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 the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
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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.

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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).

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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.

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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.

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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.

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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.

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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.

11

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.

12

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]

13

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: 11694


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

MOBILE VIRTUAL NETWORK ENABLER HOSTING AGREEMENT

BETWEEN

T-MOBILE NETHERLANDS B.V.

&

Elephant Talk Communication Holding AG

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





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

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

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





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

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

(T-Mobile hosting ELEPHANT TALK)

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

and

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

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

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

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





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

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

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

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

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

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

1.6 CDR shall mean call detail record.

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

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

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

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





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

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

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

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

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

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

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

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

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

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

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

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

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

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





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

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

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

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

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

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

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

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

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

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

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

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





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

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





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

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

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

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

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

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

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

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





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

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

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

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

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

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





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

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

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

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

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

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

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

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





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



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





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

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

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

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

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

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

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

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

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





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

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

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

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

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

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

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

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





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

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

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

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

5.3 ***.

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

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

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

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

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





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

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

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

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

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

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

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

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





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

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

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

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

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

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

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

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





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

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

9.2.5 ***

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

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

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

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

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





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

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

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

9.4.1.   ***

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

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

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

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

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





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

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

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

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

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

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





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

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

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

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

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

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





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

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

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

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

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

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





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

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

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

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

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

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





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

  15.  INTELLECTUAL PROPERTY RIGHTS

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

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

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

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

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





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

16.1 ELEPHANT TALK shall order and purchase SIM cards.

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

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

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

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

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

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





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

18.  TERMINATION OF AGREEMENT

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

  a. by mutual agreement of the Parties; or

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

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

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

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

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

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

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





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

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

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

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

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

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

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





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

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

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

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

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





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

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

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

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

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

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

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





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

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

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

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

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

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





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

  23.  COUNTERPART

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

Signed in September 17, 2008

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

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



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

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

____________________________

Source: PARETEUM CORP, 8-K, 10/1/2008 
Question: Highlight the parts (if any) of this contract related to Liquidated Damages that should be reviewed by a lawyer. Details: Does the contract contain a clause that would award either party liquidated damages for breach or a fee upon the termination of a contract (termination fee)?

Answer: 62083


Question: 1

                                                               EXHIBIT 10.26

                         CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY                                     WITH THE SECURITIES AND EXCHANGE COMMISSION.                                                      ASTERISKS DENOTE OMISSIONS.

                          SPONSORSHIP AGREEMENT

This agreement (Agreement) is entered into as of the 23rd day of September 1998 (Effective Date), by and between Excite, Inc., a Delaware corporation, located at 555 Broadway, Redwood City, California 94063 (Excite), and Vitamin Shoppe Industries Inc., a New York corporation, located at 4700 Westside Avenue, North Bergen, New Jersey 07047 (Client).

                                 RECITALS

A.               Excite maintains sites on the Internet at                  http://www.excite.com (the Excite Site),                  http://www.webcrawler.com (the WebCrawler Site) and                  http://www.excite.co.jp (the Excite Japan Site), and owns,                  manages or is authorized to place advertising on affiliated                  sites on the Internet worldwide (collectively, the Excite                  Network) which, among other things, allow its users to search                  for and access content and other sites on the Internet.  For                  purposes of this Agreement, the parties hereby acknowledge                  that the Excite Network does not include the site on the                  Internet located at http://home.netscape.com and/or other URLs                  or locations designated by Netscape Communications                  Corporation.

B.               Within the Excite Site and the WebCrawler Site, Excite                  currently organizes certain content into topical channels (the                  Channels).

C.               Client is engaged in the business of selling vitamins,                  minerals, nutritional supplements, herbs, sports nutrition                  formulae, homeopathic remedies and other health related                  products (Vitamins) at its site on the Internet located at                  http://www.vitaminshoppe.com (the Client Site).

D.               Client wishes to promote its business to users of the Excite                  Network through promotions and advertising in various portions                  of the Excite Network.

