSNS for use of the Application and any modifications thereto. HSNS hereby represents and warrants that the assignment of rights by HSNS in and to such modifications includes any right, title and interest in and to all modifications created by or for HSNS For avoidance of doubt, modification to the Application to be owned by E.piphany shall not include pre-existing HSNS intellectual property or intellectual property developed by HSNS without reference to E.piphany Confidential Information. All data created by HSNS using the Outsourcing Application shall be owned by HSNS.

8.2. PROPRIETARY NOTICES. HSNS shall not remove any E.piphany trademark, copyright or other proprietary notices from any part of the Application or Documentation, and shall reproduce such notices on any copies of such materials made by HSNS. Moreover, HSNS shall consistently identify the Application as a managed application in the Outsourcing Services to existing and prospective Outsourcing Customers in the ordinary course of HSNS' business.

8.3 USE. During the term of this Agreement, each party shall have the right to indicate to the public that HSNS is an authorized Outsourcing Service provider of E.piphany's Application. HSNS shall use E.piphany's Trademarks solely for purposes of advertisement, promotion, and sale of the Application in conjunction with the Outsourcing Applications and Services and for no other purposes. Either party shall use the other party's Trademarks in accordance with the guidelines established by the other party from time to time. Nothing herein shall grant to either party any right, title or interest in the other party's Trademarks. At no time shall either party use any of the other party's Trademarks in any manner likely to confuse, mislead, or deceive the public, or in any way that is





injurious to&sbsp;the other party's reputation. At no time during or after the term of this Agreement shall either party challenge or assist others to challenge the other party's Trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of the other party.

8.4. APPROVALS. Each party shall allow the other to review all press announcements, press releases, marketing materials, HSNS' co-branded or E.piphany branded screens, product brochures and any use of the other's Trademarks referencing the other party prior to their release to the public or the press, and shall incorporate all changes that the other may reasonably request to ensure correct usage of their trademarks and accuracy of content. A party's failure to respond to the submission of material for approval with any recommended changes within three (3) business days shall be deemed an approval of the submission.

9. CONFIDENTIALITY

9.1 CONFIDENTIAL INFORMATION. By virtue of this Agreement, each party may have access to information that is confidential to the other party. Confidential Information shall consist of the Application, Documentation, the terms and pricing under this Agreement, and all information clearly identified as confidential at the time of disclosure (or, in the case of information disclosed orally, within thirty (30) days of the date of disclosure). Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party. HSNS shall not disclose the results of any Application benchmark tests to any third party without E.piphany's prior written approval. The parties agree to hold each other's Confidential Information in confidence for a period of five (5) years after disclosure of the Confidential Information or for a period of two (2) years after termination of this Agreement, whichever is earlier. The parties agree, unless required by law (in which event, the receiving party will notify the disclosing party of such requirement in sufficient time for the disclosing party to seek a protective order or take similar action), not to make each other's Confidential Information available in any form to any third party for any purpose, except that access to and the use of Confidential Information may be provided to those third parties that: (i) provide services to the recipient of Confidential Information; (ii) have a need to use and access such Confidential Information in providing such services; and (iii) are bound by an obligation of confidentiality at least as restrictive as the confidentiality restrictions of this Agreement. Each party agrees to take all reasonable steps required to ensure that Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

10. INDEMNITY

10.1 E.PIPHANY INTELLECTUAL PROPERTY INDEMNITY. E.piphany will defend or, at its option, settle a claim brought against HSNS that the Application, as used within the scope of this Agreement, infringes a U.S. copyright, patent, trademark or trade secret, and indemnify HSNS against all damages and costs, including reasonable attorneys' fees, that may be assessed in any such claim, provided that: (i) HSNS notifies E.piphany in writing within thirty (30) days of the claim; (ii) E.piphany has sole control of the defense and all related settlement negotiations; and (iii) HSNS provides E.piphany with reasonable assistance, information and authority necessary to perform E.piphany's obligations under this Section. E.piphany will reimburse HSNS's reasonable out-of-pocket expenses incurred in providing such assistance. E.piphany shall have no liability for any claim of infringement based on use of a superseded or altered release of the Application if the infringement would have been avoided by the use of a current unaltered release of the Application which E.piphany provides to HSNS without charge, or any combination of the Application with materials not provided or recommended by E.piphany. If the Application is held by a court of competent jurisdiction or believed by E.piphany to infringe, E.piphany shall have the option, at its expense, to (i) modify the Application&sbsp;to be non-infringing; or (ii) obtain for HSNS a license to continue using the Application. If E.piphany determines that it is not commercially reasonable to perform either of the above options, then E.piphany may terminate the license for such Application and refund the license fees paid for the Application, prorated as depreciated over five (5) years on a straight-line basis from the Effective Date.

10.2 GENERAL INDEMNITY. HSNS hereby agrees to indemnify, defend and hold harmless E.piphany, and its officers,

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directors and partners (each, an Indemnified Party) against any and all claims, demands, causes of action, damages, costs, expenses, penalties, losses and liabilities (whether under a theory of negligence, strict liability, contract or otherwise) incurred or to be incurred by an Indemnified Party (including but not limited to costs of investigation and reasonable attorney and other third party fees and, to the extent permitted by law, fines, penalties and forfeitures in connection with any proceedings against the Indemnified Party) arising out of or resulting from (i) HSNS's providing or failure to provide Outsourcing Services, (ii) any representation, warranty or claim made by or on behalf of HSNS to any Outsourcing Customer, or (iii) Outsourcing Services infringement or alleged infringement of any copyright, trademark, trade secret, or other property rights of any third parties arising in any jurisdiction throughout the world. E.piphany shall (i) notify HSNS in writing within a reasonable time of becoming aware of such claim, suit or proceeding, (ii) give





HSNS the right to control and direct the investigation, preparation, defense and settlement of any claim, suit or proceeding (provided that HSNS shall not enter into any settlement without E.piphany's prior written consent); and (iii) provide reasonably requested assistance and cooperation for the defense of same.

10.3 LIMITATION ON INDEMNITY. Notwithstanding the provisions of Section 10.1 (E.piphany Intellectual Property Indemnity), E.piphany assumes no liability for infringement claims arising from (i) the combination of the Application with products not provided by E.piphany, (ii) any modification to the Application unless such modification was made by E.piphany. Either party shall be solely responsible for, and shall indemnify and hold free and harmless the other party for, any and all claims, damages or lawsuits (including reasonable legal fees) arising from the tortious or grossly negligent acts of the indemnifying party's employees, agents or Contractors. THE PROVISIONS OF SECTION 10.1 (E.PIPHANY INTELLECTUAL PROPERTY INDEMNITY) STATE THE ENTIRE LIABILITY AND OBLIGATION OF E.PIPHANY, AND THE EXCLUSIVE REMEDY OF HSNS, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE APPLICATION OR ANY PART THEREOF. THIS LIMITATION OF LIABILITY APPLIES NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE EXCLUSIVE REMEDIES.

11. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL E.PIPHANY'S LIABILITY HEREUNDER EXCEED THE SUM TOTAL OF PAYMENTS MADE BY HSNS UNDER THE INITIAL TERM OF THIS AGREEMENT. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN E.PIPHANY AND HSNS AND E.PIPHANY'S PRICING REFLECTS THIS ALLOCATION TO WHICH THE PARTIES HAVE AGREED. THIS LIMITATION OF LIABILITY APPLIES NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE EXCLUSIVE REMEDIES.

12. TERM AND TERMINATION

12.1 TERM AND TERMINATION. This Agreement shall continue for a term set forth in Exhibit B, and may be renewed for successive one (1) year terms pursuant to mutual written agreement of the parties, unless terminated earlier pursuant to this Section 12.1. Upon prior written notice, either party may terminate this Agreement if the other party becomes insolvent, ceases doing business in the regular course, files a petition in bankruptcy or is subject to the filing of an involuntary petition for bankruptcy which is not rescinded within a period of sixty (60) days, or fails to cure a material breach of any term or condition of this Agreement within thirty (30) days of written notice specifying such breach.

12.2 RETURN OF MATERIALS. Upon termination of this Agreement for any reason, HSNS shall (except as provided in Section 12.3 (Effect of Termination) immediately discontinue use of the Application and within ten (10) days certify in writing to E.piphany that all copies of the Application, in whole or in part, in any form, have either been returned to E.piphany or destroyed in accordance with E.piphany's instructions.

12.3 EFFECT OF TERMINATION. Upon termination of this Agreement, other than by reason of a termination for material breach due to a breach by HSNS pursuant to Section 12.1 (Term and Termination), (i) HSNS shall have the right to access and use the Application solely to provide Outsourcing Services, but only to the extent necessary to provide Outsourcing Services through the remaining unexpired term of an applicable Agreement with the Outsourcing Customer (without renewal following the termination of this Agreement), but in any extent not beyond twelve (12) months from the effective date of termination. Upon termination of this Agreement, E.piphany's obligation to provide Maintenance to HSNS shall terminate, and E.piphany may, in its sole discretion, provide Maintenance to HSNS and/or the Outsourcing Customers pursuant to terms upon which the parties may agree in writing. Termination of this Agreement shall not relieve HSNS's obligation to pay all fees that are owed by HSNS under this Agreement or any Order Form. All payments made by HSNS to E.piphany hereunder are non-refundable.

12.4 LIMITATION ON LIABILITY. In the event of termination by either party in accordance with any of the provisions of this Agreement, neither party shall be liable to the other, because of such termination, for compensation, reimbursement or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases or commitments in connection with the business or goodwill of E.piphany or HSNS.

12.5 SURVIVAL. The provisions of Sections 1.4, 3.1, 3.4, 4.3, 6.2, 6.4, 8, 9, 11, 12, 13 and 14 shall survive any termination or expiration of this Agreement. All other rights and licenses granted herein will cease upon termination.

13. GENERAL

This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of California. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in San Francisco or San Mateo County, California, and each party hereby submits to the personal jurisdiction of such courts. Except for actions for nonpayment of breach of E.piphany's proprietary rights in the Application, no action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of action has accrued. Neither party may

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assign or otherwise transfer this Agreement to any person or entity without the





other's written consent, such consent not to be unreasonably withheld or delayed; provided that the withholding of consent of assignment to a competitor of the other party shall be deemed reasonable. Any assignment in derogation of the foregoing shall be null and void. At E.piphany's written request, not more frequently than annually, HSNS shall furnish E.piphany with a signed certification verifying that the Application is being used pursuant to the provisions of this Agreement and applicable Order Forms. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been given when mailed by first class mail to the applicable address listed in the relevant Order Form. To expedite order processing, HSNS agrees that E.piphany may treat documents faxed by HSNS to E.piphany as original documents; nevertheless, either party may require the other to exchange original signed documents. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force. The waiver by either party of any default of breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond the reasonable control of the non-performing party. This Agreement constitutes the complete agreement between the parties and supercedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. IT IS EXPRESSLY AGREED THAT THE TERMS OF THIS AGREEMENT AND ANY ORDER FORM SHALL SUPERSEDE THE TERMS IN ANY HSNS PURCHASE ORDER OR OTHER ORDERING DOCUMENT. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage or custom shall be deemed to amend or modify this Agreement.

14. DEFINITIONS

APPLICATION means the English version of the E.piphany Application programs listed in Exhibit A, in object code format, any accompanying Documentation, and any Updates (as defined in Section 5.5 (Updates), only if and when generally commercially available as part of the Maintenance Services provided pursuant to Section 5 (Maintenance Services).

CONCURRENT USERS means, collectively, the end-users who are employees and/or contractors of: (a) HSNS, who are permitted simultaneous access to, and use of, the Application for the purpose of providing Outsourcing Services, and (b) Outsourcing Customers, who are permitted simultaneous access to and use of the Application for the purpose of using the Outsourcing Services.

DESIGNATED SYSTEM means the computer system located in the U.S. on which the Application will run and which is identified on Exhibit A.

DELIVERABLE means deliverables provided as part of Professional Services, including, without limitation, any modification or enhancement to the Application, and any ideas, know-how or techniques relating thereto.

DOCUMENTATION means the then-current technical publications, as amended from time to time, relating to the use of the Application, such as reference, user and installation guides, in electronic or hard copy format, made available with the Application.

INTERACTION means any inbound electronic communication, transmission or interaction with the Application (over any channel of communication including email, chat, fax, CTI or chat) initiated by or on behalf of any person other than an Outsourcing Customer User. Subject to the foregoing, an Interaction shall not include an instance in which the Application accesses information or data from back-end third party Application operating in combination with the Application.

MAINTENANCE means the technical support described in Section 5 above that E.piphany provides under this Agreement.

MARKET means the targeted business set forth in Exhibit B

ORDER FORM means the document in the form of Exhibit A, by which Applications, Maintenance or Professional Services can be ordered under this Agreement.

OUTSOURCING APPLICATION means the application specific use of the Application described in Exhibit B.

OUTSOURCING CUSTOMER means each third party end-user customer of HSNS who is a party to a then-current HSNS Subscription Agreement.

OUTSOURCING CUSTOMER(S) means one of Outsourcing Customer's customers in the ordinary course of business, to whom Outsourcing Customer provides a comprehensive solution through use of the Outsourcing Services.

OUTSOURCING CUSTOMER USER means a named person who is an officer, employee, agent, or other person authorized by HSNS to receive Outsourcing Application Services from HSNS for an Outsourcing Customer.

OUTSOURCING COMPANY(IES) means a company that employs HSNS to support its internal business purposes through Concurrent Users' use of the Application.

OUTSOURCING SERVICES means HSNS's provision of a comprehensive customer relationship management solution in an outsourced environment as more particularly described in Exhibit B, where: (i) Concurrent Users' use of the Application solely for the purpose of supporting Outsourcing Customers, and (ii) where the Application constitutes no more than ten percent (10%) of such Outsourcing Services.

REMOTE ACCESS means direct connection to the Designated System via the Internet, via PPTP, direct TCP/IP or other such high-speed, point-to-point





network access.

SCOPE OF USE means the limitations on HSNS's use of the Application, specifically, the numbers of Concurrent Users and Interactions set forth in Exhibit A.

STATEMENT OF WORK means a written document setting forth the scope of implementation and/or consulting services, the anticipated schedule, deliverables, if any, and fee structure.

TERRITORY means the geographic area set forth in Exhibit B.

(intentionally left blank)

                                    6    7

UPDATE means any published (i) new release of the Application that is not designated by E.piphany as a new product for which it charges separately; and/or (ii) error correction or functional enhancement to the Application. E.piphany shall determine, in its sole discretion, when it shall make Updates available to HSNS, provided that any such Update shall be made available to HSNS no later than thirty (30) days following its general commercial release.

IN WITNESS WHEREOF, the parties by their duly authorized representatives have executed this Agreement as of the date set forth above.

E.PIPHANY, INC.                              HIGH SPEED NET SOLUTIONS, INC.

SIGNATURE:      /s/ Karen Richardson         SIGNATURE:    /s/ Andrew Fox                 --------------------                       --------------------- PRINT NAME:     Karen Richardson             PRINT NAME:   Andrew Fox                 --------------------                       ---------------------

TITLE:          EVP Sales                    TITLE:        President & CEO                 --------------------                       ---------------------

                                    7    8

                                 EXHIBIT A                                    ORDER FORM

This Order Form (Order Form) to the Outsourcing Agreement by and between E.piphany, Inc. (E.piphany) and High Speed Net Solutions, Inc. (HSNS ) dated July __, 2000 (Agreement). Capitalized terms used herein shall have the same meaning ascribed to them in the Agreement. It is expressly agreed that the terms of the Agreement and the Order Form shall supersede the terms in any HSNS purchase order or other ordering document.

1.0      ORDER FORM EFFECTIVE DATE: JULY __,  2000.

2.0      LICENSED APPLICATIONS.

      CURRENT E.4 TIER 4         E-MAILER APPLICATION

      CURRENT E.4 TIER 3 CAMPAIGN MANAGEMENT SYSTEM APPLICATION , EXCLUSIVE          OF E.PIPHANY'S TIER 2 (DISTRIBUTED DATABASE MARKETING) APPLICATIONS.

      CURRENT E.4 TIER 1 (REPORTING AND ANALYSIS) ROWS AND COLUMNS, SOLELY AS          REQUIRED FOR THE OPERATION OF THE EMAILER APPLICATION AND CAMPAIGN          MANAGEMENT APPLICATION.

3.0      DEVELOPMENT LICENSE FEES AND SCOPE OF USE. In consideration of the          grant of rights and licenses set forth in this Agreement, HSNS shall          pay the following fees for the following scope of use throughout the          term of this Agreement:

      a.       DEVELOPMENT LICENSING FEES. HSNS will pay to E.piphany a                   development license fee of $230,500 due and payable as                   follows:

               $ 115,250.00      Net thirty (30) days from the Effective Date                                     of this Agreement.

               $ 115,250.00      Net ninety (90) days from the Effective Date                                     of this Agreement.

CAMPAIGN MANAGEMENT & EMAILER APPLICATIONS               (NT PLATFORM ONLY)                    YEAR 1         YEAR 2          YEAR 3           TOTAL

Development License Fees                          $ 212,500                                       $212,500 Annual Priority Maintenance Fees @ 22% of net      $ 46,750        $46,750        $46,750         $140,250                                                ---------------------------------------------------------------- Total                                              $259,250        $46,750        $46,750         $352,750





Net Development User Fees (each)                    $ 3,000                                        $ 3,000 Annual Priority Maintenance Fees @ 22% of net         $ 660          $ 660          $ 660          $ 1,980                                                ---------------------------------------------------------------- Total                                               $ 3,660          $ 660          $ 660          $ 4,980

Number of Users                                           6                                              6 Total Users Fees                                   $ 18,000                                       $ 18,000 Annual Priority Maintenance Fees @ 22%              $ 3,960        $ 3,960        $ 3,960         $ 11,880                                                ---------------------------------------------------------------- Total                                              $ 21,960        $ 3,960        $ 3,960         $ 29,880

TOTAL DEVELOPMENT LICENSE AND USER FEES           $ 281,210       $ 50,710       $ 50,710        $ 382,630

      b. MINIMUM SELL THROUGH REVENUE COMMITMENT: HSNS will pay to E.piphany a minimum sell through revenue commitment of $750,000.00 (MINIMUM SELL-THROUGH COMMITMENT) during the initial three year term of this Agreement on the dates and in the minimum amounts (Minimum Quarterly Payments) as follows.