Therefore, the parties agree as follows:

1.               SPONSORSHIP ON THE WEBCRAWLER HEALTH CHANNEL

              a)       Client will be promoted as the preferred and dominant                           reseller of Vitamins in the Health Channel on the                           WebCrawler Site during the term of this Agreement. As                           such, Excite may not display banner advertising and/or                           promotional placements for any of Client's Competitors                           that are, in the aggregate, of equal or greater                           prominence and exposure than the aggregate of Client's                           links, advertising banners and promotional placements                           on the pages of the Health Channel on the WebCrawler                           Site during the term of this Agreement. For purposes                           of this Agreement, Client's Competitors means those                           merchants identified in Exhibit D attached hereto.                           Client may update

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                       this list in writing not more than once every six (6)                           months by adding other merchants whose primary                           business is reselling Vitamins upon the mutual                           agreement of Excite.  Notwithstanding the foregoing,                           Excite may display links to Excite's own products and                           services anywhere in the Excite Network, and may                           display links to Client's Competitors in results                           pages of search services in response to user queries,                           in general directories of Web sites, in classified                           advertising listings and in results in the Jango                           shopping search service throughout the Excite                           Network.  Client's preferred and dominant status as a                           reseller of Vitamins will be extended on the terms                           stated in this Section l(a) to its presence within                           future departments within the WebCrawler Health                           Channel, when launched, which may include, but are                           not limited to, the alternative medicine and senior                           living departments.





              b)       The parties will cooperate in good faith to identify                           and implement appropriate promotional opportunities                           for Client to be displayed in rotation on the home                           page of the WebCrawler Health Channel during the term                           of the Agreement.

              c)       A link to the Client Site (consistent with the format                           used on similar links on the same page) will be                           displayed in the Nutrition & Vitamins department of                           the WebCrawler Health Channel during the term of the                           Agreement.  Excite estimates, but does not guarantee,                           delivery of [*****] impressions of the Client                           promotional placement described in this Section l(c)                           during [*****] of the term of the Agreement and                           [*****] such impressions during  [*****] of the term                           of the Agreement.

              d)       The parties will cooperate in good faith to identify                           and implement other appropriate promotional                           opportunities for Client on the WebCrawler Health                           Channel including (if and when launched) but not                           limited to, the alternative medicine and senior living                           departments during the term of the Agreement. Excite                           estimates, but does not guarantee, delivery of [*****]                           impressions of the Client promotional placement                           described in this Section 1(d) during [*****] of the                           term of the Agreement and [*****] such impressions                           during [*****] of the term of the Agreement.

              e)       Excite is in the process of developing a Sponsorship                           Strip for the WebCrawler Health Channel consisting of                           a row of graphic links to sponsors' Web sites. Excite                           will display a graphic link to the Client Site on the                           Sponsorship Strip (consistent with the format used on                           similar links on the same strip) in the pages of the                           WebCrawler Health Channel for the duration of the term                           of the Agreement.  Excite estimates, but does not                           guarantee, delivery of [*****] impressions of the                           Client promotional placement described in this Section                           1(e) during [*****] of the term of the Agreement and                           [*****] such impressions during [*****] of the term                           of the Agreement.

              f)       Excite and Client acknowledge that neither party to                           this Agreement possesses any right to control the                           content or promotional programming displayed on any                           third party

                                    2    3                             CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY                                     WITH THE SECURITIES AND EXCHANGE COMMISSION.                                                      ASTERISKS DENOTE OMISSIONS.

                       site.  However, Excite will work with Client in good                           faith to evaluate the display of any Excite                           co-branded pages one level deep that directly link                           from the WebCrawler Health Channel to determine                           whether the non-banner display of modules related to                           Client's Competitors on those pages materially and                           adversely affect the aggregate value of Client's                           promotional placements on the WebCrawler Health                           Channel as described in this Agreement.  Under such                           circumstances, Excite will then exert commercially                           reasonable efforts to modify such co-branded pages to                           reduce such material and adverse effects.

2.               SPONSORSHIP ON THE WEBCRAWLER SHOPPING CHANNEL

              a)       Client will be promoted as the preferred and dominant                           reseller of Vitamins in the Shopping Channel on the                           WebCrawler Site during the term of this Agreement. As                           such, Excite may not display banner advertising and/or                           promotional placements for any of Client's Competitors                           that are, in the aggregate, of equal or greater                           prominence and exposure than the aggregate of Client's                           links, advertising banners and promotional placements                           on the pages of the Shopping Channel or the WebCrawler                           Site.  Notwithstanding the foregoing, Excite may                           display links to Excite's own products and services                           anywhere in the Excite Network, and may display links                           to Client's Competitors in results pages of search                           services in response to user queries, in general                           directories of Web sites, in classified advertising                           listings and in results in the Jango shopping search                           service throughout the Excite Network.





              b)       A link to the Client Site (consistent with the format                           used on similar links on the same page) will be                           displayed in rotation on the first page of the health                           & fitness department of the WebCrawler Shopping                           Channel during the term of the Agreement.  Excite                           estimates, but does not guarantee, delivery of [*****]                           impressions of the Client promotional placement                           described in this Section 2(b) during [*****] of the                           term of the Agreement and [*****] such impressions                           during [*****] of the term of the Agreement.

              c)       A link to the Client Site (consistent with the format                           used on similar links on the same page) will be                           displayed under the health foods category on the first                           page of the health & fitness groceries department of                           the WebCrawler Shopping Channel. Excite estimates, but                           does not guarantee, delivery of [*****] impressions of                           the Client promotional placement described in this                           Section 2(c) during [*****] of the term of the                           Agreement and [*****] such impressions during [*****]                           of the term of the Agreement.

                                    3    4                             CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY                                     WITH THE SECURITIES AND EXCHANGE COMMISSION.                                                      ASTERISKS DENOTE OMISSIONS.

3.               ADDITIONAL SPONSORSHIP

              a)       The parties will cooperate in good faith to identify                           and implement selective sponsorship and promotional                           opportunities for Client in the Nutrition & Vitamins                           department of the Health Channel on the Excite Site.                           Such opportunities may include sponsorship links,                           sponsorship boxes and/or promotional boxes.  The                           parties hereby acknowledge that Client will be                           sharing such opportunities in the Nutrition &                           Vitamins department of the Excite Health Channel with                           one other reseller of vitamins.

              b)       The parties will cooperate in good faith to identify                           and implement selective sponsorship and promotional                           opportunities for Client on the Excite Japan Site.                           Such opportunities may include sponsorship links,                           sponsorship boxes and/or promotional boxes.  Excite                           estimates, but does not guarantee, delivery of [*****]                           impressions of the Client promotional placements                           described in this Section 3(b) during [*****] of the                           term of the Agreement and [*****] such impressions                           during [*****] of the term of the Agreement.

              c)       Excite estimates, but does not guarantee, delivery of                           a total of [*****] impressions of the Client                           promotional placements described in Sections 3(a) and                           3(b) during the term of this Agreement.

4.               DeliverE MESSAGE PROMOTIONS

              a)       Excite and Client will cooperate in developing and                           delivering MatchLogic DeliverE message campaigns                           during the term of the Agreement as described in                           Exhibit B. The MatchLogic DeliverE is an opt in email                           service providing the opportunity to distribute                           messages to highly targeted audiences on the Web via                           email.  All such message campaigns will comply with                           Excite's then current privacy policy which is located                           at http://www.excite.com/privacy_policy and is                           subject to change from time to time.  If the privacy                           policy changes in a manner that has a material                           adverse effect on the value, functionality or                           implementation of the DeliverE message campaign for                           Client, Excite will notify Client, which will then                           have the option to cancel future DeliverE campaigns                           and both parties will be relieved of their                           obligations related to those canceled DeliverE                           campaigns, if Client, in its sole but reasonable                           discretion, finds such changed privacy policy                           objectionable.

              b)       Excite estimates, but does not guarantee, delivery of                           [*****] impressions of the email messages described in                           this Section 4 during [*****] of the term of this                           Agreement and [*****] impressions during [*****] of                           the term of the Agreement.