                                    8    9

--------------------------------------       ----------------------------------------     ----------------------------------------                     Minimum Quarterly                             Minimum Quarterly                            Minimum Quarterly  Payment Due Date       Payment                Payment Due Date        Payment              Payment Due Date        Payment --------------------------------------       ----------------------------------------     ----------------------------------------                                                                                                         October 1, 2000       $62,500                October 1, 2001         $62,500              October 1, 2002         $62,500

January 1, 2001       $62,500                January 1, 2002         $62,500              January 1, 2003         $62,500

April 1, 2001        $62,500                 April 1, 2002          $62,500               April 1, 2003          $62,500

July 1, 2001         $62,500                  July 1, 2002          $62,500                July 1, 2003          $62,500

--------------------------------------       ----------------------------------------     ----------------------------------------   Year 1 - TOTAL      $250,000.00               Year 2 - TOTAL       $250,000.00             Year 3 - TOTAL       $250,000.00 --------------------------------------       ----------------------------------------     ----------------------------------------

4.0.     ADDITIONAL FEES

      4.1      INCREASES TO THE MINIMUM SELL THROUGH COMMITMENT. The Minimum                   Sell Through Commitment will increase in Years 2 and 3 of this                   Agreement as follows:

               YEAR 2 - Annual minimum payment ($250,000.00), plus a                   percentage increase in the annual minimum payment equal to 50%                   of the difference between the number of emails sent by HSNS on                   behalf of Outsourcing Customers in the first six months of                   Year 1 and the second six months of Year 1, up to a maximum                   Year 2 payment of $375,000.00. Payment is due and payable in                   equal quarterly installments (Year 2 Quarterly Payments). On                   the thirtieth (30th) day after the end of Year 1, HSNS shall                   submit a report to E.piphany (in a format provided by                   E.piphany, but reasonably acceptable to HSNS) listing the                   total number of emails distributed by Outsourcing Customer for                   the first and second six months of Year 1. Year 2 Quarterly                   Payments will be due and payable thereafter on July 1, 2001;                   October 1, 2001; January 1, 2002; April 1, 2002. All reporting                   and payment requirements under this Section 4.1 shall be                   subject to Section 3.4 of the HSNS Agreement.

               YEAR 3 - Annual minimum payment ($250,000), plus a percentage                   increase in the annual minimum payment equal to 50% of the                   difference between the number of emails sent by HSNS on behalf                   of Outsourcing Customers in Year 1 and Year 2, up to a maximum                   Year 3 payment of $500,000.00. Payment is due and payable in                   equal quarterly installments (Year 3 Quarterly Payments.) On                   the thirtieth (30th) day after the end of Year 2, HSNS shall                   submit a report to E.piphany (in a format provided by                   E.piphany, but reasonably acceptable to HSNS) listing the                   total number of emails distributed by Outsourcing Customer for                   Years 1 and 2. Year 3 Quarterly Payments will be due and                   payable thereafter on July 1, 2002; October 1, 2002; January                   1, 2003; April 1, 2003. All reporting and payment requirements                   under this Section 4.1 shall be subject to Section 3.4 of the                   HSNS Agreement.

      4.2      LEAD SHARING FEES: HSNS agrees to pay E.piphany an additional                   $0.005 per email for any email distributed by HSNS as a result                   of any deal it closes that either results from a lead                   generated by E.piphany or in which E.piphany assisted prior to                   closing for the first year after the deal closes. Lead sharing                   activities include leads that HSNS obtains from participation                   at E.piphany vendor shows or participation in an E.piphany                   booth at E.piphany specified trade shows.

               HSNS agrees to pay lead sharing fees on a quarterly basis for                   the first year of any HSNS engagement resulting from an                   E.piphany lead. On the thirtieth (30th) day after the end of





               each quarter, HSNS shall submit a report to E.piphany (in a                   format provided by E.piphany, but reasonably acceptable to                   HSNS) listing (i) the total number of emails distributed for                   the quarter; along with payment for the quarterly lead sharing                   fees owed to E.piphany. All reporting and payment requirements                   under this Section 4.2 shall be subject to Section 3.4 of the                   HSNS Agreement.

5.0.     TERM. This Agreement shall have an initial term of three (3) years.

6.0      ANNUAL MAINTENANCE FEES

      YEAR 1   $50,710.00 due and payable in four (4) equal installments of                   $12,677.50 as follows:

                        Net thirty days from the Effective Date of this                            Agreement.

                                 October 1, 2000.

                                    9    10

                                 January 1, 2001.                   April 1, 2001

      YEAR 2 $50,710.00 due and payable in four (4) equal quarterly installments of $12,677.50 on: July 1, 2001, October 1, 2001 January 1, 2002 and April 1, 2002.

      YEAR 3 $50,710.00 due and payable in four (4) equal quarterly installments of $12,677.50 on: July 1, 2002, October 1, 2002, January 1, 2003, and April 1, 2003.

7.       DESIGNATED SYSTEM: NT-- 434 Fayetteville Street, Suite 600, Raleigh, NC          27601.

8.       NOTICES:

------------------------------------------ ------------------------------------- HSNS CONTACT                               E.PIPHANY CONTACT Theodore Harper, Esq.                      General Counsel Kilpatrick and Stockton  LLP               E.piphany, Inc. 3737 Glenwood Avenue, Suite 400            1900 S. Norfolk St., Suite 310 Raleigh, NC 27612                          San Mateo, CA 94403 919/ 420-1709 (phone)                      650/356-3800 (phone) email: tharper@kilstock.com                650/356-3907 (fax) ------------------------------------------ -------------------------------------

------------------------------------------ ------------------------------------- HSNS TECHNICAL CONTACT                     E.PIPHANY TECHNICAL CONTACT Harris Glover                              Director, Technical Support VP of High Speed Net Solutions, Inc.       E.piphany, Inc. 434 Fayetteville Street, Suite  2120       1900 S. Norfolk St., Suite 310 Raleigh, NC 27601                          San Mateo, CA 94403 919/807-5690 (phone)                       650/356-3800 (phone) 919/807-0508 (fax)                         650/356-3801 (fax) email: Harris.glover@hsns.com ------------------------------------------ -------------------------------------

6.       HSNS BILLING INFORMATION:                      SHIPPING INFORMATION:

BILLING ADDRESS: _ _ High Speed Net Solutions, Inc.     SHIPPING ADDRESS: 434 Fayetteville Street, Suite 2120 Raleigh, NC 27601

BILLING CONTACT: ROBERT LOWREY, CFO                     SHIPPING CONTACT: TELEPHONE: _919/807-5690                                TELEPHONE; EMAIL: MAILTO:__ROB.LOWREY@HSNS.COM                     EMAIL: FACSIMILE: 919/807-0508                                 FACSIMILE:

AGREED BY:

E.PIPHANY, INC.                              HIGH SPEED NET SOLUTIONS, INC.

SIGNATURE:        /s/ Karen Richardson       SIGNATURE:       /s/ Andrew Fox                   --------------------                        ------------------

PRINT NAME:       Karen Richardson           PRINT NAME:      Andrew Fox                   --------------------                        ------------------

TITLE:            EVP Sales                  TITLE:           President & CEO                   --------------------                        ------------------

                                    10    11

                                 EXHIBIT B          DESCRIPTION OF OUTSOURCING APPLICATION AND OUTSOURCING SERVICES                               TERRITORY AND MARKET





OUTSOURCING APPLICATION TITLE AND DESCRIPTION: Outsourcing Application Title and Description:

Rich Media Direct Rich Media Direct is an online direct marketing turnkey service that targets rich media advertisements to selected demographics/psychographics via Rich Media Direct delivery mechanisms.

OUTSOURCING SERVICE TITLE AND DESCRIPTION:

High Speed Rich Media Direct Service

The Rich Media Direct service will take (a 15- or 30-second video advertisement) and target to selected 'opt-in' recipient list. The service will compress and package advertisements to provide a compelling advertisement. The High Speed Rich Media Direct Network provides customers dedicated bandwidth and a distributed infrastructure to efficiently distribute rich media advertisements to targeted audiences. In addition, the High Speed Rich Media Direct Service offers customers the following benefits:

*        7x24 Service and Support

*        Content packaging and compression

*        Online tracking & reporting of campaigns

*        Customized media player GUI's for brand extension and hyperlinks

*        Online repeat campaign and list selection

*        Streaming services

This service provides complete protection and privacy to your distribution list and all data collected during your campaign.

HOSTED SYSTEMS:  Microsoft NT Server

MARKET:  Persons or Entities who wish to use Rich Media Advertising Services

TERRITORY: HSNS shall have rights under this Agreement to provide Outsourcing Application and Outsourcing Services to Outsourcing Customers globally without restriction contingent upon HSNS providing Outsourcing Services from the Designated System. HSNS shall submit quarterly reports to E.piphany listing the number of Outsourcing Customers located outside of the United States, by country and the number of emails sent on their behalf so that E.piphany can use such information to allocate sales revenue for the payment of commissions to its local sales representatives.

                                    11    12

EXHIBIT C                               TRAINING AND SUPPORT

A.  TRAINING

      1. SALES AND MARKETING TRAINING. Reseller must have a minimum of five (5) of its sales staff participate in the sales and marketing training in the first 6 months of this agreement. Sales and Marketing training will be available to Reseller at a rate of 25% off of E.piphany's list price.

      2. PRE-SALES TECHNICAL TRAINING. Reseller must have a minimum of two (2) of its pre-sales technical staff participate in the pre-sales technical training in the first 6 months of this agreement. All pre-sales technical consultants must have appropriately configured hardware on which to load demonstration software at the time of such training. Pre-Sales Technical Training will be available to Reseller at a rate of 25% off of E.piphany's list price.

      3. EXPENSES. For any sales and marketing training or any technical training provided by E.piphany to Reseller at any location other than E.piphany's San Mateo location, E.piphany shall bill Reseller and Reseller shall pay for any reasonable travel, lodging, and living expenses incurred by E.piphany for such training. All travel will be pre-approved by Reseller.

B.  ADDITIONAL MARKETING REQUIREMENTS FOR HSNSS

1.       Alliance Manager. Each party shall provide a single point of contact to          maintain overall responsibility for the relationship between E.piphany          and HSNS. The following are examples of responsibilities of the single          point of contact that will be mutually agreed upon to by the parties          within the first (30) days after the Effective Date of the Agreement:

      i.       Business Plan Development

      ii.      Coordination of Marketing Activities: E.piphany and HSNS agree                   to issue a joint press release.

      iii.     Coordination of Sales Teams

      iv.      Coordination of Engineering Teams

      E.piphany: ____________________________________





      HSNS:   ____________________________________

                                    12 
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?

Answer: At no time during or after the term of this Agreement shall either party challenge or assist others to challenge the other party's Trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of the other party.


Question: 1                                                                    EXHIBIT 10.3

                SOFTWARE LICENSE AND MAINTENANCE AGREEMENT

      This Software license and maintenance agreement (Agreement) is entered into effective as of August 4, 1997 (the Effective Date) by and between D2 Technologies, Inc., a California corporation with offices at 104 West Anapamu Street, Santa Barbara, CA 93101 (D2), and Summa Four Inc., a Delaware corporation with offices at 25 Sundial Avenue, Manchester, New Hampshire 03103-7251 (LICENSEE).

      WHEREAS, D2 has previously developed certain software and designs capable of performing certain voice processing functions;

      WHEREAS, LICENSEE is developing a product which requires certain software functions and designs capable of performing certain voice processing functions;

      WHEREAS, D2 desires to license to LICENSEE certain of its software technology for use in connection with Licensee's products:

      WHEREAS, D2 is further willing to provide certain maintenance and support services to LICENSEE in relation to such software technology;

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

1.       DEFINITIONS

      1.1      Licensed Technology shall mean software licensed to LICENSEE by D2 as listed in Exhibit A.

      1.2      DSP shall mean digital signal processing.

      1.3      Runtime License Fee shall have the meaning set forth in Article 2.2(iii).

      1.4      Specifications shall mean D2's specifications of the Licensed Technology which are attached hereto as Exhibit A.

      1.5      Update shall mean a new release of a software product which typically includes bug fixes and/or minor feature changes, but does not include substantial new functionality.

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL

  2

      1.6      New Version in this Agreement shall mean a new release of Licensed Technology that provides significant performance enhancements, including new releases of software product optimized for different members of the same DSP processor family which is based on the same core architecture and instruction set.

      1.7      Defect shall mean any failure of Licensed Technology to meet the Specification as a result of a material failure (including an error or bug that is material) of the Licensed Technology. Material is defined as priority A, B, and C in Article 6.3.

      1.8      Source Code shall mean all computer programming instructions relating to a software product in a form readable by humans and typically prepared by a programmer. Source Code includes associated procedural code, comments, utilities, tools, notes, data diagrams and related and supporting technical documentation.

      1.9      Object Code shall mean software code resulting from the translation or processing of Source Code by a computer into machine language or intermediate code, which thus is in a form that would not be convenient to human understanding of the program logic, but which is appropriate for execution or interpretation by a computer.

      1.10     Licensed Source Code shall mean Source Code for Licensed Technology.

      1.11     Licensee Product shall mean the product being developed by LICENSEE as described in Exhibit B, which utilizes Licensed Technology. LICENSEE shall own all rights, title and interest in Licensee Product. D2 shall have no rights to Licensee Product.

      1.12     End User shall mean a person or business entity that purchases, leases or otherwise properly obtains the right to use or distribute a Licensee Product directly from LICENSEE or through one or more intermediaries.

2.       LICENSED TECHNOLOGY

      2.1      Ownership. Subject to the rights granted to LICENSEE in this Agreement, D2 owns all right, title and interest in and to the Licensed Technology. Notwithstanding the foregoing, LICENSEE shall retain all right, title and interest in and to modifications to the Licensed Source Code made by LICENSEE pursuant to the license in Article 2.2 below, subject always to D2's ownership rights in the underlying Licensed Technology.

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL

3





      2.2      License to LICENSEE.

                        (i)      Subject to the terms and conditions of this  Agreement, D2 hereby grants LICENSEE a perpetual non-exclusive, worldwide license, to use Licensed Technology in Object Code format only as an incorporated part of the Licensee Product. For this purpose, LICENSEE may also modify, create derivative works, of and reproduce and have reproduced the Licensed Technology, and to develop, use, market and distribute (directly or through third parties) Licensed Technology, or modifications or derivative works of the Licensed Technology created by or for LICENSEE.

                        (ii)     In consideration for the right to modify, develop and completely own derivative works of the Licensed Technology set forth in Article 2.2 (i) above, LICENSEE shall pay D2 a license fee (the Development License Fee) as set forth in Exhibit C. Final acceptance testing shall be completed by the parties according to Article 4 of this Agreement.

                        (iii)    LICENSEE shall pay D2 a license fee  (Runtime License Fee) as set forth in Exhibit C for each copy of the Licensed Technology that LICENSEE distributes to end users directly or through third parties for such end-user's use in connection with Licensee's Product. The Runtime License Fee shall be paid by LICENSEE quarterly for Licensee Products which have been paid for by Licensee's end-user customer in the prior quarter. To the extent Licensee accepts returns or is required to provide refunds to its customers (and to the extent additional Licensee Products are delivered to customers for warranty or maintenance/support purposes), such circumstances will either entitle Licensee to obtain a credit against future Runtime License Fees owed or, in the case of warranty/maintenance or support deliveries, no Runtime License Fees shall be due at all.

                        (iv)     LICENSEE is also granted a limited  non-transferable non-exclusive license to Licensed Source Code to perform software maintenance functions according the terms set forth in Article 7 of this Agreement.

                        (v)      D2 shall provide LICENSEE with master copies of the Licensed Technology, in Source Code and Object Code format, promptly after such software has been completed, tested and approved for release by D2 and Licensee. In any event, D2 shall deliver all Licensed Technology completely tested and approved for performance in accordance with the specifications.

      2.3      End User License. LICENSEE shall ensure that all Licensed Technology distributed by LICENSEE shall be subject to a shrink-wrap agreement or other end user agreement which contains a provision substantially similar to the provision set forth in Exhibit D.

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL

4

3.       ADDITIONAL TECHNOLOGY LICENSE

      3.1      New Functions. In the event that LICENSEE requires any additional functionality or technology substantially different from those set forth in Exhibit A or otherwise made available by D2 to other Licensees, D2 shall license such additional functionality or technology to LICENSEE at D2's then best price to its other Licensees. Such additional technology licenses shall be subject to the same terms of this agreement except for an amendment to the product specification and price schedule of Exhibits A and C. Any other new licensing terms shall be negotiated in advance and included in said amendment.

      3.2      Different Processors.

               (A)      Supported Processors: If D2 offers or plans to offer all or part of Licensed Technology on a processor (Supported Processor) different from the Texas Instruments (TI) TMS320C54x family of processors, D2 shall make available to LICENSEE such new versions of Licensed Technology under the same terms of this Agreement subject to the license fees as follows:

                        (i)      The development license fees for any part or all of Licensed Technology for each Supported Processor shall be 50% of that for the TMS320C54x processor family as listed in Exhibit C.

                        (ii)     The per-processor runtime license fees for any Supported Processor shall be the same as that specified in Exhibit C for the TI TMS320C54x.

                        (iii)    The runtime license fee CAP in exhibit C shall be cumulative across the TI TMS320C54x, TMS32OC55x, TMS330C6x, and other TI processors based on the same core processor architecture. For processors other than the TI processors listed in this Article 3.2A(iii) (additional supported processors), the runtime license fee CAP and buy-out license fee in Exhibit C shall be increased by 25% for each additional supported processor. The CAP for Licensed Technology shall be cumulative across all Supported Processors (including additional supported processors) utilized by LICENSEE. If the cumulative inflation index (according to government published Consumer Price Index) exceeds 25% from the effective date of this Agreement to the time when D2 makes available Licensed Technology for an additional supported processor, D2 and LICENSEE agree to negotiate in good faith reasonable incremental runtime license fees for Licensed Technology used in such additional supported processor.

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL

5

               (B) Unsupported Processors. If LICENSEE requires versions of Licensed Technology on a processor other than the Supported Processors, D2 agrees to negotiate in good faith with LICENSEE an agreement to develop such a version of Licensed Technology. Such an agreement shall include appropriate development license fees and runtime license fees as well as special engineering





service fees.

4.       ACCEPTANCE

      Upon delivery of the Licensed Technology to Licensee, D2 will have tested and verified that such Licensed Technology shall perform in accordance with an acceptance specification agreed to by D2 and LICENSEE. The acceptance specification shall be completed no later than 90 days after the effective date of this Agreement and shall be attached to this agreement as Exhibit F. Upon successful completion of the acceptance testing, LICENSEE shall make the final Development License Fee payment described in Exhibit C LICENSEE shall, within thirty (30) days after delivery of any Licensed Technology, either accept such Licensed Technology or reject such Licensed Technology because of nonconformance with the Specifications. LICENSEE shall provide D2 with written notification of any rejection of Licensed Technology which explains the basis for such rejection. If completion of testing is precluded or delayed due to performance deficiencies, incompatibilities or other Defects in the Licensed Technology, D2 shall immediately and without any additional payment, correct such Defects.. All corrected versions of the Licensed Technology shall be subject to the acceptance procedures set forth above in this Article 4.

5.       REPORTS, AUDITS

      5.1      Reports. Within thirty days after the end of each calendar quarter during the term of this Agreement, LICENSEE shall provide D2 with written reports setting forth the number of LICENSEE Products containing the Licensed Technology that were licensed to end users by LICENSEE in such calendar quarter as more particularly described in Article 2.2 (iii) above.

      5.2      Audits. LICENSEE shall maintain records of its distribution of Licensee Products containing the Licensed Technology, for a period of one year after the date on which LICENSEE distributes the Products to which such records pertain. D2 may audit such records by engaging an independent public audit firm, approved in advance by Licensee, upon thirty days written notice, provided that (i) no more than one such audit may be made in any twelve month period, (ii) D2 may only audit LICENSEE's records for a particular time period once, and (iii) D2 shall be responsible for ensuring that the auditor executes and abides by LICENSEE's confidentiality agreement.

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL

6

6.       MAINTENANCE AND SUPPORT

      6.1      Maintenance and Support Obligation, Fees. On the date of expiry of the Warranty period defined in Article 8.3, and on any anniversary of the expiry date, LICENSEE may in its sole discretion pay D2 a Maintenance and Support Fee according to Exhibit C. In return for payment of such fee, D2 shall provide LICENSEE with the maintenance and support set forth in this Article 6 for a period of twelve months (the Contract Year). In any event, D2 shall provide support and maintenance services to Licensee during the Warranty period in breadth and scope which is no less than the support and maintenance services described in this Article. D2 shall make available to LICENSEE the maintenance and support services according to the terms of this Article 6 for a minimum of five years after Acceptance of Licensed Technology.

      6.2      Maintenance. Maintenance to be provided by D2 to LICENSEE shall include without limitation the following services;

                        (i)      D2 shall update and maintain the Licensed Technology throughout the term of this Agreement. It is intended that D2 shall release at least 1 Update or New Version release during each 12 month calendar year. Upon the releases of any Update or New Version of the Licensed Technology (including manuals), D2 shall promptly notify and deliver to LICENSEE such Update or New Version.

                        (ii)     D2 will initially deliver to LICENSEE one  (1) copy of any Updates or New Versions to the Licensed Technology and one (1) set of corresponding manuals for each copy of the Licensed Technology for which LICENSEE has paid the appropriate development license fees and maintenance fees pursuant to Exhibit C as soon as such Updates or New Versions and corresponding manuals become available and shall maintain such Updates or New Versions throughout this agreement.

      6.3      Error Correction. If D2 becomes aware of any Defect in the Licensed Technology, D2 shall promptly provide LICENSEE with written notice of such Defect. D2 shall have no obligation to actively monitor the Licensed Technology for Defects after such software has been accepted by LICENSEE. D2 shall work diligently to promptly correct Defects in accordance with the following schedule; days shall mean calendar days.

      ERROR PRIORITY (1)         RESPONSE (2)      CLOSURE (3)

      Emergency (A)              24 hours          7 days

      Critical (B)               2 days            14 days

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      Non-Critical (C)           30 days           Next Update                                                       or                                                       New Version

               (1)      Priority:

                        -A-      Catastrophic product or module Defects that do not have a viable detour or work around available.





                        -B-      Defects  that have been  substantiated  as a serious inconvenience to LICENSEE or an End User. This includes any priority A Defect for which a viable detour or work around is available.

                        -C-      All other problems that LICENSEE and an End User can easily avoid for which there is no urgency for a resolution.

               (2)      Response: Response consists of providing, as appropriate, one of the following to the LICENSEE: an existing correction; A new correction; a viable detour or work around; a request for more information to complete analysis of the problem, or a plan on how the problem will be corrected.

               (3)      Closure: Closure consists of providing a final  correction or work around of the problem including an Update and revised or new Documentation as necessary.

      If D2 fails to correct Defects according to the schedule specified in this Article 6, LICENSEE shall deduct from future runtime license fees, as specified in Exhibit C, a late fee for each day past the deadline in the schedule of this section. The late fee shall equal to 50% (fifty percent) of the runtime license fees paid to D2 for the previous two calendar quarters equally divided over 180 (one hundred eighty) days. In the event LICENSEE has selected the Buy-out option in the runtime license fee schedule of Exhibit C, then the late fee for each day past the deadline shall be 50% (fifty percent) of the Buy-out fee equally divided over 1095 (one thousand and ninety five) days; and this late fee shall be paid to LICENSEE each calendar month until the error is corrected either by D2 or LICENSEE.

      6.4      Support. D2 will provide the following support to LICENSEE throughout the Warranty period and for those subsequent years for which support has been purchased by Licensee:

                        (i)      D2 will assist LICENSEE in determining if problems encountered by LICENSEE are caused by programming errors in the Licensed Technology.

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                        (ii)     D2 will answer questions concerning the installation of Licensed Technology.

                        (iii)    D2 will assist LICENSEE in resolving LICENSEE's problems, if any, arising from the normal usage of the Licensed Technology.

                        (iv)     D2 shall appoint a qualified technical staff as the Technical Contact to co-ordinate all support and maintenance services. The Technical Contact shall be available to LICENSEE during D2's normal business hours; in the event that appointed Technical Contact is not available, a back-up Technical Contact shall be temporarily assigned and LICENSEE shall be notified.

      6.5      Notification and Cooperation by LICENSEE. To obtain support from D2 under this Article 6, LICENSEE shall provide D2 with written notice which will contain a description of the problem for which LICENSEE is seeking support. D2 shall have no obligation to correct problems which are due to modifications to Licensed Technology performed by LICENSEE; provided, that if D2 agrees to correct such problems it shall charge its then current time and materials rates, which shall be payable by LICENSEE within thirty days after invoicing by D2. LICENSEE agrees to provide D2 with access to LICENSEE's equipment and computer systems on a temporary basis and as needed to allow D2 to reproduce, correct and verify the correction of the problem reported by LICENSEE or otherwise identified by D2.

7.       LIMITED SOURCE CODE LICENSE AND PROTECTION

      7.1      Source Code delivery. D2 shall, after acceptance of Licensed Technology by LICENSEE and within fifteen days after receiving such a request from LICENSEE deliver a copy of the fully commented Source Code for the then current version of the Licensed Technology and information needed for compiling and building the Licensed Technology Object Code to LICENSEE. Thereafter, D2 shall automatically deliver a copy of the fully commented Licensed Source Code for the then current version of the Licensed Technology within fifteen days after the release of any Updates or New Versions of the Licensed Technology.

      7.2      Source Code Access Conditions. The following events shall constitute Source Code Access Conditions: (i) D2's insolvency, general assignment for the benefit of creditors, or ceasing to do business, or (ii) D2's failure or inability to meet its warranty, maintenance and support obligations under Article 6, or its warranty obligations under Article 8.3, within fifteen days after written notice by LICENSEE to D2 of D2's failure to meet such obligations, or (iii) termination of this Agreement by LICENSEE pursuant to Articles 9.3 and 9.4, or (iv) as needed by LICENSEE for fault isolation.

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      7.3      Use of Licensed Source Code. After Source Code Access Conditions is met, LICENSEE shall have the right to use, modify, reproduce and have reproduced Object Code from Licensed Source Code to develop, use, market, distribute, and to maintain and support the Licensed Technology in the Licensee Product. LICENSEE shall not have any right to develop new DSP technology or derivative DSP technology with the Licensed Source Code.

      7.4      Confidentiality and security.

               (A)      General. LICENSEE acknowledges and agrees that the Licensed Source Code constitutes the confidential and proprietary trade secrets of D2, and that LICENSEE's protection thereof is essential to this Agreement and





a condition of LICENSEE's use and possession of the Licensed Source Code. LICENSEE shall retain in strict confidence any and all elements of the Licensed Source Code and use the Licensed Source Code only as expressly licensed herein. LICENSEE agrees that it will under no circumstances distribute or in any way disseminate or disclose the Licensed Source Code to third parties, except as expressly provided in this Article 7. LICENSEE shall be relieved of this obligation of confidentiality to the extent that such information was in the public domain at the time it was disclosed or has become in the public domain through no fault of LICENSEE.

               (B)      Security. LICENSEE agrees to use the Licensed Source Code under carefully controlled conditions for the purposes set forth in this Agreement, and to inform all employees who are given access to the Licensed Source Code by LICENSEE that such materials are confidential trade secrets of D2 and are licensed to LICENSEE as such. LICENSEE shall restrict access to the Licensed Source Code to those employees and Contractors of LICENSEE who have agreed to be bound by a confidentiality obligation which incorporates the protections and restrictions substantially as set forth herein, and who have a need to know in order to carry out the purposes of this Agreement. D2 shall be made a third party beneficiary of any such agreements, and shall have the right to directly enforce the terms of those agreements, and of this Agreement, insofar as such enforcement relates to the Licensed Source Code.

               (C)      LICENSEE agrees to notify D2 promptly in the event of any breach of its security under conditions in which it would appear that the Licensed Source Code were prejudiced or exposed to loss. LICENSEE shall, upon request of D2, take all other reasonable steps necessary to recover any compromised trade secrets disclosed to or placed in the possession of LICENSEE by virtue of this Agreement. The cost of taking such steps shall be borne solely by LICENSEE.

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               (D)      Remedies. LICENSEE acknowledges that any breach of any of its obligations under this Article 7 is likely to cause or threaten irreparable harm to D2, and accordingly, LICENSEE agrees that in such event, D2 shall be entitled to equitable relief to protect its interest therein, including but not limited to preliminary and permanent injunctive relief, as well as money damages.

               (E)      Hardware.

                        (i)      Two (2) computers, as identified in Exhibit E, may be used as the Development Computer and Back-up Computer. The Back-up Computer may be used as the Development Computer during any time when the Development Computer is inoperative because it is malfunctioning or undergoing repair, maintenance or other modification.

                        (ii)     LICENSEE may at any time notify D2 in writing of any changes, such as replacements or additions, that LICENSEE wishes to make to Development and Back-up Computers for specific Licensed Source Code. D2 will prepare an amended Exhibit E as required to cover such changes, and such changes shall become effective after execution of the amended Exhibit E by LICENSEE.

                        (iii)    Upon request, LICENSEE shall furnish to D2 a statement, certified by an authorized representative of LICENSEE, listing the location, type and serial number of all Development and Back-up Computers hereunder and stating that the use by LICENSEE of the Licensed Source Code subject to this Agreement has been reviewed and that the Licensed Source Code is being used solely on the Development Computer (or temporarily on Back-up Computer) for such Licensed Source Code in full compliance with the provisions of this Agreement.

               (F)      Third Party Contractors. LICENSEE may appoint a third party contractor (Contractor) to assist the LICENSEE in LICENSEE's modification of the Licensed Source Code as authorized hereunder; provided that any such Contractor's access to and use of the Licensed Source Code shall only be permitted pursuant to a signed written agreement between LICENSEE and such Contractor giving the Contractor rights no broader than those granted LICENSEE in this Agreement, but limited to the sole purpose of assisting the LICENSEE, and including provisions incorporating the additional requirements set forth below:

                        (i)      Any claim, demand or right of action arising on behalf of a Contractor from furnishing to it or use by it of Licensed Source Code shall be solely against LICENSEE, and LICENSEE hereby indemnifies D2 against any such claims.

                        (ii)     Contractor shall agree to the same responsibilities and obligations and other restrictions pertaining to the use of Licensed Source Code as those undertaken by LICENSEE under this Agreement.

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                        (iii)    Contractor may not retain any copy of the Licensed Source Code or any modification or derivative work thereof and, upon completion of the project for which Contractor was permitted access to the Licensed Source Code or termination of this Agreement, shall return or destroy (i) all copies of Licensed Source Code furnished to such Contractor or made by such Contractor and (ii) all copies of any modifications or derivative works made by such Contractor based on such Licensed Source Code copies stored in any computer memory or storage medium, and Contractor's computer shall be removed from Exhibit E if such computer was listed as a Development Computer. A writing executed by an officer of Contractor shall be provided to D2 certifying that the Contractor has returned or destroyed all copies of the Licensed Source Code in its possession or control.





                        (iv)     Unless Contractor obtains a license for the Licensed Source Code from D2, Contractor may not acquire any ownership interest in any modification or derivative work prepared by such Contractor based upon or using Licensed Source Code licensed to LICENSEE under this Agreement.

                        (v)      Copies of such agreements shall be provided to D2 on request; provided however, that portions of such agreements not required by this Article 7 may be deleted from such copies.

8.       REPRESENTATIONS AND WARRANTIES

      8.1      By Both Parties. D2 warrants that it owns all rights, title, and interests to Licensed Technology listed as Basic Services in Exhibit A. LICENSEE and D2 each individually warrants that it (i) has all right, power and authority necessary to enter into this Agreement and to grant the rights granted herein; (ii) has obtained all approvals and authorizations that it is required to obtain in connection with this Agreement; and (iii) has not entered, and will not enter, into any arrangements or agreements inconsistent with this Agreement.

      8.2      Additional D2 Warranties. D2 additionally warrants that it (i) is not aware of any pending or actual litigation which is likely to have a material adverse effect on the rights or obligations of LICENSEE under this Agreement; and (ii) is not aware of any claim or any basis for any claim that Licensed Technology, or LICENSEE's use of the Licensed Technology as contemplated herein, will infringe any patents, trade secrets of other intellectual property rights belonging to any third party.

      8.3      Software Warranty. D2 warrants to LICENSEE that the media upon which the Licensed Technology is delivered to LICENSEE will be free from Defects in materials and workmanship, and that Licensed Technology shall meet and perform in accordance with D2's specifications on Exhibit A. D2 shall promptly correct any

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errors in the Licensed Technology, or failures of the Licensed Technology according to the terms of Article 6 of this Agreement. D2's warranty and error correction obligations with respect to any portion of the Licensed Technology shall extend for a period (the Warranty period) of one year commencing on acceptance of such portion of the Licensed Technology by LICENSEE.

      8.4      Disclaimer of Other Warranties. THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS ARTICLE 8 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE. D2 SPECIFICALLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THE LICENSED TECHNOLOGY.

9.       TERM AND TERMINATION.

      9.1      Term. This Agreement shall become effective on the Effective Date and shall continue in effect until terminated in accordance with the provisions of this Article 9.

      9.2      For Convenience. LICENSEE may terminate this Agreement upon ninety (90) days written notice.

      9.3      Default. If either party defaults in the performance of any of its material obligations hereunder and if such default is not corrected within thirty (30) days after written notice thereof by the other party, then the nondefaulting party, at its option, may, in addition to any other remedies it may have, terminate this Agreement by giving written notice of termination to the defaulting party.

      9.4      Survival. Articles 7.2, 7.3,7.4, 8, 9, 10, 11, 12, 13, 14 shall survive any termination or expiration of this Agreement.

10.      INDEMNIFICATION

      10.1     By D2. D2 agrees to indemnify and hold LICENSEE harmless against any cost, loss, liability, or expense (including attorney's fees) arising out of any breach of D2's warranties hereunder, or out of third party claims against LICENSEE alleging that the Licensed Technology, or LICENSEE's use or distribution of the Licensed Technology as set forth in this Agreement, infringes any third party's patent, trade secret, copyright of other intellectual property right in any country, provided that LICENSEE shall (i) notify D2 promptly in writing of such claims, and (ii) give D2 sole control of the defense or settlement of such claims. D2 shall not be liable for any claims to the extent that such claims arise out of the LICENSEE's unauthorized modifications of the Licensed Technology, and not out of the Licensed Technology as delivered by D2 to LICENSEE. If the Licensed Technology, or any part thereof, is

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adjudicatively determined to be, or in either party's reasonable opinion will be, the subject of any claim, suit or proceeding for infringement of any third party's patent, copyright or trade secret in any country, or if the distribution of use of the Licensed Technology is enjoined, then D2 may, at D2's sole option and expense, (i) obtain for LICENSEE and its distributors, resellers and customers the right to distribute or use the Licensed Technology under such third party patents, trade secrets, copyrights or other intellectual property rights, or (ii) replace the Licensed Technology with other software of equivalent or superior functionality, or (iii) suitably modify the Licensed Technology to avoid such infringement. In the event that D2 is unable to carry out the options set forth in (i), (ii) and (iii) of the proceeding sentence, at the option of Licensee D2 may terminate this Agreement and refund all amounts paid by LICENSEE to D2 hereunder; provided, that such termination shall have no effect on the rights of end users to use LICENSEE products, incorporating any





Licensed Technology, which were acquired by such end users prior to such termination.