                                    4    5                             CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY                                     WITH THE SECURITIES AND EXCHANGE COMMISSION.                                                      ASTERISKS DENOTE OMISSIONS.

              c)       Excite and Client agree that Client may purchase                           additional DeliverE messages during the term of this                           Agreement at a rate of [*****] impressions (CPM),                           subject to availability.

5.               ADVERTISING ON THE EXCITE NETWORK

              a)       Excite will display Client's banner advertising on                           [*****] in response to the keywords set forth in                           Exhibit A as amended from time to time by Client, and                           with additional keywords related to Vitamins, subject                           to availability, during the term of the Agreement.                           Excite estimates, but does not guarantee, the display                           of [*****] impressions of the banner advertisements                           described in this Section 5(a) during [*****] of the                           term of the Agreement and [*****] such impressions                           during [*****] of the term of the Agreement.

              b)       Excite will display Client's banner advertising in                           [*****] during the term of the Agreement.  Excite                           estimates, but does not guarantee, the display of                           [*****] impressions of the banner advertisements                           described in this Section 5(b) during [*****] of the                           term of the Agreement and [*****] such during [*****]                           of the term of the Agreement.

              c)       Excite will display Client's banner advertising in                           [*****] during the term of the Agreement.  Excite                           estimates, but does not guarantee, the display of                           [*****] impressions of the banner advertisements                           described in this Section 5(c) during [*****] of the                           term of the Agreement and [*****] such impressions                           during [*****] of the term of the Agreement.

              d)       Excite will display Client's banner advertising in                           [*****] during the term of the Agreement.  Excite                           estimates, but does not guarantee, the display of                           [*****] impressions of the banner advertisements                           described in this Section 5(d) during [*****] of the                           term of the Agreement and [*****] such impressions                           during [*****] of the term of the Agreement.

6.               LAUNCH DATE, RESPONSIBILITY FOR EXCITE NETWORK AND REPORTING

              a)       Client and Excite will use reasonable efforts to                           implement the display of the promotional placements                           and advertising described in the Agreement by October                           1, 1998 (the Scheduled Launch Date).  The parties                           recognize that the Scheduled Launch Date can be met                           only if Client provides final versions of all                           graphics, text, keywords, banner advertising,                           promotional placements, other promotional media and                           valid URL links necessary to implement the                           promotional placements and advertising described in                           the Agreement (collectively, Impression Material)                           to Excite fourteen (14) days prior to Scheduled                           Launch Date.

                                    5    6                             CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY                                     WITH THE SECURITIES AND EXCHANGE COMMISSION.                                                      ASTERISKS DENOTE OMISSIONS.

              b)       In the event that Client fails to provide the                           Impression Material to Excite fourteen (14) days in





                       advance of the Scheduled Launch Date, Excite may, at                           its sole discretion (i) reschedule the Scheduled                           Launch Date at the earliest practicable date                           according to the availability of Excite's engineering                           resources after delivery of the complete Impression                           Material or (ii) commence delivery of Impressions                           based on Impression Material in Excite's possession                           at the time.

              c)       Client and Excite agree that the day the promotional                           placements and advertising described in this                           Agreement are first displayed on the Excite Network                           will be the Launch Date for purposes of this                           Agreement.

              d)       Excite will have sole responsibility for providing,                           hosting and maintaining, at its expense, the Excite                           Network.  Excite will have sole control over the                           look and feel of the Excite Network including, but                           not limited to, the display, appearance and placement                           of the parties' respective names and/or brands and                           the promotional links, but such control shall not                           permit Excite to modify Client's logos and trademarks                           and it does not relieve Excite from its obligations                           regarding Client's preferred and dominant sponsorship                           status as set forth elsewhere in this Agreement.