11.      LIMITATION OF LIABILITY

      IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR SUCH OTHER PARTY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL D2'S LIABILITY HEREUNDER EXCEED THE TOTAL AMOUNT PAID OR OWED BY LICENSEE TO D2 UNDER THIS AGREEMENT.

12.      CONFIDENTIALITY.

      12.1     Confidential Information. As used in this Agreement, the term Confidential Information shall mean any information disclosed by one party to another pursuant to this Agreement which is marked as confidential or proprietary, or, if disclosed orally, is designated as confidential at the time of disclosure and is subsequently reduced to a writing which is marked as confidential or proprietary and is provided to the receiving party within thirty (30) days after such oral disclosure.

      12.2     Confidentiality. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as set forth herein, and shall use reasonable efforts not to disclose such Confidential Information disclosed to it by the other party under this Agreement. Each party shall promptly notify the other party of any actual or suspected misuse or unauthorized disclosure of such other party's Confidential Information.

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      12.3     Exception. Not withstanding the above, neither party shall have liability to the other party with regard to any Confidential Information of such other party which the receiving party can demonstrate:

                        (i)      was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party;

                        (ii)     was known to the receiving party, at the time of disclosure, as demonstrated by files in existence at the time of disclosure;

                        (iii)    was disclosed with the prior written approval of the disclosing party;

                        (iv)     was, is presently or may be in the future  independently developed by the receiving party without any use of the Confidential Information of any other party, as demonstrated by files created at the time of such independent development;

                        (v)      became known to the receiving party, without restriction, from a source other than the disclosing party without breach of this Agreement by the receiving party and otherwise not in violation of the disclosing party's rights;

                        (vi)     has been disclosed to third parties by the disclosing party without restrictions similar to those contained in this Agreement; or

                        (vii)    is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party shall provide prompt written notice thereof to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

      12.4     Return of Confidential Information. Upon expiration or termination of this Agreement each party shall upon request promptly return all tangible Confidential Information received from the other party.

      12.5     Survival of Confidentiality Obligations. This Article 12 will survive the termination of this Agreement, for any item of Confidential Information, for five (5) years after the disclosure of such Confidential Information to the receiving party under this Agreement.

13.      CONFIDENTIALITY OF AGREEMENT.

      D2 and LICENSEE agree that the terms and conditions of this Agreement shall be treated as confidential and shall not be disclosed to any third party without the

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prior written consent of the other party.  Notwithstanding the statements above in this Article 13, any party may disclose any of the terms and conditions of this Agreement;

                        (i)      as required by any court of other  governmental body;

                        (ii)     as otherwise required by law (including  without limitation with regard to any registration statement filed by a party with the Securities and Exchange Commission);

                        (iii)    to legal counsel of the parties;





                        (iv)     in confidence, to accountants, banks, and financing sources, and other advisors or consultants of the parties;

                        (v)      in connection with the enforcement of this Agreement or rights under this Agreement;

                        (vi)     in confidence, in connection with an actual or proposed license, merger, acquisition, or similar transaction;

                        (vii)    which have been previously disclosed in a joint press release by the parties hereto, or

                        (viii)   in confidence, to a third party to the extent reasonable necessary to permit the consideration of a bona fide collaboration which would involve rights, obligations or limitations arising under this Agreement, provided that such collaboration is not prohibited under this Agreement.

      In the event of any disclosure pursuant to (i) or (ii) above, the disclosing party shall use all reasonable efforts to obtain confidential treatment of materials so disclosed. The parties shall in good faith consult regarding the text of any proposed public announcement regarding this Agreement or the terms and conditions hereof before such announcement is actually made. Any press release to be issued in connection with the terms and conditions of this Agreement must be approved in advance by both parties.

14.      EXPORT RESTRICTIONS

      LICENSEE's distribution of products incorporating Licensed Technology shall be subject to all United States laws and regulations governing the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States. LICENSEE shall not export any such products without first

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obtaining all required licenses and approvals from the appropriate government agencies.

15.      GENERAL

      15.1     Governing Law. This Agreement shall be governed by and interpreted in accordance within the laws of the State of New York without reference to conflicts of laws provisions.

      15.2     Venue. The parties agree that any litigation arising out of this Agreement shall be brought in the state courts in Delaware.

      15.3     Partial Invalidity. If any provision in this Agreement shall be found or be held to be invalid or unenforceable in any jurisdiction in which this Agreement is being performed, then the meaning of said provision shall be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it shall be severed, solely in such jurisdiction, from the remainder of this Agreement, which shall remain in full force and effect. In such event, the parties shall negotiate, in good faith, a substitute, valid and enforceable provision, effective solely in such jurisdiction, which most nearly effects the parties' intent in entering into this Agreement.

      15.4     Relationship of the Parties. D2 and LICENSEE are independent contractors under this Agreement. Nothing contained in this Agreement is intended to, nor is it to be construed so as to, constitute D2 and LICENSEE as partners or joint ventures with respect to this Agreement. Employees of any party remain employees of said party and shall at not time be considered agents of or to be obligated to render a fiduciary duty to the other party.

      15.5     Modification. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement shall be valid or binding on any party unless the same shall have been mutually assented to in writing by both parties.

      15.6     Waiver. The failure of any party of enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other parties of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by any party of any provision, condition or requirement of this agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

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      15.7     Assignment. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. No party may assign any of its rights, obligations or privileges (except by operation of law or other corporate reorganization) hereunder without the prior written consent of the other party, which shall not be unreasonable withheld, provided, that any party shall have the right to assign its rights, obligations and privileges hereunder to a successor in business or an acquirer of all or substantially all of its business or assets to which this Agreement pertains without obtaining the consent of the other party.

      15.8     Notices. Any notice required or permitted to be given by any party under this Agreement shall be in writing, shall be addressed to the President of D2, or to the President of LICENSEE, and shall be personally delivered or set by certified or registered letter, or by telecopy confirmed by registered or certified letter, to the receiving party at its address first set forth above, or such new address as may from time to time be supplied hereunder by the receiving party. Notices will be deemed effective upon receipt.





      15.9     Force Majeure. Notwithstanding anything else in this Agreement, no default, delay or failure to perform on the part of any party shall be considered a breach of this Agreement if such default, delay or failure to perform is shown to be due to causes beyond the reasonable control of the party charged with a default, including, but not limited, causes such as strikes, lockouts or other labor disputes, riots, civil disturbances, actions or inactions of governmental authorities or suppliers, epidemics, war, embargoes, were weather, fire, earthquakes, acts god, acts of the public enemy or nuclear disasters; provided, that for the duration of such force majeure the party charged with such default must continue to use all reasonable efforts to overcome such force majeure.

      15.10    Entire Agreement. The terms and conditions contained in this Agreement constitute the entire agreement between the parties and supersede all previous agreements and understandings, whether oral or written, between the parties hereto with respect to the subject matter hereof.

      IN WITNESS WHEREOF, the parties hereto have caused this agreement to be signed by duly authorized officers or representatives as of the date first above written.

LICENSEE                                   D2 TECHNOLOGIES, INC.

- ---------------------------------            -----------------------------------

BY: /s/ Dick Swee                            BY: /s/ David Y. Wong     -----------------------------                -------------------------------

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PRINT NAME: Dick Swee                      PRINT NAME: David Y. Wong             ---------------------                      -----------------------

TITLE: VP Engineering                      TITLE: President        --------------------------                 ------------------------------

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                                 EXHIBIT A

                     LICENSED TECHNOLOGY SPECIFICATION

Basic Services:

The Basics Services algorithm group shall include the following list of standard D2 products with LICENSEE required modifications as specified in the attached Specification and the Contract for Products and Services, dated August 6, 1997:

      DTMF Detection and Removal Algorithm                  5007-54A          Universal Tone Detection Algorithm                    50030-54A          Multifrequency Tone Detection Algorithm               50028-54A          Tone Generation Algorithm                             50015-54A          Voice Activity Detection and AGC                      50013-54A

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                           Exhibit A continued.

Detailed Signal Processing Algorithm Specification

A.1      HDLC Communications

Not included as Licensed Technology.

A.2      Voice Activity Detection

Voice Activity Detection (VAD) detects voice activity, adapts to background ambient or line noise as well as the presence of echo, classifies voice activity as early versus sustained, and assigns an effort level to the speaker that is independent of network loss.





This module is used to detect voice activity in the CP Detect state.

A.2.1    Functional requirements:

The Voice Activity Detector discriminates voice activity generated by a caller from background noise (acoustic and line noise) as well as echo and sidetones reflected back to the receive voice path. It also provides an effort level quantity that indicates the level of effort of the caller. The functional and performance requirements are specified to cover a wide range of applications, such as voice activated recordings (as in voice messaging), outbound call classification, digital speech interpolation (DSI), and voice conferencing.

1.       The Voice Activity Detector classifies every block of voice data (8 ms          long) as port active (early detect), speaker active (port          sustained), and not active.

2.       It provides a measurement that approximates the level of effort exerted          by the caller. Such an approximation is made by normalizing the short          term RMS of the voice signal by a longer term RMS value. The effort          level varies between -32 dB and 31 dB, and is at 0 dB when the speaker          is speaking at his/her normal level.

3.       The Voice Activity Detector adapts to background noise up to -24 dBm.          Adaptation is 200 ms when the noise level drops, and is approximately          1000 ms when noise rises.

4.       The Voice Activity Detector screens out sidetone or echo as speech up          to an ERL of -26 dB.

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A.2.2    Performance Requirements:

The accuracy of the voice Activity detector is measured by the rate of false detection (i.e. classifying noise or echo as voice activity) and clipping (i.e. classifying voice activity as noise or echo) under different ambient noise and echo conditions. Port active detection under different ambient noise conditions:

1.       No perceptible clipping at quiet to modest noise levels of -50 dBm to          -40 dBm with nominal levels of speech activity (-20 dBm average power          over 2 seconds of speech). No more than 5% of voice onsets is clipped          for noisy conditions (noise level from -40 dBm to -30 dBm).

2.       No more than 1% of silence periods is detected as speech for the          modest noise condition. No more than 2% of silence is detected as          port active for noisy conditions.

3.       The performance goals above is met when noise levels change during the          test.

Speaker active detection under different ambient noise conditions:

1.       Speech activity that lasts more than tSUSTAIN is detected as          Sustained or Speaker Active.

2.       The clipping requirements is better than Port Activity detection.          Fewer than 0.5% of onsets/hour (2.5 per hour) for modest noise          condition (-45 dBm) and fewer than 2% (10 per hour) for high noise          condition (-35 dBm) have perceptible clipping.

3.       False detection performance (i.e., detecting noise as speaker active)          exceeds those of port activity due to tSUSTAIN criteria. No more than          1% (36 seconds per hour) of noise segments is misclassified as          sustained for modest noise conditions, and no more than 2% (72          seconds per hour) of silence is detected as port active for noisy          conditions.

Port active and Speaker active detection in the presence of echo:

1.       Less than 1% of residual echo is detected as port active - (i.e. 36          sec. per hour) during normal operation of canceller.

2.       Less than 0.1 % (i.e. 3.6 sec per hour) of residual echo is detected as          speaker active or port sustained during normal operation of          canceller.

3.       Clipping of input speech in the presence of echo is no higher than          clipping in the presence of modest to high level of noise.

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A.3      DTMF Detection

A.3.1    Functional requirements:

Table A-1 specifies the nominal frequencies for the DTMF digits that must be detected.

      --------------------------------------------------------------                                     Nominal High Group Frequencies (Hz)                                     1209      1336       1477      1633          --------------------------------------------------------------            Nominal        697        1         2          3         A





       Low Group       770        4         5          6         B          Frequencies      852        7         8          9         C             (Hz)          941        *         0          #         D          --------------------------------------------------------------

                    Table A-1: Nominal DTMF Frequencies

1.       Detect the presence of all 16 DTMF digits that are produced by          different phones on the market under a broad range of network          conditions.

2.       DTMF digit information is provided as soon as the minimum duration is          met. This information is called leading edge detection. This allows the          earliest possible response to the digit, such as stopping voice output.

3.       The trailing edge of a DTMF digit must be detected. This allows the          system to delay any response (such as playing out voice) to the digit          until the user has released the DTMF key. The criteria selected for          trailing edge detection will debounce DTMF digits.

4.       The DSP reports leading and trailing edge in the 8 ms block that they          are detected.  DTMF events are not buffered.

A.3.2    Performance requirements:

Table A-2 consists of performance requirements taken from EIA-464A and Bellcore TR-TSY-000181. Also shown is D2's DTMF performance requirements, which is a superset of the EIA and Bellcore requirements.

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- --------------------------------------------------------------------------------------------------------------------                                                 Requirement - -------------------------------------------------------------------------------------------------------------------- Characteristic                Bellcore                      EIA/TIA-464A                                 D2 - --------------------------------------------------------------------------------------------------------------------                                                                                   Frequency Deviation           +/-1.5% must accept;          +/-1.5% must accept;          Configurable choice of                               +/-3.5% must reject           +/-3.5% must reject           four sets of must                                                                                           accept/must reject:                                                                                           +/-2.0% accept to +/-3.0%                                                                                           reject; +/-2.5% accept to                                                                                           +/-3.5% reject; +/-3.0%                                                                                           accept to +/-4.0% reject;                                                                                           +/-3.5% accept to +/-4.5%                                                                                           reject. - -------------------------------------------------------------------------------------------------------------------- Minimum Tone                  40 ms must accept; 23         40 ms must accept             Configurable from 24 Duration                      ms must reject                                              to 80 ms - -------------------------------------------------------------------------------------------------------------------- Minimum Interdigital          40 ms                         40 ms                         Configurable from 24 Interval                                                                                  to 80 ms - -------------------------------------------------------------------------------------------------------------------- Minimum Cycle Time            93 ms                         93 ms                         Configurable from 48                                                                                           to 160 ms - -------------------------------------------------------------------------------------------------------------------- Accept Levels                 0 to -36 dBm must             0 to -25 dBm must             0 dBm to configurable                               accept, -55 dBm must          accept                        minimum (-25 to -45                               reject                                                      dBm range) - -------------------------------------------------------------------------------------------------------------------- Twist (ratio of high          -8 to +4 dB                   -8 to +4 dB                   Separately group power to low)                                                                       configurable positive                                                                                           and negative twists:                                                                                           +/- 4, 6, 8, 10, and 12 dB - -------------------------------------------------------------------------------------------------------------------- Bellcore talkoff tape         Fewer than 670 total          -                             Fewer than 20 talkoffs                               talkoffs; fewer than                                        (with default                               330 talkoffs of digits 0-                                   configuration of 2.5%                               9; fewer than 170                                           to 3.5% frequency                               talkoffs of signals *                                       deviation; 40 msec min                               and #.                                                      tone duration; +/- 8 dB                                                                                           twists; -45 dBm min                                                                                           accept level) - -------------------------------------------------------------------------------------------------------------------- Mitel talkoff tape            -                             -                             0 talkoffs (with default                                                                                           configuration) - -------------------------------------------------------------------------------------------------------------------- SNR                           23 dB                         15 dB                         15 dB - -------------------------------------------------------------------------------------------------------------------- Impulse Noise                 Fewer than 14 missed          Fewer than 10 errors          Pass both Bellcore and                               or split digits in            in 10,000 tones for EIA       EIA/TIA-464A                               Bellcore Impulse Noise        test #1; fewer than 500       impulse noise                               Tape No. 201                  errors in 10,000 tones        requirements                                                             for test #2 - --------------------------------------------------------------------------------------------------------------------

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- ------------------------------------------------------------------------------------------------------------------- Echo                          16 dB Signal-to-Echo          10 dB Signal-to-Echo          Pass both Bellcore and                               ratio at 20 ms; 24 dB at      ratio at 20 ms                EIA/TIA-464A echo                               45 ms                                                       requirements - ------------------------------------------------------------------------------------------------------------------- Dial Tone                     DTMF Detection in the         DTMF Detection in the         Pass both Bellcore and                               presence of dial tone         presence of dial tone         EIA/TIA-464A                               at -15 dBm per dial           at -16 dBm per dial           requirements for                               tone frequency                tone frequency                detection of DTMF                                                                                           digits in the presence                                                                                           of dial tone - -------------------------------------------------------------------------------------------------------------------

                 TABLE A-2: DTMF Performance Requirements

Other performance requirements:

1.       A leading edge of DTMF digit is signaled during the block in which the          minimum duration is met, and the trailing edge is signaled during the          block in which the minimum debounce interval is met.

2.       Talk-down: DTMF detection must work reliably in the presence of echo          (for the maximum allowable output voice level) and with varying levels          of DTMF signals (due to network loss). D2's DTMF detector combined with          the echo must meet the performance requirements of Figure A-I in the          presence echo generated by playing pause-removed voice (male and          female) at - 18 dBm ASL (averaged over 3 seconds) over a telephone          circuit with 15 dB echo return loss (ERL).

                               INSERT GRAPH

                Figure A-1: DTMF Talk-down Acceptance Curve

3.       Debounce test: Long tones (generated by hard key presses) must not be          detected as multiple tones in the presence of echo interference or line          noise. Combined with the echo canceller, the DTMF detector is required          to reliably debounce all DTMF digits above -18 dBm in the presence of          voice levels below -15 dBm (ASL) and a telephone circuit with echo          return loss (ERL) of 15 dB.

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4.       Double-talk talk-off: Many voice processing hardware or semiconductor          manufacturers significantly degrade the talk-off' performance of their          detector in the presence of voice echo or sidetone to achieve a high          level of talk-down performance. This strategy is acceptable in a pure          digit-in-voice-out scenario, but for voice conferencing or voice          recognition applications, voice could be present in the both the          transmit and receive path. In such cases, the DTMF detector must be          very robust against talk-off in double-talk situations. The talk-off          requirements for D2's DTMF detector under double-talk is fewer than 66          talkoffs for the Bellcore talk-off tape.

A.4      Tone Generation

The tone generation module can be programmed to generate any single, dual or amplitude modulated tone required to meet international telecommunications specifications. This functionality is provided by the GENF module, which produces the sum or product of two independently generated sine waves as its output. Each sine wave can be individually parameterized.

A.4.l    Functional requirements:

The GENF module is designed to generate a wide range of DTMF, Call Progress Signals, MF Rl/R2, and miscellaneous tones. In order to meet or exceed international telecommunication specifications, GENF must meet or exceed the following functional requirements.

1.       Independent arguments shall be supplied for each frequency for dual          tones that GENF generates. Single tones are generated by specifying          that one of the dual tone's frequencies is 0 Hz.

2.       Independent arguments shall be supplied for the carrier and modulation          frequencies for amplitude modulated tones that GENF generates.

3.       Arguments shall be supplied that allow the frequency of a tone to be          set in the range of 0 to 4000 Hz in 1 Hz units.

4.       Arguments shall be supplied that allow the output power to be set in          the range of +3 to -50 dBm in 0.5 dB steps.

5.       Arguments shall be supplied that allow an amplitude modulated tone's          modulation percentage to be set in the range of 0 to 300% in 1% units.

6.       The tone duration (make time) shall be specified in 1 ms units. Tone          durations shall be specified in the range of 0 to 8191 ms.

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7.       An unlimited tone duration shall be specified by setting the make          duration to -1.

8.       The silence duration between tones (break time) shall be specified in 1          ms units. Silence durations shall be specified in the range of 0 to          8191 ms.

9.       An unlimited silence duration shall be specified by setting the make          duration to -1 and setting both frequencies of a dual tone to 0 Hz.

10.      The GENF module shall allow tones to be generated that meet or exceed          EIA/TIA-464 requirement for DTMF and call progress tone generation.

11.      The GENF module shall allow tones to be generated that meet or exceed          CCITT Blue Book Volume VI Fascicle VI.4 recommendations Q.310-Q.490          requirements for MF R1 and R2 tone generation.

12.      The GENF module shall generate tones with one to three unique cadence          pairs (on/off pairs).

A.4.2    Performance Requirements

1.       Frequency accuracy shall exceed 1 Hz. 2.       Level accuracy shall exceed 0.5 dB. 3.       Timing information shall exceed 1 ms accuracy.

A.5      Universal Tone Detector

A.5.l    Overview

The Universal Tone Detector (UTD) is a high configurable tone detector. By changing parameters, this algorithm can classify a wide range of single and dual tone call progress signals generated in a wide variety of countries.

A.5.2    General

Since different tones need different detection heuristics, and tones may have multiple specifications, each tone is tagged with a tone category identifier.

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               -----------------------------------------------                   Tone Category             Call Progress Signal                   -----------------------------------------------                          1                  Modem                          2                  FAX CNG                          3                  Audible Ringback                          4                  Busy                          5                  Reorder or Congestion                          6                  Number Unobtainable                          7                  SIT                          8                  Dial tone                          9                  Unknown Tone                   -----------------------------------------------

                        Table A-3: Tone Categories

In addition to specifying a tone category, the parameters include a value that is returned to the application when the tone is detected. This parameter need not be unique. This allows multiple specifications to report the same tone event to the application. UTD is table driven. Using this approach, the tone detector searches parameter tables for a matching tone. When a tone matches, the tone code determines the heuristics necessary to completely classify the tone. Also, the tones must be specified in a way that a set of parameters corresponds to either a single tone, a dual tone, or an amplitude modulated tone.

                     ---------------------------------                         Code               Tone Type                         ---------------------------------                          0                 Single Tone                          1                 Dual Tone                          2                 Modulated Tone                         ---------------------------------

                    Table A-4: Call Progress Tone Types

A.5.3    General Functional Requirements

UTD functionally combines a single tone detector and a dual/modulated tone detector into a single module. UTD combines the results of these detectors into a single result. UTD has the following requirements.

1.       The DSP shall indicate that the first ringback has started after at          least 400 ms of ringback like signal has been processed, as long as no          other tone type is early detected. If more than one type of tone is          early detected, the first ringback reporting shall be delayed until          either cadence information disqualifies the other types, or tone          precedence is used as a 'tie-breaker'.





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2.       The DSP shall indicate ringback has stopped when ringback is no longer          detected.

3.       The DSP shall indicate a busy tone has been detected after the          requisite number of make and break intervals have been processed, and          no other tone category is still a candidate for detection.

4.       The DSP shall indicate a reorder tone has been detected after the          requisite number of make and break intervals have been processed, and          no other tone category is still a candidate for detection.

5.       The DSP shall indicate a number unobtainable tone has been detected          after the requisite number of make and break intervals have been          processed, and no other tone category is still a candidate for          detection.

6.       In the event that more than one tone is a candidate for detection,          detection is delayed until all characteristics that may disqualify any          of the candidates are tested (for example, waiting for multiple cadence          pairs to occur). If there is still more than one potential tone after          all differentiating features have been exhausted, then the tone with          the highest precedence is detected. Also, if the tone ceases prior to          singling out one candidate tone, then the tone with the highest          precedence is detected. Precedence is shown in Table A-3.

7.       The DSP shall supply an early detect flag. This flag shall be valid          after the detector has processed no more than 72 ms of a tone. If more          than one tone category is early detected, then the early detect flag          shall indicate the tone category with the highest precedence.

8.       The DSP shall indicate that a modem has been detected if a single tone          falls within the specified frequencies for modem tones, the minimum          make interval has been exceeded while the average tone power is in          excess of the minimum power requirement, and no other tone category is          still a candidate for detection.

9.       The DSP shall indicate that a FAX CNG tone has been detected if a          single tone falls within the specified frequencies for a CNG tone, the          requisite number of on/off cadences have been processed, and no other          tone category is still a candidate for detection.

10.      The DSP shall indicate that a SIT tone has been detected if at least          two of the three segments of possible SIT tones have been detected for          at least the minimum interval in excess of the minimum power          requirement.

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11.      The DSP shall indicate that an Unknown tone has been detected when it          has been determined that a tone has been detected that falls within the          specified frequencies for an Unknown tone, the minimum duration has          been exceeded, and the tone does not match and other category tones.

A.5.3.1 TONE DETECTOR PERFORMANCE REQUIREMENTS

A.5.3.1.1 Single Tones

There are four types of parameters that shall be used to control single tone detection. The variation of each parameter shall be limited by the constraints listed in Table A-5.

                                      ------------------------------                                          Minimum             Maximum          --------------------------------------------------------------          Frequency                       300 Hz              3300 Hz          --------------------------------------------------------------          Bandwidth                       0 Hz                1800 Hz          --------------------------------------------------------------          Duration                        100 msec            32760 msec          --------------------------------------------------------------          Minimum Power Level             -45 dBm             3 dBm          --------------------------------------------------------------

               Table A-5: Single Tone Detection Constraints

The frequency detection range shall be specified the Frequency and Bandwidth parameters. Figure A-2 shows the relationship of these parameters. Note that the bandwidth specification is symmetric about the center frequency. The Frequency and Bandwidth parameters define a must detect range. The detector shall not use frequency criteria to reject any tones which are within the range specified Frequency/Bandwidth parameters. Tones whose frequencies are outside but close to frequency range may be detected.

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                               INSERT GRAPH

Figure A-2: Frequency Domain Representation of tone parameters for a             Single Tone

If the Power Level of the detected parameter is greater than the minimum power specified by the parameters, the signal shall not be rejected by Power Level heuristics. Duration parameters are used to set the allowable duration of a tone. Minimum and maximum tone durations may be specified (make durations). Also, minimum and maximum silence durations between tones may be specified.

A.5.3.1.2         Dual Tones

Dual tones are created by summing two sinusoids. Since each tone can be isolated in the frequency domain, dual tones are specified as a pair of single tones. Parameters for each tone of a dual pair use the same constraints as single tones. Namely, frequency1 is the center frequency of the lower tone, and bandwidth1 specifies its frequency tolerance. The same is true for frequency2 and bandwidth2 for the high tone. Figure A-3 shows the definition of the frequency and bandwidth parameters for a dual tone.

                               INSERT GRAPH

Figure A-3: Frequency Domain Representation of Tone Parameters for a Dual Tone

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Not all dual tones are detectable by UTD. A dual tone shall detected only when the difference between the two component frequencies is greater than 10 Hz and less than 230Hz.

A.5.3.1.3         Amplitude Modulated Tones

Amplitude modulated tones are created by multiplying two sinusoids. When analyzed in the frequency domain, a modulated tone looks like three tones. Figure A-4 shows the frequency spectrum for a modulated tone.

The tone whose frequency is the average of the other tones is the carrier. The other two tones can be referred to as side lobes. For amplitude modulated tones, frequencyl and bandwidth1 specify the low sidelobe and its tolerance, while frequency2 and bandwidth2 specify the high sidelobe and its tolerance.

                               INSERT GRAPH

      Figure A-4: Frequency Domain Representation of Tone Parameters                          for an Amplitude Modulated Tone

As with dual tones, not all modulated tones will be detected by UTD. Modulated tones shall be detected if the difference between the carrier frequency and the sidelobes is between 10 Hz and 230 Hz.

A.5.3.l.4         Precedence

By assigning a detection precedence to the classification process, tone frequency ranges can overlap. When a tone's parameters fall into a range shared by two or more signals, the signal is classified as the one with the highest precedence.

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               -------------------------------------------                   Precedence            Call Progress Signal





               -------------------------------------------                       1                 Modem                       2                 FAX CNG                       3                 Audible Ringback                       4                 Busy                       5                 Reorder or Congestion                       6                 Number Unobtainable                       7                 SIT                       8                 Dial Tone                       9                 Unknown Tone                   -------------------------------------------

                   Table A-6: Tone Detection Precedence

Table A-6 shows the precedence of typical tones that the UTD module detects. Modem signals have the highest precedence, and Unknown tones have the lowest. Therefore, the frequency range of unknown tones can safely overlap the other tone ranges without causing tones to be misclassified. If the range for Unknown tones is allowed to be the maximum range allowed by the detector, any detected tone that is unclassified would be designated as Unknown.

A.5.3.1.5         North American Call Progress Signal Detection

Functional Requirements:

The tables below specify the frequencies, power levels, and cadence of the Bellcore and EIA-464A call progress tones.

- --------------------------------------------------------------------------------                         Frequency (Hz)                 Power Level (dBm) - --------------------------------------------------------------------------------     Name         350     440     480     620     Per Frequency        Combined - -------------------------------------------------------------------------------- Audible Ring              X       X               -22.5 +/- 1.5 - --------------------------------------------------------------------------------     Busy                          X       X        -27 +/- 1.5 - --------------------------------------------------------------------------------   Dial Tone       X       X                       -17.5 to  -15     -13 to -14.5 - --------------------------------------------------------------------------------   Intercept               X               X        -20 +/- 1.5 - --------------------------------------------------------------------------------    Reorder                        X       X        -27 +/- 1.5 - --------------------------------------------------------------------------------

      Table A-7: Call Progress Tone Frequency and Power Requirements

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- ------------------------------------------------------------------------------- Audible ring (ring-       repetition of the tone on for 0.8 to 2.2 seconds, and  back)                     off for 2.7 to 4.4 seconds - ------------------------------------------------------------------------------- Busy                      repetition of the tone on for 0.5+/-0.05 seconds, and                            off for 0.5 +/-0.05 seconds - ------------------------------------------------------------------------------- Dial                      steady uninterrupted - ------------------------------------------------------------------------------- Intercept                 repetition of an alternating sequence, of the two                           frequencies each being on for 0.16 to 0.30 seconds                           with a total cycle time of 0.5 +/-0.05 seconds - ------------------------------------------------------------------------------- Reorder (fast busy)       repetition of the tone on for 0.25+/-0.025 seconds,                            and off for 0.25+/-0.025 seconds - -------------------------------------------------------------------------------

                   Table A-8: Call Progress Tone Cadence

Performance Requirements:

1.       Frequency Deviation: Even though the generator is required to meet a          frequency tolerance per tone of +/-0.5%, the detector needs to allow          for a wider frequency tolerance due to variations in generators and          line distortions. The CP detector detects all tones whose component          frequencies deviate less than 1% from nominal.

2.       Twist: The CP detector detects all tones whose twist is less than +/-4          dB.

3.       Dynamic Range:  The CP detector exhibits a minimum dynamic range of           25 dB.

4.       Cadence: The CP detector must detect call progress tones whose cadence          is within +/-10%.

5.       Talkoff: The CP detector makes no false detections in 12 hours of          testing with voice at -15 to -18 dBm ASL.

A.5.3.1.6         FAX CNG Tone Detection

The standard connection protocol for automatic connection of a FAX modem requires that the calling FAX modem generate a calling tone (CNG). Hence for incoming calls, the EVP software has to detect a CNG signal. When CNG is detected, EVP alerts the Core Processor to redirect the call to a FAX machine or a FAX modem embedded within the call processing system.

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Functional Requirements:

Detect the presence of the FAX calling tone (CNG). A CNG signal is defined as follows.

                               INSERT GRAPH

                    Figure A-5: Fax calling tone (CNG)

      a)       The CNG tone is within 38 Hz of nominal frequency.

      b)       The timing tolerance of a CNG tone is +/-15%.

      c)       The power of a CNG tone is between 0 and -43 dBm.

Performance Requirements:

1.       The detector does not miss any CNG signals on a prerecorded tape          containing 50 CNG tone samples collected from S different FAX machines.

2.       The detector does not miss any CNG signals from the same FAX machines          connected to a local CO with a noise level of less than -45 dBm.

3.       The detector misses less than 0.5% of CNG signals (generated at -10          dBm) when compressed voice is output at a level of-15 dBm or less          (average over 3 seconds) into a network whose ERL is greater than 15          dB.

4.       The detector does not falsely detect more than 1 CNG tone per 5 hours          of voice (based on Bellcore recorded talk radio voice tapes.)

A.5.3.1.7         Modem Tone Specification

All answering modems that conform to the ITU V.25 answering sequence present a 2100 Hz tone 1.8 to 2.5 seconds after answering the telephone line. Figure A-6 and Figure A-7 show the timing of the answering tone (ANS). In Figure A-6, the 2100 Hz

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tone reverses phase every [tau] intervals. These phase reversals disconnect echo cancellers and echo suppressors from the network. According to ITU G.164, phase reversal shall be accomplished such that the phase is within 180 +/-10 degrees in 1 ms and that the amplitude of the 2100 Hz tone is not more than 3 dB below its steady state value for more than 400 musec.

                               INSERT GRAPH

        Figure A-6: Timing for Answering Modem with Phase Reversal

A timing diagram for an answering modem without phase reversal is shown in Figure A- 7. The timing is identical with that of phase reversing tone except for the reversal timing.

                               INSERT GRAPH

       Figure A-7: Timing for Answering Modem without Phase Reversal

Table A-9 contains the nominal frequency, power, and duration requirements for

                           ------------------------------------------------                               Minimum             Maximum              Unit          ---------------------------------------------------------------------          Frequency            2085                2115                 Hz          ---------------------------------------------------------------------          Duration             2.6                 4.0                  seconds          ---------------------------------------------------------------------          Power                -18.0               -6.0                 dBm0          ---------------------------------------------------------------------

generating modem tones as derived from V.25 and G.164.

               Table A-9: Modem Tone Generation Requirements





Performance Requirements:

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1.       The detector does not miss any modem answer tone on a pre-recorded tape          containing 50 modem answer tone samples collected from 5 different data          modems.

2.       The detector does not miss any modem answer tone signals from the same          data modem connected via a local CO with a noise level of less than -45          dBm.

3.       The detector does not miss more than 0.5% of modem answer tones          (generated at -10 dBm) when compressed voice is played at a level of          -15 dBm (ASL) or lower into a network connection with ERL greater than          15 dB.

4.       The detector does not falsely detect the presence of a modem answer          tone more than once per 5 hours of voice (using Bellcore recorded talk          radio voice tapes).

5.       There is no talkdown performance requirement. The near end is always          silent and does not interfere with far end modem ANS signals.

6.       There shall be fewer than 1 talkoff in 5 hours of call classification          when the detector is programmed with the recommended parameters.          Assuming that each call is resolved within an average time of 10          seconds, there shall be less than 1 talkoff in 1800 calls.

A.5.3.1.8         Three Tone Sequences

Most countries that generate Special Information Tones (SIT) use a three tone sequence. SIT sequences are generated by various central offices or common carrier switching points to indicate a problem with the dialed call. A SIT tone sequence generally precedes a recorded voice announcement such as the number you have dialed is no longer in service... and is provided specifically for the purpose of detection of the problem type by an automated device.

There are two popular types of SIT sequences. The first type is used mainly in Europe. It consists of a sequence of three tones of identical durations. The second type is the one used in North America. There are several North American SIT sequences that are encoded using various combinations of frequency and duration for each of the three tones. The encoding has been standardized by Bellcore.

Performance Requirements:

1.       The UTD shall handle both types of sequences.

2.       There is no talkdown performance requirement. The near end is always          silent and does not interfere with far end SIT signals.

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3.       There shall be fewer than 1 talkoff in 5 hours of voice when the          detector is programmed with the recommended parameters. Assuming that          each voice call is has an average of 2 seconds of voice, there shall be          fewer than 1 talkoff in 9000 calls.