              e)       Advertising banners will be served, tracked and                           reported by Excite's subsidiary, MatchLogic, Inc.                           (MatchLogic) as described in Exhibit B.  MatchLogic                           will also provide Client with feedback as to                           comparisons of the performance of (i) the different                           creative messages supplied by Client for the                           advertising banners, (ii) the placements of those                           advertising banners on the Excite Network as set                           forth in this Agreement and (iii) through the                           implementation of MatchLogic's Closed Loop                           transaction reporting system on the Client Site, will                           report on correlations between transaction activity                           by users referred to the Client Site from the Excite                           Network and the various promotional placements and                           advertising displayed on the Excite Network, all as                           described in Exhibit B.  Promotional placements,                           including text links, will be served, tracked and                           reported by Excite.  These promotional placements                           will be tracked and reported by MatchLogic when this                           implementation becomes available.  Excite will                           provide Client with monthly reports substantiating                           the number of impressions of Client's advertising                           banners and promotional placements displayed on the                           Excite Network.

              f)       As soon as such third party auditing is available to                           Excite, Excite will provide Client with monthly                           reports, including certified reports by a third party                           auditing firm substantiating the number of                           impressions of Client's advertising banners and                           promotional placements displayed on the Excite                           Network.  When available, such third party audit                           reports will be at Excite's cost and expense.

                                    6    7                             CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY                                     WITH THE SECURITIES AND EXCHANGE COMMISSION.                                                      ASTERISKS DENOTE OMISSIONS.

7.               FEES; REVENUE SHARE

               a)      Client will pay Excite sponsorship and advertising                           fees of [*****] for the first twelve (12) month period                           following the Launch Date ([*****]). These fees will                           be paid in twelve (12) equal monthly installments of                           [*****]. The first monthly payment for [*****] will be                           due one month following the Launch Date. Subsequent                           installments will be due on a monthly basis                           thereafter.

              b)       Client will pay Excite sponsorship and advertising                           fees of [*****] for the twelve (12) month period                           following the first anniversary of the Launch Date                           ([*****]).  These fees will be paid in equal monthly                           installments of [*****]. The first monthly payment for                           [*****] will be due one month following the first                           anniversary of the Launch Date.  Subsequent





                       installments will be due on a monthly basis                           thereafter.

              c)       Separate and apart from the sponsorship and                           advertising fees, Client will pay Excite MatchLogic                           DeliverE fees of [*****] for [*****]. These fees will                           be paid in equal monthly installments of [*****]. The                           first monthly payment for [*****] will be due one                           month following the Launch Date.  Subsequent                           installments will be due on a monthly basis.

              d)       Separate and apart from the sponsorship and                           advertising fees, Client will pay Excite MatchLogic                           DeliverE fees of [*****] for [*****].  These fees will                           be paid in equal monthly installments of [*****]. The                           first monthly payment for [*****] will be due one                           month following the first anniversary of the Launch                           Date.  Subsequent installments will be due on a                           monthly basis.

              e)       Separate and apart from the sponsorship and                           advertising fees and the MatchLogic DeliverE fees,                           Client will pay Excite MatchLogic banner and link                           serving fees of [*****] for [*****]. These fees will                           be paid in equal monthly installments of [*****].  The                           first monthly payment for [*****] will be due one                           month following the Launch Date.  Subsequent                           installments will be due on a monthly basis.

              f)       Separate and apart from the sponsorship and                           advertising fees and the MatchLogic DeliverE fees,                           Client will pay Excite MatchLogic banner and link                           serving fees of [*****] for [*****].  These fees will                           be paid in equal monthly installments of [*****]

                                    7    8                             CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY                                     WITH THE SECURITIES AND EXCHANGE COMMISSION.                                                      ASTERISKS DENOTE OMISSIONS.

                       [*****]. The first monthly payment for [*****] will                           be due one month following the first anniversary of                           the Launch Date. Subsequent installments will be due                           on a monthly basis.

              g)       Separate and apart from the sponsorship and                           advertising fees, the MatchLogic DeliverE fees and the                           MatchLogic banner and link serving fees, Client will                           pay Excite [*****] recognized by Client on                           transactions conducted by users referred to the Client                           Site from the Excite Network during [*****]. Separate                           and apart from the sponsorship and advertising fees,                           the MatchLogic DeliverE fees and the MatchLogic banner                           and link serving fees, Client will pay Excite [*****]                           recognized by Client on transactions conducted by                           users referred to the Client Site from the Excite                           Network during [*****] of the term of the Agreement.                           For purposes of this Agreement Net Revenue means                           gross revenue recognized by Client on transactions                           conducted by users referred to the Client Site from                           the Excite Network minus sales tax, sales returns and                           allowances.  Client will pay Excite these revenue                           share payments within thirty (30) days after the close                           of the financial quarter in which Client recognizes                           the Net Revenue on these transactions.

              h)       The fees and revenue share payments are net of any                           agency commissions to be paid by Client.

              i)       Client will maintain accurate records with respect to                           the calculation of all payments due under this                           Agreement.  Once per year, the parties will review                           these records to verify the accuracy and appropriate                           accounting of all payments made pursuant to the                           Agreement.  In addition, Excite may, upon no less                           than thirty (30) days prior written notice to Client,                           cause an independent Certified Public Accountant to                           inspect the records of Client reasonably related to                           the calculation of such payments during Client's                           normal business hours.  The fees charged by such                           Certified Public Accountant in connection with the





                       inspection will be paid by Excite unless the payments                           made to Excite are determined to have been less than                           ninety-five percent (95%) of the payments actually                           owed to Excite, in which case Client will be                           responsible for the payment of the reasonable fees                           for such inspection.

8.               PUBLICITY

              Unless required by law, neither party will make any public                  statement, press release or other announcement relating to the                  terms of or existence of this Agreement without the prior                  written approval of the other.  Notwithstanding the foregoing,                  either party may issue an initial press release regarding the                  relationship between Excite and Client, the timing and wording                  of which will be mutually agreed upon, and nothing herein                  shall preclude Client from promoting the Client Site.

                                    8    9                             CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY                                     WITH THE SECURITIES AND EXCHANGE COMMISSION.                                                      ASTERISKS DENOTE OMISSIONS.

9.               TERM AND TERMINATION

              a)       Unless terminated earlier in accordance with the                           specific terms of this Agreement, the term of this                           Agreement will begin on the Launch Date and will not                           end until Excite displays a total of [*****]                           impressions of the Client advertising banners and                           promotional placements on the Excite Network as                           described in this Agreement and pushes [*****]                           emails using the email vehicles specified in Exhibit                           B.  Regardless of Excite's actual delivery of                           impressions, the term of this Agreement will not be                           shorter than [*****]  after the Launch Date,                           unless the Agreement is terminated earlier in                           accordance with the specific terms of this Agreement.

              b)       Either party may terminate this Agreement if the                           other party materially breaches its obligations                           hereunder and such breach remains uncured for thirty                           (30) days following the notice to the breaching party                           of the breach.

              c)       All undisputed payments that have accrued prior to                           the termination or expiration of this Agreement will                           be payable in full within thirty (30) days thereof.

              d)       The provisions of Section 12 (Confidentiality and                           User Data), Section 13 (Indemnity), Section 14                           (Limitation of Liability) and Section 15 (Dispute                           Resolution) will survive any termination or                           expiration of this Agreement.

              e)       Excite guarantees to deliver the annual impressions                           totals set forth in Exhibit C hereto.  If Excite                           fails to deliver the indicated number of impressions                           required during any annual period, Client may suspend                           (but not eliminate) its payments specified in Section                           7 for a maximum of sixty (60) days (the Make-Good                           Period) during which Excite will deliver the                           shortfall of such impressions.  The parties agree to                           cooperate in good faith to evaluate the quality and                           performance of the placements used to deliver the                           impressions during the Make-Good Period.  Until such                           shortfall is delivered, no impressions will be deemed                           delivered for the next annual period.  If Excite has                           not achieved the required annual impression delivery                           by the end of the Make-Good Period, Client may then                           terminate this Agreement upon written notice within                           ten (10) days following the end of the Make-Good                           Period.  Client's termination of the Agreement in                           accordance with the previous sentence will not                           relieve Excite of its obligation to deliver any                           previously paid for but undelivered impressions.  If                           Excite achieves the annual impression delivery goal                           at any time during the Make-Good Period, the term of                           this Agreement will continue and Client shall                           immediately resume payment of the sponsorship and                           advertising fees specified in Section 7.