A.5.3.1.9         Unknown Tone

Any single tone, dual tone, amplitude modulated tone or single tone sequence that is not classified as a CP, SIT, CNG or modem ANS tone, shall be reported as an unknown tone.

Performance Requirements:

1.       Talkdown performance requirement [TBD]

2.       There shall be fewer than 1 talkoff in 5 hours of voice when the          detector is programmed with the recommended parameters (minimum tone          duration 400 ms). Assuming that each voice call is has an average of 2          seconds of voice, there shall be fewer than 1 talkoff in 9000 calls.

A.6      Multifrequency Tone Detection (MFD)

The MFD algorithm module detects the presence of Rl, R2 Forward, and R2 Backward Multi frequency (MF) tones under a broad range of network conditions and under international telecommunications specifications.

A.6.1    Functional requirements:

Table A-10, Table A-11, and Table A-12 specify the nominal frequencies for the MF digits that must be detected.

- ----------------------------------------------------------------------- F1 (Hz)                             F2 (Hz)





           900         1100        1300        1500        1700                -------------------------------------------------------------   700          1            2           4           7         Spare       900         --            3           5           8         Spare      1100         --           --           6           9          KP        1300         --           --          --           0         Spare      1500         --           --          --          --          ST       - -----------------------------------------------------------------------                                                                         Table A-10: Nominal MF R1 Frequencies and corresponding digit definitions

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- ----------------------------------------------------------------------- F1 (Hz)                             F2 (Hz)              1500         1620        1740        1860       1980           -------------------------------------------------------------  1380          1            2           4           7         11  1500         --            3           5           8         12  1620         --           --           6           9         13  1740         --           --          --          10         14  1860         --           --          --          --         15 - -----------------------------------------------------------------------

Table A-11: Nominal MF R2 Forward Frequencies and corresponding combination                                      numbers

- ----------------------------------------------------------------------- F1 (Hz)                             F2 (Hz)              1020          900         780         660        540           -------------------------------------------------------------  1140          1            2           4           7         11  1020         --            3           5           8         12   900         --           --           6           9         13   780         --           --          --          10         14   660         --           --          --          --         15 - -----------------------------------------------------------------------

Table A-12: Nominal MF R2 Backward Frequencies and corresponding combination                                      numbers

1.       Be configurable to detect either R1, R2 forward, or R2 backward MF          digits on a per-call basis.

2.       Detect the presence of all 15 R1, 15 R2 Forward, and 15 R2 Backward          digits under a broad range of network conditions.

3.       MF digit information is provided as soon as the minimum duration is          met. This information is called leading edge detection. This allows the          earliest possible response to the digit, such as in compelled          signaling.

4.       The trailing edge of a MF digit must be detected. This allows the          system to delay any response (such as in compelled signaling) to the          digit until it is removed. The criteria selected for trailing edge          detection will debounce MF digits.

5.       The DSP reports leading and trailing edge in the 8 ms block that they          are detected. MF events are not buffered.

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A.6.2 R1 Detection Performance requirements:

Table A- 13 consists of MF R1 tone detection performance requirements taken from CCITT/ITU Q310-Q331 and Bellcore TR-NWT-000506. Also shown is D2's MF R1 performance requirements, which is a superset of the CCITT and Bellcore requirements.

- ------------------------------------------------------------------------------------------------------------------                                                                Requirement - ------------------------------------------------------------------------------------------------------------------ Characteristic                Bellcore                      CCITT/ITU                     D2 - ------------------------------------------------------------------------------------------------------------------                                                                                   Frequency Deviation           +/-(1.5% + 5 Hz) must         +/-1.5% must accept           Configurable choice of                               accept                                                      three sets of must                                                                                           accept frequency                                                                                           tolerance:                                                                                           +/-(1.5% + 5 Hz),                                                                                           +/-(1.5% + 10 Hz),                                                                                           +/-(1.5% + 15 Hz) - ------------------------------------------------------------------------------------------------------------------ Tone Duration                 KP signal >/= 54 ms           >/=30 ms must accept          Minimum duration is                               must accept;                               must reject                                                 steps, from 28 ms up.                               All others: >/=30 ms                                        Can be configured for                               must accept; /=30 ms must accept;                               must reject                                                 - -------------------------------------------------------------





----------------------------------------------------- Minimum Interdigital          Must accept                   Must accept                   Minimum interdigital Interval                      interdigital intervals        interdigital intervals        interval is configurable                               >/=25 ms.  Must bridge        >/=20 ms                      in 4 ms steps.  Can be                               interdigital intervals                                      configured for >/=20 ms                               - ------------------------------------------------------------------------------------------------------------------ Minimum Cycle Time            Up to 10 pulses per           -                             >10 pulses per second                               second (100 ms cycle                                        (                              time) - ------------------------------------------------------------------------------------------------------------------ Accept Levels                 0 to -25 dBm must             -                             Minimum power is                               accept                                                      configurable from -25                                                                                                                         frequency - ------------------------------------------------------------------------------------------------------------------ Twist (ratio of high          group power to low)           accept                        accept                        accept - ------------------------------------------------------------------------------------------------------------------ SNR (white noise)             20 dB                         -                             20 dB - ------------------------------------------------------------------------------------------------------------------ Impulse Noise                 Fewer than 14 missed          -                             Fewer than 14 missed                               or split digits in                                          or split digits in                               Bellcore Impulse Noise                                      Bellcore Impulse Noise                               Tape No. 201                                                Tape No. 201 - ------------------------------------------------------------------------------------------------------------------

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                                                                               - ------------------------------------------------------------------------------------------------------------------ Disturbing Frequencies        Detection in the              -                             Detection in the                               presence of 2A-B and                                        presence of 2A-B and                               2B-A modulation                                             2B-A modulating                               products 28 dB below                                        products 28 dB below                               each frequency                                              each frequency                               component level of the                                      component level of the                               signals.                                                    signals - ------------------------------------------------------------------------------------------------------------------

           Table A-13: MFD R1 Detection Performance Requirements

A.6.3    R2 Detection Performance Requirements

Table A- 14 shows the MF R2 tone detection performance requirements taken from CCITT/1TU Q400-490. The MFD module is required to pass all CCITT/ITU requirements.

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- -------------------------------------------------------------------------------------------------------- Characteristic                      CCITT/ITU Requirement               CCITT/ITU Requirement - --------------------------------------------------------------------------------------------------------                                                                    Frequency Deviation                 +/-10 Hz must accept                Configurable choice of three - --------------------------------------------------------------------------------------------------------                                                                         sets of must accept frequency                                                                         tolerance:                                                                         +/-10 Hz                                                                         +/-15 Hz                                                                         +/-20 Hz

- -------------------------------------------------------------------------------------------------------- Tone Duration                       Must reject signals - ----------------------------------------------------------------------------------------------- --------- Minimum response time for R2        detect delay + generate             detect delay + generate delay compelled signaling                 delay                                     detect delay + decision             detect delay + decision delay +                                     delay + generate delay - -------------------------------------------------------------------------------------------- ------------ Accept Levels                       -5 dBm0 to -31.5 dBm0 must          Minimum power is                                     detect;                             configurable from -25 dBm to                                     -38.5 dBm0 must reject              -45 dBm per frequency - -------------------------------------------------------------------------------------------------------- Twist (ratio of high group          power to low)                       adjacent frequencies;               for adjacent frequencies;                                                                         non-adjacent frequencies;           for non-adjacent frequencies                                     20 ddB twist must reject            20 dB twist must reject - --------------------------------------------------------------------------------------------------------

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- --------------------------------------------------------------------------------------------------------





Disturbing Frequencies             Must not falsely detect due to       Must not falsely detect due to                                    any one or more valid R2             any one or more valid R2                                    frequencies at -55 dBm per           frequencies at -55 dBm per                                    frequency.                           frequency.                                    In the presence of a valid R2        In the presence of a valid R2                                    tone, no missed detections and       tone, no missed detections and                                    no false detections due to any       no false detections due to any                                    of the remaining frequencies at      of the remaining frequencies at                                    20 dB below the highest of the       20 dB below the highest of the                                    MF tone pair.                        MF tone pair.  Must not falsely                                    Must not falsely detect due to:      detect due to:                                    1.  Any 1 or 2 pure sine waves,      1.  Any 1 or 2 pure sine waves,                                    each at -38.5 dBm0, 300-3400         each at -38.5 dBm0, 300-3400                                    Hz.                                  Hz.                                    2.  Any 1 or 2 pure sine waves,      2.  Any 1 or 2 pure sine waves,                                    each at -42 dBm, 300-3400 Hz.        each at -42 dBm, 300-3400 Hz.                                    3.  Forward detector: Any 2          3.  Forward detector: Any 2                                    pure sine waves, each at -5          pure sine waves, each at -5                                    dBm, 330-1150 Hz or 2130-3400        dBm, 330-1150 Hz or 2130-3400                                    Hz.                                  Hz.                                    4.  Backward detector: Any 2         4.  Backward detector: Any 2                                    pure sine waves, each at -5          pure sine waves, each at -5                                    dBm, 1300-3400 Hz.                   dBm, 1300-3400 Hz. - -------------------------------------------------------------------------------------------------------- Transmitted signal interference    Must not falsely detect due to       Must not falsely detect due to                                    generation of outgoing MF            generation of outgoing MF                                    digits.                              digits. - --------------------------------------------------------------------------------------------------------

           Table A-14: MFD R2 Detection Performance Requirements

A.7      MFcR2 compelled signaling

In order to pass the CCITT requirements for compelled signal timing, the following additional requirements are made on the MFD detector:

1.       The MFD detector shall detect the leading edge of an R2 digit after          processing no more than 24 ms of the digit.

2.       The MFD detector shall detect the trailing edge of an R2 digit after          processing no more than 16 ms of the silence following the digit.

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43

                                 EXHIBIT B

                       LICENSEE PRODUCT DESCRIPTION

Service Resource Module (SRM) for high density programmable switching systems.

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL

44

                                 EXHIBIT C

DEVELOPMENT, MAINTENANCE, AND RUNTIME LICENSE FEE SCHEDULE

DEVELOPMENT LICENSE FEES: LICENSED TECHNOLOGY FOR THE BASIC SERVICES SPECIFIED IN EXHIBIT A

Development license fees are specified in PO #104962.

50% of which has already been paid to D2 and the final 50% to be paid upon the delivery and acceptance of the Licensed Technology for Basic Services by Licensee in accordance with Article 4 of this Agreement.

MAINTENANCE FEES: LICENSED TECHNOLOGY FOR THE BASIC SERVICES SPECIFIED IN EXHIBIT A

The Maintenance Fee after the expiry of the Warranty period shall be $20,000 per year, starting from the date after the Warranty period (Contract Year),





renewable at the end of each Contract Year.

In the event that during the four consecutive calendar quarters which begin immediately after the start of a Contract Year, LICENSEE completes payments to D2 of one hundred thousand dollars in Runtime License Fees under this Agreement, D2 will apply a credit equaling to 100% of the Maintenance Fee against the Runtime License Fees of that Contract Year.

In the event that LICENSEE exercises the Buy Out option for Runtime License Fees, there shall be no Maintenance Fee for the first three years after the expiry of the Warranty period.

RUNTIME LICENSE FEES: LICENSED TECHNOLOGY FOR BASIC SERVICES SPECIFIED IN EXHIBIT A AND SIMPLE CONFERENCING TECHNOLOGY

A runtime license fee shall be paid for each SRM in the Licensee Product (Exhibit B) which contains the Licensed Technology for Basic Services and simple conferencing which does not require network echo cancellation technology (Exhibit A) sold by LICENSEE. Licensee Products which do not run the Licensed Technology are not subject to runtime license fees.

The runtime license fee is based on the number of ports of service that a customer can expect the SRM to provide. As such, this runtime license fee calculation may be used for an SRM with any number of DSP processors (DSPs), with any MIPS

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL

45

performance rating, as long as it is from the TI TMS320C54x, TMS320C55x, or TMS320C6x processor family.

Fee_per_SRM = Fee_per_Port * DSPs_per_SRM * Average_Ports_per_DSP

Where:

      Fee_per_SRM is the runtime license fee for each SRM.           Fee_per_Port is on Table 1.           DSPs_per_SRM is the number of DSPs on each SRM.          Average_Ports_per_DSP is defined below.

      -----------------------------------------------------------          total quantity of processors licensed          Fee_per_port          -----------------------------------------------------------                      1-5,000                               $2.00          -----------------------------------------------------------                   5,001 - 25,000                           $1.00          -----------------------------------------------------------                  25,001 - 50,000                           $0.75          -----------------------------------------------------------                   5,001 - 75,000                           $0.50          -----------------------------------------------------------                    > 75,000                                $0.00          -----------------------------------------------------------

                           Table 1. Fee per port

If LICENSEE commits to purchase licenses for a minimum of 10,000 processors for the first year after first customer shipments, the fee_per_port will be reduced for $1.00 for the first 5,000 processors.

The SRM will provide 5 Basic Services and simple conferencing (which does not require network echo cancellation):

      1.     DTG -- Digital Tone Generation (static channels and outpulsing)          2.     CPA -- Call Progress Analysis (with Voice Activity Detection)          3.-    DRC -- DTMF Detection          4.     MFR(1) -- Multifrequency Reception (1)          5.     MFCR2 -- Multifrequency Reception and Transmission, Compelled R2

To determine the Average ports per DSP, the completed software will be tested in a heavily-loaded VCO/20 to determine the maximum number of ports that a single DSP processor performing each of the Basic Services can reliably satisfy.  This

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL

46

maximum will be documented in Table 2 below, and will be encoded in software, to prevent a customer from exceeding it.

This maximum will vary depending on the DSP processor speed, so a separate measurement will have to be done for SRMs containing faster processors. Due to system limitations, this number will never exceed 63.

The number of ports supported for each of the Basic Services, per DSP processor, will be averaged (arithmetic mean) to create an average number of ports per DSP (Average_Ports_per_DSP). Because of the computational simplicity of the DTG Service, it will not be included in this calculation:

         Average_Ports_per_DSP = (#CPA + #DRC + #MFR1 + #MFCR2)/4

- --------------------------------------------------------------------------------      Service       Predicted            Measured             Included in





             Maximum # Ports      Maximum # Ports          Average? - --------------------------------------------------------------------------------        DTG            63             To be measured         Not included - --------------------------------------------------------------------------------        CPA            30             To be measured           Included - --------------------------------------------------------------------------------        DRC            30             To be measured           Included - --------------------------------------------------------------------------------       MFR1            30             To be measured           Included - --------------------------------------------------------------------------------       MFCR2           30             To be measured           Included - --------------------------------------------------------------------------------

               TABLE 2.  MEASURED PERFORMANCE OF SERVICES

CAP: The runtime license fees is fully paid up after it reaches the CAP, which is the cumulative runtime license fees paid by LICENSEE for the first 75,000 processors as specified in Table 1 above. The CAP is cumulative across the Texas Instruments TMS320C54x, TMS320CSSx, and TMS320C6x, and other TI processors based on the same core processor architecture.

BUYOUT OPTION: Within the Warranty period, LICENSEE may elect to pay D2 a sum of $1,400,000 as a one time paid-up runtime license fees for the Basic Services specified in Exhibit A.

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL

47

                                 EXHIBIT D

               MODEL LICENSEE AGREEMENT FOR LICENSEE PRODUCT

SOFTWARE LICENSE

Licensed Technology incorporated in LICENSEE Product, together with Updates and New Versions thereof, are provided to LICENSEE's Customer under a non-exclusive worldwide license subject to the following terms:

1. LICENSEE's Customer shall have the right to distribute copies of the Licensed Technology to end users in Object Code form either directly or indirectly through others for use in connection with the LICENSEE Product. LICENSEE's Customer shall require that such end users agree to protect D2's and LICENSEE's intellectual property rights in the Licensed Technology as set forth in this LICENSEE's Customer Agreement.

2. LICENSEE's Customer shall have the right to reproduce the Licensed Technology for distribution and make a reasonable number of copies of the Licensed Technology for backup or archival purposes.

3. LICENSEE's Customer shall not have the right to modify, reverse engineer, decompile or derive Source Code from the Licensed Technology, nor shall LICENSEE's Customer permit any third party to do so. LICENSEE's Customer shall not have the right to disclose the Licensed Technology except as permitted herein.

4. LICENSEE's Customer shall have the right to transfer a licensed copy of the Licensed Technology to a third party provided LICENSEE's Customer does not retain any copies of such licensed copy and the third party agrees to abide by the terms and conditions of this LICENSEE's Customer Agreement. All Licensed Technology must be transferred upon a change in title of any hardware in which it was installed.

5. LICENSEE's Customer agrees that D2 or LICENSEE retain the entire right and title to Licensed Technology.

6. The provisions of this Article (paragraphs 1 through 6 preceding) shall survive the termination or expiration of this LICENSEE's Customer Agreement.

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                                 EXHIBIT E

1.       Development and Back-up Computers

      Computer Manufacturer and Model    Serial Number      Dev/Backup

(1)      --                    --

(2)      --                    --

(3)      --                    --

1.       FORMAT OF Licensed Software Media

(1)      --                    --

(2)      --                    --

(3)      --                    --

Date:





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49

                                 EXHIBIT F

                       Acceptance Test Specification

To be provided by D2 and LICENSEE within 90 days of effective date of this Agreement.

Software License                                           D2 Technologies, Inc. and Maintenance Agreement       August 4, 1997                      CONFIDENTIAL 
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: The acceptance specification shall be completed no later than 90 days after the effective date of this Agreement and shall be attached to this agreement as Exhibit F.