                                    9    10                             CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY                                     WITH THE SECURITIES AND EXCHANGE COMMISSION.                                                      ASTERISKS DENOTE OMISSIONS.

10.              TRADEMARK OWNERSHIP AND LICENSE

              a)       Client will retain all right, title and interest in                           and to its trademarks, service marks and trade names                           worldwide, subject to the limited license granted to                           Excite hereunder.

              b)       Excite will retain all right, title and interest in                           and to its trademarks, service marks and trade names                           worldwide, subject to the limited license granted to                           Client hereunder.

              c)       Each party hereby grants to the other a                           non-exclusive, limited license to use its trademarks,                           service marks or trade names only as specifically                           described in this Agreement.  All such use shall be                           in accordance with each party's reasonable policies                           regarding advertising and trademark usage as                           established from time to time.  Client agrees to                           obtain Excite's written consent prior to use of                           Excite's logo and trademarks.

              d)       Upon the expiration or termination of this Agreement,                           each party will cease using the trademarks, service                           marks and/or trade names of the other except:

                       i)      As the parties may agree in writing; or

                       ii)     To the extent permitted by applicable law.

11.              OWNERSHIP

              a)       Client will retain all right, title and interest in                           and to the Client Site worldwide including all                           intellectual property rights, including but not                           limited to copyright, trademark, trade secrets,                           patents, moral rights or any derivative rights                           thereof.  Any intellectual property rights, including                           but not limited to copyright, trademark, trade                           secrets, patents, moral rights or any derivative                           rights thereof, created by changes made by Excite to                           Impression Materials are the sole property of Client.

              b)       Excite will retain all right, title, and interest in                           and to the Excite Network worldwide including, but                           not limited to, ownership of all copyrights, look and                           feel and other intellectual property rights therein.

12.              CONFIDENTIALITY AND USER DATA

              a)       For the purposes of this Agreement, Confidential                           Information means information about the disclosing                           party's (or its suppliers') business or activities                           that is proprietary and confidential, which shall                           include all business, financial, technical and other                           information of a party marked or designated by such                           party as confidential or

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                       proprietary or information which, by the nature of                           the circumstances surrounding the disclosure, ought                           in good faith to be treated as confidential.

              b)       Confidential Information will not include information                           that (i) is in or enters the public domain without                           breach of this Agreement, (ii) the receiving party                           lawfully receives from a third party without                           restriction on disclosure and without breach of a                           nondisclosure obligation, (iii) the receiving party                           knew prior to receiving such information from the                           disclosing party or (iv) the receiving party develops                           independent of any information originating from the                           disclosing party.

              c)       Each party agrees (i) that it will not disclose to





                       any third party or use any Confidential Information                           disclosed to it by the other except as expressly                           permitted in this Agreement and (ii) that it will                           take all reasonable measures to maintain the                           confidentiality of all Confidential Information of                           the other party in its possession or control, which                           will in no event be less than the measures it uses to                           maintain the confidentiality of its own information                           of similar importance.

              d)       The usage reports provided by Excite to Client                           hereunder will be deemed to be the Confidential                           Information of Excite.

              e)       The terms and conditions of this Agreement will be                           deemed to be Confidential Information and will not be                           disclosed without the written consent of the other                           party.