Question: Exhibit 10.6 EXECUTION COPY MEDIA LICENSE AGREEMENT THIS MEDIA LICENSE AGREEMENT (this Agreement) is made and effective as of the date of the Closing (as defined in the Merger Agreement (as defined below)) (the Effective Date), between NATIONAL FOOTBALL MUSEUM, INC., an Ohio non-profit corporation, doing business as Pro Football Hall of Fame (PFHOF), HOF Village Media Group, LLC (the Village Media Company), a Delaware limited liability company that is a wholly-owned subsidiary of HOF Village, LLC, a Delaware limited liability company (HOFV) and, solely for purposes of Section 4.5, HOFV; each a Party and collectively, the Parties. RECITALS A. In connection with a Master Transaction Agreement dated December 11, 2018, as amended of even date herewith and as it may be amended or otherwise modified from time to time (the Master Transaction Agreement), by and among the Parties and certain other parties, as well as other agreements referenced in the Master Transaction Agreement relating to the development of the Hall of Fame Village Complex (the Village), the Parties have determined that it is appropriate and in the Parties' best interests to enter into a media license agreement for the exploitation of certain PFHOF assets by the Village Media Company and its Affiliates. B. The Parties further desire to provide for the sharing of media-related opportunities between the Village Media Company and Hall of Fame Media Group, LLC, an Ohio limited liability company and indirect wholly-owned subsidiary of PFHOF (the HOF Media Company). AGREEMENT NOW THEREFORE, based upon the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged (including but not limited to consideration outlined in the Master Transaction Agreement), and intending to be legally bound hereby, the Parties agree as follows: 1. DEFINITIONS 1.1 Advisory Board shall mean a board of advisors to the Village Media Company and the HOF Media Company made up of four (4) individuals - (i) the Chief Executive Officer of HOFV, (ii) the Chief Executive Officer of PFHOF, (iii) the Chief Executive Officer of the Village Media Company and (iv) the Executive Director of the HOF Media Company; provided, that if the Chief Executive Officer of the Village Media Company and the Executive Director of the HOF Media Company are the same individual (as is expected as of the Effective Date), then the fourth member of the Advisory Board shall be appointed by unanimous agreement of the foregoing individuals. The Advisory Board's function shall be to facilitate the consideration of opportunities presented to either or both of the Village Media Company and the HOF Media Company.

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





1.2 Affiliate with respect to the Village Media Company shall mean any of HOFV and any of the following entities so long as it is directly or indirectly controlled by, or is under common control, with HOFV: HOF Village Stadium, LLC; HOF Village Parking, LLC; HOF Village Land, LLC; HOF Village Youth Fields, LLC; HOF Village Hotel I, LLC; HOF Village Sports Business, LLC; Youth Sports Management, LLC; HOF Village Parking Management I, LLC; HOF Village Residences I, LLC; HOF Village Center for Excellence, LLC; HOF Village Center for Performance, LLC; HOF Experience, LLC; and JCIHOFV Financing, LLC. Affiliate with respect to PFHOF shall mean any entity that is directly or indirectly controlled by, or is under common control with, PFHOF. For purposes of this definition, control means an equity or income interest of fifty percent (50%) or more, or the possession of the power, directly or indirectly, to direct or cause the direction of the management and policies of the Affiliate, whether through the ownership of voting securities, by contract, or otherwise. 1.3 Exploit or Exploitation means to reproduce, distribute, digitally transmit, publish, publicly perform or otherwise display via any and all means of video or audio-visual media, or means of distribution except as set forth in this Agreement as to manner, frequency or duration of use including, but not limited to: film, television, streaming, short-form streaming, social media, SVOD, IVOD, pay per view, OTT, theatrical professional/non-professional productions, location based entertainment, music, publishing, holographic mediums, projection mapping, haptic mediums, as well as any marketing, advertising, and promotional activities thereof in any medium currently existing or hereinafter created. 1.4 Merger Agreement means that certain Agreement and Plan of Merger, dated September 16, 2019, by and among GPAQ Acquisition Holdings, Inc., a Delaware corporation, Gordon Pointe Acquisition Corp, a Delaware corporation, GPAQ Acquiror Merger Sub, Inc., a Delaware corporation, GPAQ Company Merger Sub, LLC, a Delaware limited liability company, HOFV, and HOF Village Newco, LLC, a Delaware limited liability company. 1.5 Person means an individual, corporation, partnership, association, limited liability company, joint venture, trust, estate, joint stock company or other similar organization, government or political subdivision thereof, or any other entity. 1.6 PFHOF Works shall mean the written, audio, visual, audiovisual, or choreographic works currently or hereafter owned by or freely sub-licensable by PFHOF.

2

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





2. GRANT OF RIGHTS 2.1 Subject to the terms of this Agreement (including, without limitation, Sections 2.3, 2.4, 2.6 and 5 below), PFHOF hereby grants to the Village Media Company a worldwide, non-exclusive, limited, non-sublicenseable and non-assignable (except to the extent set forth in this Agreement) right and license to (a) Exploit the PFHOF Works and (b) edit, supplement or otherwise adapt, incorporate or otherwise utilize, the PFHOF Works to create, produce and Exploit new, original work(s) (each such work in this clause (b), a HOFV Work). For the avoidance of doubt, after the termination or expiration of this Agreement, the Village Media Company and its permitted licensees shall continue to have the right to fully exploit, use, and Exploit the HOFV Works for the length of the term of the license granted by PFHOF in connection with such HOFV Work pursuant to Section 2.3; provided that the length of the term of such license shall be a minimum of five (5) years. Any HOFV Works created pursuant to this Agreement shall exclusively be owned by the Village Media Company; provided, however, that, (i) PFHOF shall own all right, title, interest, and copyright in and to the underlying PFHOF Work(s) as further set forth in Section 2.5 and (ii) the Village Media Company's ownership is subject in all events to any Rights Restrictions and the terms of the license (including the term of such license) granted by PFHOF in connection with such HOFV Work pursuant to Section 2.3. 2.2 In addition to any rights set forth herein, PFHOF shall have the right and license to Exploit HOFV Works, at no fee or charge to PFHOF or any of its Affiliates, for educational, not-for-profit purposes aligned with the mission of PFHOF which usage shall not diminish the value of the Village Media Company's or its Affiliates' Exploitation of such HOFV Work in accordance with the terms of this Agreement. HOFV must preapprove any of PFHOF's proposed plans to Exploit the HOFV Works, such approval not to be unreasonably withheld. 2.3 Notwithstanding anything to the contrary in this Agreement, PFHOF shall have the right to approve (in its sole and absolute discretion) any and all usage of, and Village Media Company's (and its Affiliates' and permitted licensees') plans to Exploit, the PFHOF Works (including any inclusion of any PFHOF Work in any HOFV Work and the term of such usage). Prior to any initial Exploitation of a PFHOF Work, the Village Media Company, at its own expense, must furnish to the Advisory Board and PFHOF a written notice (Notice) which Notice will set forth the Village Media Company's proposal for Exploitation of a PFHOF Work (whether by itself or as incorporated into a HOFV Work), which proposal shall at a minimum specify the applicable PFHOF Work(s) to be Exploited by the Village Media Company, the nature and location of the proposed Exploitation and a pro forma specifying the economics and approximate time period related to such Exploitation. The Advisory Board shall, within fourteen (14) days of its receipt of the Notice, make a recommendation to PFHOF to either approve or reject such proposal as set forth in the Notice. PFHOF shall, within fourteen (14) days of its receipt of the recommendation of the Advisory Board, either approve or reject the proposal as set forth in the Notice. If PFHOF does not approve the proposal as set forth in the Notice within fourteen (14) days of PFHOF's receipt of the recommendation of the Advisory Board, such proposal shall be deemed rejected by PFHOF. In the event that a proposal is rejected (or deemed rejected) by PFHOF, PFHOF shall, upon request from the Village Media Company, provide a written explanation (with reasonable detail) outlining its reason for rejecting such proposal. Upon PFHOF's approval with respect to any such proposal, the Village Media Company (and its Affiliates and permitted licensees) may Exploit the applicable PFHOF Work(s) so long as such Exploitation is in conformance with the proposal as approved by PFHOF (including any proposed sublicenses in accordance with Section 2.4).

3

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





2.4 The Village Media Company shall have the right to sublicense (a) the production and creation of the HOFV Works and (b) Exploitation of the PFHOF Works hereunder to any of its Affiliates; provided, that, Village Media Company shall (x) cause such sublicenses to comply with all terms and conditions of this Agreement and (y) not be relieved of any of its obligations under this Agreement as a result of any such sublicense, and will be primarily responsible for any acts or omissions of such sublicensees. 2.5 Notwithstanding anything to the contrary contained in this Agreement, as between PFHOF (and its Affiliates), on the one hand, and the Village Media Company (and its Affiliates), on the other hand, PFHOF shall own and control all right, title, interest, and copyright in and to the PFHOF Works, including, without, limitation, any and all PFHOF Work(s) utilized by, or incorporated in, any HOFV Work and all of its constituent elements, which shall include, without limitation, all feeds recorded by or on behalf of PFHOF in connection with the production of such PFHOF Work, all event footage contained therein and all information and data concerning such PFHOF Work, and all derivatives of the foregoing (except for derivatives that constitute HOFV Works, which ownership shall be retained by the Village Media Company). The Village Media Company agrees, on behalf of itself and its Affiliates and their permitted sublicensees, that all uses by the Village Media Company or any of its Affiliates or their respective permitted sublicensees of the PFHOF Work shall inure to the benefit of PFHOF, and any right that may accrue to the Village Media Company, any of its Affiliates or any of their respective permitted sublicensees related thereto and any goodwill associated therewith are hereby granted and assigned to PFHOF or its designee. Notwithstanding the foregoing, to the extent any HOFV Work incorporates any HOFV trademarks, service marks, or trade dress (HOFV Trademarks), use of such HOFV Trademarks shall inure solely to HOFV's benefit. The Village Media Company shall not, and shall cause its Affiliates and their respective permitted sublicensees not to, whether during the Term or thereafter, challenge (a) the rights of PFHOF in and to any PFHOF Work, (b) the validity of any PFHOF Work, (c) PFHOF's right to grant rights or licenses relating to the PFHOF Works or (d) the validity, legality, or enforceability of this Agreement. 2.6 The Village Media Company acknowledges the existence of agreements in effect as of the Effective Date between PFHOF and certain licensees and/or licensors of PFHOF Works that may restrict or prohibit PFHOF from making certain PFHOF Works available for use or Exploitation under this Agreement, including, without limitation that certain agreement effective as of June 25, 2013 among NFL Enterprises LLC, PFHOF and PFHOF Enshrinees Events, Inc. d/b/a Pro Football Hall of Fame Enterprisers (the NFLN Agreement) (any and all such restrictions and prohibitions, collectively, Rights Restrictions) and that the Village Media Company's rights under this Agreement shall subject and subordinate to any such Rights Restrictions for so long as such Rights Restrictions are in effect. Without limiting the foregoing, in the event that the Village Media Company is prohibited from pursing and launching an opportunity to create and Exploit an HOFV Work or use or Exploit an existing PFHOF Work pursuant to Sections 2.7, 2.8 or 2.9 as a result of a Rights Restriction under the terms of the NFLN Agreement, then the Parties shall negotiate in good faith a reasonable decrease in the Annual Guarantee for the calendar year in which such opportunity is unavailable.

4

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





2.7 PFHOF agrees not to grant licenses to create new PFHOF Works, except with respect to the categories identified on Exhibit A, to any third party during the Term without first offering to the Village Media Company the right of first refusal to create such PFHOF Works on equal terms, subject to any Rights Restrictions. If PFHOF desires to offer a license to any third party or if it receives any bona fide offer from a third party that it is willing to accept, it shall promptly communicate such offer, including the specific terms and business plan relating to such offer, to the Village Media Company and provide the Village Media Company with at least fourteen (14) days to exercise its right of first refusal. If the Village Media Company elects to exercise its right of first refusal, the terms of the offer shall apply, the applicable license shall be subject to the terms and conditions of this Agreement and the Village Media Company shall pay to PFHOF a License Fee (as defined below) for such license in accordance with this Agreement. If the Village Media Company does not exercise its right of first refusal, PFHOF shall have the right to grant a license with respect to such third party on the same terms originally provided to the Village Media Company. 2.8 PFHOF agrees that during the Term, except with respect to the categories identified on Exhibit A, it will not create new PFHOF Works without first granting the Village Media Company a right of first offer to create such PFHOF Work, subject to any Rights Restrictions. If PFHOF desires to create new PFHOF Works, it shall present a proposed business plan in writing to the Village Media Company. The Village Media Company will have fourteen (14) days to review such business plan and elect to proceed under the business plan. If the Village Media Company elects proceed under the business plan, then creation of such PFHOF Work shall be subject to the terms and conditions of this Agreement and the Village Media Company shall pay to PFHOF a License Fee in accordance with this Agreement for the license to create the PFHOF Work. If the Village Media Company does not make such an election, then PFHOF shall have the right to create such PFHOF Work itself. 2.9 PFHOF agrees that during the Term, except with respect to the categories identified on Exhibit A, if PFHOF desires to either exploit itself or license a third party to exploit an existing PFHOF Work, it shall first give the Village Media Company a right of first offer to exclusively license such PFHOF Work, subject to any Rights Restrictions. In such a case, PFHOF shall promptly notify the Village Media Company and provide the Village Media Company with any bona fide third party offer to license such PFHOF Work that PFHOF is willing to accept, including any specific terms and proposed business plan relating to such offer. The Parties shall then negotiate in good faith an agreement to exclusively license the particular PFHOF Work. If the Parties reach an agreement within thirty (30) days, then the applicable license shall be subject to the terms and conditions of this Agreement and the Village Media Company shall pay to PFHOF a License Fee for such license in accordance with this Agreement. If the Parties cannot reach an agreement within thirty (30) days, then PFHOF shall have the right to exploit or license the PFHOF Work itself.

5

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





2.10 PFHOF represents and warrants to the Village Media Company that it is the exclusive owner of the PFHOF Works or has the right to grant the licenses and other rights granted to the Village Media Company hereunder, including the right to use the PFHOF Works as permitted herein and that, subject to any Rights Restriction in effect on the Effective Date, PFHOF has secured any necessary releases for any rights of publicity or privacy and can license such rights to the Village Media Company hereunder. 2.11 PFHOF agrees to indemnify, defend, and hold harmless the Village Media Company, its Affiliates, and their respective employees, officers, directors, agents, representatives, and successors and assigns from and against any and all claims, demands, liabilities, losses, suits, damages, costs (including, without limitation, costs of investigation), and expenses, including reasonable attorneys' fees, arising out of or relating to (a) the Village Media Company's authorized use of the PFHOF Works, as permitted by, and in accordance with, the terms of this Agreement, (b) any breach by PFHOF of any warranty, representation, obligation, or agreement made under this Agreement, or (c) PFHOF's use of the HOFV Works in breach of this Agreement, or any claim of infringement of any intellectual property right arising out of the misuse or misappropriation of the HOFV Works by PFHOF. 2.12 The Village Media Company represents and warrants to PFHOF that it is (a) a limited liability company organized and in good standing under the laws of the State of Delaware and (b) a wholly-owned subsidiary of HOFV. 2.13 The Village Media Company agrees to indemnify, defend, and hold harmless PFHOF, its Affiliates, and their respective employees, officers, directors, agents, representatives, and successors and assigns from and against any and all claims, demands, liabilities, losses, suits, damages, costs (including, without limitation, costs of investigation), and expenses, including reasonable attorneys' fees, arising out of or related to (a) the Village Media Company's use of the PFHOF Works in breach of this Agreement, or any claim of infringement of any intellectual property right arising out of the misuse or misappropriation of the PFHOF Works, (b) any breach by the Village Media Company (or its sublicensees, if applicable) of any warranty, representation, obligation, or agreement made under this Agreement, (c) the Exploitation of any of the rights granted pursuant to the terms of this Agreement by the Village Media Company, its Affiliates, licensees or sublicensees arising out of or relating to the Exploitation of any PFHOF Works or HOFV Works (unless such liability arises solely from use of the PFHOF Works by the Village Media Company in accordance with this Agreement), (d) PFHOF's authorized use of any HOFV Works as permitted by, and in accordance with, the terms of this Agreement, (e) any advertising, promotion or other similar materials that are inserted into any Exploitation of any PFHOF Work or any HOFV Work (but excluding advertising or promotional announcements supplied by or on behalf of PFHOF and excluding any claims arising solely from use of the PFHOF Works by the Village Media Company in accordance with this Agreement)) or (f) any failure of the Village Media Company to comply with applicable laws in connection with the rights and performance of its obligations under this Agreement.

6

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





2.14 Except for Section 3.5, nothing in this Agreement shall be construed as limiting in any way the Village Media Company's ability to seek and exploit separate rights from any third party. 3. OPERATION OF VILLAGE MEDIA COMPANY 3.1 The Chief Executive Officer of the Village Media Company (the CEO) shall be the Manager of the Village Media Company. 3.2 The Executive Producer of the Village Media Company (the EP) shall report to the CEO with input from the Chief Executive Officer of PFHOF. To the extent that the Village Media Company and PFHOF work collaboratively on media projects, the EP's services on such projects for the benefit of PFHOF shall be charged to PFHOF at cost without markup. Performance objectives for the EP shall be determined by the CEO with input from the Advisory Board. 3.3 In consultation with the CEO, the EP shall annually prepare a staffing plan for the Village Media Company's operations and present such plan to the Advisory Board for review. Staff employed by the Village Media Company may be used for projects solely for the benefit of PFHOF or for projects that are collaboratively undertaken by both the Village Media Company and PFHOF. The Advisory Board shall be informed to the extent Village Media Company staff are employed on projects solely for the benefit of PFHOF or on projects that are collaboratively undertaken by both the Village Media Company and PFHOF. In addition, (a) PFHOF shall bear its proportionate share of the cost of such Village Media Company staff (at cost without markup) that work on such collaborative projects and, to the extent such staff work 100% on a PFHOF project, PFHOF shall bear all of the cost of such staff for such project (at cost without markup) and (b) the Village Media Company shall bear its proportionate share of the cost of PFHOF staff (at cost without markup) that work on such collaborative projects and, to the extent such staff work 100% on a Village Media Company project, the Village Media Company bear all of the cost of such staff for such project (at cost without markup). The EP shall ensure that, to the extent that PFHOF and the Village Media Company share staff, that such sharing will not impact the ability of PFHOF or the Village Media Company to meet their respective budget, creative goals, or sales/marketing goals for any year.

7

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





3.4 The Advisory Board shall meet regularly to facilitate the Village Media Company's consideration of media-related opportunities contemplated hereunder and to review proposed projects, budgets, schedules, and creative concepts under consideration by the Village Media Company. 3.5 All communication with the National Football League (the NFL), its 32 Member Clubs, NFL Legends and Gold Jackets shall be made exclusively and directly through PFHOF. For the avoidance of doubt, PFHOF has the exclusive and sole relationship with the NFL, its 32 Member Clubs, NFL Legends and Gold Jackets for any and all PFHOF and HOFV activities; provided, however, that any communication relating to any investment by the NFL in any Village Media Company project, may be made directly through the President of PFHOF or the Chief Executive Officer of HOFV; and, provided further, that the Village Media Company shall have the right to present opportunities related to any of the above for approval by PFHOF. 4. TERM AND TERMINATION 4.1 Unless otherwise terminated as provided herein, the term of this Agreement shall commence on the Effective Date and shall terminate on December 31, 2034 (such period, including as may be extended in accordance with the subsequent sentence, the Term). Thereafter, the agreement shall automatically renew for successive five (5)-year terms, unless either Party gives written notice to the other Party of intent not to renew at least six (6) months prior to the expiration of the then-current Term. If either party elects not to renew the Agreement and the other party wishes to continue the Agreement, the Parties shall attempt in good faith to negotiate an amendment to the Agreement to renew the Term on such terms as may be negotiated by the Parties. Such good faith negotiation shall continue until both Parties agree to cease negotiations or until expiration of the Term. 4.2 After good faith consultation with the Advisory Board, either Party shall have the right to terminate this Agreement at any time for an uncured material breach by the other Party, including the non-payment of the Annual Guarantee, license fees and staffing fees, provided that the non-breaching Party provides prior written notice to the breaching Party, specifying the alleged material breach, and further provided that the breaching Party shall have thirty (30) days after receipt of such notice to cure the material breach, to the reasonable satisfaction of the non-breaching Party; provided, further, that if such breach (other than a breach for non-payment) cannot be cured during such 30-day period, but the allegedly breaching Party has commenced and is continuing good faith efforts to cure such breach within such 30-day period, then the cure period shall be extended until the allegedly breaching Party has stopped making good faith efforts to cure such breach, such extension not to exceed ninety (90) days. 4.3 Either Party may terminate this Agreement immediately upon giving notice if the other Party ceases to conduct its operations in the normal course of business, including the inability to meet its obligations as they mature, or if any proceeding under the bankruptcy or insolvency laws is brought by or against the other Party, or a receiver or custodian is appointed or applied for by the other Party, or an assignment for the benefit of creditors or a transfer of all or substantially all of its property is made by the other Party.

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Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





4.4 In addition to and without limiting any other provision of this Agreement, if a Change of Control occurs at any time during the Term, PFHOF shall have the right to terminate this Agreement immediately upon giving notice of such termination to the Village Media Company. For purposes of this Section 4.4, a Change of Control shall mean any transaction or series of related transactions that results in (including by way of merger or consolidation), or that is in connection with, the Village Media Company no longer being controlled (as defined in Section 1.2) by or under common control (as defined in Section 1.2) with HOFV. 4.5 In addition to and without limiting any other provision of this Agreement, in the event the Village Media Company or HOFV fails to pay the Annual Guarantee to PFHOF in accordance with Section 5.1 and such failure is not cured within thirty (30) days of notice thereof by PFHOF, then the rights of first offer granted to HOFV in Section 3.1 of the First Amended and Restated License Agreement, dated as of September 16, 2019 between PFHOF and HOFV (the License Agreement) shall automatically and immediately terminate, regardless of whether PFHOF elects not to terminate this Agreement in accordance Section 4.2. 4.6 Notwithstanding anything to the contrary in this Agreement, this Agreement shall automatically and immediately terminate, without any further action or notice to any Party, upon termination of the License Agreement. 4.7 Upon the expiration or termination of this Agreement as provided in this Section 4, the rights and obligations of the Parties under this Agreement shall be terminated, except as provided herein. 5. FEES 5.1 Subject to Section 2.6, the Village Media Company shall, or shall cause HOFV to, pay to PFHOF a minimum guarantee of one million two hundred and fifty thousand dollars ($1,250,000) (the Annual Guarantee) each year during the Term; provided that the Parties acknowledge and agree that after the first five (5) years of the Term, the Annual Guarantee shall increase by three percent (3%) on a year-over-year basis (e.g., the Annual Guarantee shall increase to $1,287,500 for year six (6) and to $1,326,125 for year seven (7)). The first Annual Guarantee payment shall be due and payable on the Effective Date and thereafter shall be payable to PFHOF on each twelve (12) month anniversary of the Closing Date during the Term.

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Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





5.2 In consideration of any license granted to the Village Media Company hereunder, the Village Media Company shall, or shall cause HOFV to, pay to PFHOF a license fee specific to the PFHOF Work(s) licensed by PFHOF hereunder (License Fee) pursuant to the rate for the applicable project or opportunity as will be mutually agreed between the Parties for each opportunity; provided that License Fees shall be debited first from the Annual Guarantee, which shall satisfy such License Fees due and payable hereunder until the aggregate amount of the License Fees due and payable during such calendar year exceeds the Annual Guarantee for such calendar year. For clarity, if for any calendar year during the Term, the amount of License Fees for such calendar is (x) less than the amount of the Annual Guarantee, the Village Media Company shall still be required to pay the Annual Guarantee for such calendar year or (y) more than the Annual Guarantee, the Village Media Company shall be required to pay all License Fees in excess of the Annual Guarantee for such calendar year. The Parties acknowledge and agree that two hundred twenty five thousand dollars ($225,000) (the Youth Sports License Fee) shall be credited against the Annual Guarantee on the Closing Date and each anniversary of the Closing Date during the Term for the license granted by PFHOF to Youth Sports Management, LLC (Youth Sports) pursuant to that certain branding license agreement to be entered into on the Effective Date between PFHOF and Youth Sports for so long as such agreement remains in effect; provided that after the first five (5) years of the Term, the Youth Sports License Fee shall increase by three percent (3%) on a year-over year basis and thereafter, the aggregate amount of the Youth Sports License Fee, after giving effect to such increase each year, shall be the amount credited against the Annual Guarantee. 6. FORCE MAJEURE In the event either Party is unable to comply fully with its obligations (other than payment obligations) under this Agreement due to an event beyond the control of the Party whose performance is affected, including any legal prohibition, court order, degree, regulation or requirement of any governmental entity having jurisdiction, strikes, catastrophe, drought, shortage of water or other action of the elements, temporary or permanent shutdown due to regulatory or other governmental actions, or Acts of God or any other matters beyond its control, such Party shall while so affected be relieved to the extent thus prevented from performing its obligations hereunder and such non-performance shall not, in and of itself, be deemed to be a breach of this Agreement; provided that, in such event, the non-performing Party takes all commercially reasonable measures to remove the disability and resume full performance hereunder at the earliest possible date. 7. GENERAL PROVISIONS 7.1 Confidentiality (a) Confidential Information means all forms of confidential information, including technical information and business information, disclosed by one Party or its Affiliates (the Disclosing Party) to the other Party or its Affiliates (the Receiving Party) during the Term in connection with this Agreement, that is identified as confidential or is information that is of a nature that is customarily regarded as confidential, whether disclosed in electronic, tangible, oral or visual form; provided that oral or visual disclosures shall be deemed confidential only if they are confirmed as confidential in writing by the Disclosing Party prior to or at the time of disclosure or within thirty (30) days thereafter, or if the Receiving Party should reasonably know that such visual or oral disclosures are intended to be confidential. Confidential Information shall not include such information that: (i) as of the date of disclosure is known to the Receiving Party or its Affiliates, as shown by written documentation; (ii) was independently developed by the Receiving Party or its Affiliates without access to the Disclosing Party's Confidential Information; (iii) as of the date of disclosure is in, or subsequently enters, the public domain, through no fault of the Receiving Party; or (iv) as of the date of disclosure or thereafter is obtained from a third party free from any obligation of confidentiality to the Disclosing Party.

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Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





(b) Each Receiving Party agrees: (i) not to disclose, make public, or authorize any disclosure or publication of such Confidential Information of the Disclosing Party except as expressly permitted herein; (ii) to take reasonable measures to protect the confidentiality of the Disclosing Party's Confidential Information exercising the same degree of care to preserve and safeguard the Disclosing Party's Confidential Information as it uses to preserve and safeguard its own Confidential Information, but in no event less than a reasonable degree of care; (iii) to restrict access to such Confidential Information to only those officers, directors, or employees of the Receiving Party or its Affiliates or representatives who have a need to know such Confidential Information and who are bound by confidentiality obligations at least as restrictive as those contained in this Agreement; and (iv) not to remove any confidential or proprietary markings or designations placed by the Disclosing Party on such Confidential Information. The Receiving Party and its Affiliates shall not use the Disclosing Party's Confidential Information for any purpose except as permitted by this Agreement. (c) The confidentiality obligations contained herein shall not apply to the extent that the Receiving Party is required to disclose the information by law, order, or regulation of a governmental agency or a court of competent jurisdiction; provided that, in each such case, the Receiving Party shall give written notice thereof to the Disclosing Party and sufficient opportunity to prevent or limit any such disclosure or to request confidential treatment thereof; and provided further, that the Receiving Party shall give reasonable assistance to the Disclosing Party to preserve the information as confidential. (d) Upon termination of this Agreement, each Receiving Party shall return to the Disclosing Party (or at the Disclosing Party's direction, destroy) all Confidential Information of the Disclosing Party that is in the possession, custody, or control of the Receiving Party. The Village Media Company shall be permitted to retain copies of PFHOF's Confidential Information as necessary to allow the Village Media Company to exercise its post-termination rights with respect to such information.

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Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





(e) Each Party acknowledges that a breach or threatened breach of this Section 7.1 on its part shall result in irreparable and incalculable damages to the other Party. Therefore, in addition to any action by either Party for collection of damages resulting from the breach of this Agreement, such Party shall also be entitled to immediate injunctive relief, restraining the other Party from continued or threatened breach of this Agreement. Each Party further agrees that, upon a finding of a breach of the terms of this Agreement on its part, such Party shall pay to the other Party the costs and expenses, including attorneys' fees, which the other Party incurs in enforcing the terms of this Agreement. 7.2 Notices. Any notice required or permitted by this Agreement will be in writing and delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgement of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice will be sent to the appropriate address set forth below or such other address as to which the Parties have been notified hereunder. 7.3 Compliance with Laws and Regulations. Each of the Village Media Company and PFHOF, as applicable, agrees to be in material compliance with all federal, state, and local laws, ordinances, and regulations applicable to its respective operations and to obtain and maintain all licenses and permits required by law necessary for each of their respective operations. 7.4 Governing Law and Arbitration. (a) This Agreement will be governed in all respects by the laws of the State of Ohio (without regard to conflicts of law provisions), as such laws are applied to agreements entered into and to be performed entirely within the State of Ohio between Ohio residents. (b) Any dispute between the Parties concerning the scope or interpretation of this Agreement shall be submitted to binding arbitration in accordance with the Rules of Commercial Arbitration of the American Arbitration Association in effect on the date that a dispute is submitted to arbitration (the Rules). The arbitration shall be held in Canton, Ohio, and shall be before a panel of three arbitrators, one chosen by each of the Parties and a third chosen by the two arbitrators so chosen by the Parties. Not less than fifteen (15) days prior to the arbitration, each Party shall submit to the other the documents and a list of witnesses it intends to interview or call in the arbitration. The arbitrators shall apply the substantive law of the State of Ohio with regard to any dispute that becomes the subject of arbitration, and the arbitrators will be so instructed. The arbitrators shall issue a written opinion stating the findings of fact and the conclusions of law upon which the decision is based. The decision of the arbitrators shall be final and binding.

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Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





(c) In any action, suit, proceeding, claim, or counterclaim brought to enforce this Agreement or any of its provisions, the Party that prevails in any such action, suit, proceeding, claim, or counterclaim (the Prevailing Party) shall recover its costs, fees, and expenses, including, but not limited to, the reasonable costs, fees, and expenses of attorneys and outside experts (collectively, Expenses), from the other Party (the Non-Prevailing Party), and the court or arbitration panel shall be so instructed to determine which Party is the Prevailing Party, to grant the recovery of the Expenses incurred by the Prevailing Party, and to order the Non-Prevailing Party to pay the Expenses of the Prevailing Party. 7.5 Assignment. The Village Media Company shall not, directly or indirectly, assign, sublicense or otherwise transfer any of its rights or obligations hereunder without the prior written consent of PFHOF. The transfer of ownership of the Village Media Company pursuant to the Merger Agreement shall not require the consent of PFHOF. 7.6 Severability. Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby. 7.7 Waiver. The waiver by either Party of a breach of any provision of this Agreement by the other Party will not operate or be construed as a waiver of any other or subsequent breach by such other Party. 7.8 Authority. Each Party warrants and represents that such Party's execution and delivery of this Agreement has been duly authorized by proper corporate or limited liability company action and that this Agreement is a binding obligation of such Party enforceable in accordance with its terms. 7.9 Independent Contracting Parties. The Parties are independent contracting parties and nothing in this Agreement shall make either Party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either Party the authority to assume or create any obligation on behalf of or in the name of the other. Furthermore, the Parties shall remain separate and independent contracting parties and nothing in this Agreement shall make either Party subject to a joint venture agreement or other mutual arrangement between the Parties. 7.10 Entire Agreement. This Agreement constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter, including the Original License Agreement. This Agreement may be changed only by mutual agreement of the Parties in writing. 7.11 Merger Agreement. Notwithstanding anything to the contrary in this Agreement, in the event that the Closing (as such term is defined in the Merger Agreement) does not occur, this Agreement shall be terminated and the provisions herein shall have no force or effect. [signature page follows]

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Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





IN WITNESS WHEREOF, PFHOF, HOFV (solely for purposes of Section 4.5) and the Village Media Company have caused this Agreement to be executed by their respective, duly authorized representatives, effective as of the Effective Date. NATIONAL FOOTBALL MUSEUM, INC. By: C. David Baker President Date: Address: 2121 George Halas Drive NW Canton, Ohio 44708 HOF VILLAGE MEDIA GROUP, LLC By: Name: Title: Date: Address: 1826 Clearview Avenue NW Canton, Ohio 44708 [Media License Agreement]

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





For the purpose of acknowledging and agreeing to the terms set forth in Section 4.5: HOF VILLAGE, LLC By: Name: Title: Date: Address: 1826 Clearview Avenue NW Canton, Ohio 44708 [Media License Agreement]

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





Exhibit A Excluded Categories and Properties 1. Any PFHOF Works in, or Exploited in connection with, the following Categories: · Health Care · Museums · Education · Sports Betting 2. Any programming or content created or Exploited in support and furtherance of the PFHOF's mission. 3. The following television properties that are subject to perpetual rights and existing and future media deals (including any extensions, renewals or similar agreement in connection any existing agreement): Properties and rights subject to agreements with NFL Enterprises LLC (NFLN) and ESPN, Inc. (ESPN) through September 1st 2021 (and any extension, renewal or similar agreement relating thereto). · Enshrinement Ceremonies · Other Enshrinement Events reserved for NFLN o Gold Jacket Show one hour (2019 - 2 hours co-copyright NFLN PFHOF) o Five One Hour Gold Jacket Contender Shows from September to February around the Enshrinement Selection Process For the avoidance of doubt, nothing in this Agreement shall grant Village Media Company or its Affiliates the right or license to (i) any live (or near live) rights to Exploit any events or other content owned or controlled by PFHOF (e.g., Enshrinement Ceremonies), or (ii) any programming or content in connection with or related to any Enshrinement Ceremony or the Enshrinement selection process (e.g., selection meetings, voting, debates or discussions prior to or during any selection meeting, presenter speeches, discussions or events immediately after Enshrinement Ceremonies, etc.). 4. Any content or properties utilizing the following trademarks: · Knock on the Door (Trademarked sold to social media company) · Hometown Hall of Famer (Trademarked sold to sponsors)

Exhibit A-1

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020





5. The following movies: · Jim and Jill Kelly Movie 6. The autobiographical or biographical works related to the following players with video rights: · Michael Strahan · John Madden · Troy Aikman 7. The following television show concepts: · Hall of Fame City · Documentary One Years One Hundred Yards of Character · Strong Youth Strong Communities · Centennial Spectacular · Centennial Gala 8. Any digital live streaming rights, including without limitation, of the following properties: · State of the Hall · Super Bowl Luncheon · Salute to Greatness · Inspiration Project · The Mission · Heart of the Hall of Famer 9. Any licenses or sponsorships of video games granted to EA Sports (or its successor) with respect to Madden NFL or any other EA Sports football game. Exhibit A-2

Source: GPAQ ACQUISITION HOLDINGS, INC., S-4/A, 1/23/2020 
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?

Answer:
The Village Media Company shall not, and shall cause its Affiliates and their respective permitted sublicensees not to, whether during the Term or thereafter, challenge (a) the rights of PFHOF in and to any PFHOF Work, (b) the validity of any PFHOF Work, (c) PFHOF's right to grant rights or licenses relating to the PFHOF Works or (d) the validity, legality, or enforceability of this Agreement.