              f)       For the purposes of this Agreement, User Data means                           all information submitted by users referred to the                           Client Site from the Excite Network during the term                           of the Agreement.  Such User Data includes, but is                           not limited to, the number of purchase requests                           requested by such users, the number of purchase                           requests completed, the number of purchases completed                           and the dollar values of completed purchases  The                           parties acknowledge that any individual user of the                           Internet could be a user of Excite, WebCrawler and/or                           Client through activities unrelated to this Agreement                           and that user data gathered independent of this                           Agreement, even from individuals who are users of                           both parties' services, will not be deemed to be                           User Data for the purposes of this Agreement.

              g)       User Data will be owned by Client, and subject to the                           limitations contained herein, Client grants to Excite                           a non-exclusive license to use the User Data for the                           purposes of this Agreement.

              h)       In order to facilitate optimization of Client's                           sponsorship program, Client will make good faith                           efforts to develop tracking and reporting                           capabilities to correlate information regarding                           transaction activity by users referred to the Client                           Site from the Excite Network to the various                           promotional placements and advertising banners                           displayed on the Excite Network.  Client will provide                           to Excite all User Data and

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                       user transaction reports collected by Client within                           thirty (30) days following the end of each calendar                           month during the term of this Agreement in a                           mutually-determined electronic format.

              i)       Client will not use User Data to specifically target                           any Excite and/or WebCrawler users, as distinct from                           all users of the Client Site, for solicitations                           (except as specifically provided in this Agreement),                           either individually or in the aggregate, during the                           term of this Agreement and for a period of twelve                           (12) months following the expiration or termination                           of this Agreement.

              j)       Neither party will sell, disclose, transfer or rent                           any User Data which could reasonably be used to                           identify a specific named individual (Individual                           Data) to any third party nor will either party use                           Individual Data on behalf of any third party without                           the express permission of the individual user.  Where                           user permission for dissemination of Individual Data                           to third parties has been obtained, each party will                           use commercially reasonable efforts to require the                           third party recipients of Individual Data to provide                           an unsubscribe feature in any email communications                           generated by, or on behalf of, the third party                           recipients of Individual Data.

              k)       Notwithstanding the foregoing, each party may                           disclose Confidential Information or User Data (i) to                           the extent required by a court of competent                           jurisdiction or other governmental authority or                           otherwise as required by law or (ii) on a





                       need-to-know basis under an obligation of                           confidentiality to its legal counsel, accountants,                           banks and other financing sources and their advisors.

13.              INDEMNITY

              a)       Client will indemnify, defend and hold harmless                           Excite, its affiliates, officers, directors,                           employees, consultants and agents from any and all                           third party claims, liability, damages and/or costs                           (including, but not limited to, attorneys fees)                           arising from:

                       i)      Its breach of any representation or covenant                                   in this Agreement; or

                       ii)     Any claim that Client's Impression Material                                   infringes or violates any third party's                                   copyright, patent, trade secret, trademark,                                   right of publicity or right of privacy or                                   contain any defamatory content; or

                       iii)    Any claim that Client's Impression Material                                   and/or its display on the Excite Network                                   violates any federal, state or local laws,                                   regulations or statutes, including but not                                   limited to restrictions on the sale,                                   advertisement or promotion of vitamins,                                   nutritional supplements, drugs or other                                   health-related products; or

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                       iv)     Any claim of personal injury or product                                   liability with respect to products or                                   services sold, advertised or otherwise                                   offered to consumers or third parties through                                   display of Client's Impression Material on                                   the Excite Network or links to the Client                                   Site; or

                       v)      Any claim arising from content displayed on                                   the Client Site.

                       Excite will promptly notify Client of any and all                           such claims and will reasonably cooperate with Client                           with the defense and/or settlement thereof; provided                           that, if any settlement requires an affirmative                           obligation of, results in any ongoing liability to or                           prejudices or detrimentally impacts Excite in any way                           and such obligation, liability, prejudice or impact                           can reasonably be expected to be material, then such                           settlement shall require Excite's written consent                           (not to be unreasonably withheld or delayed) and                           Excite may have its own counsel in attendance at all                           proceedings and substantive negotiations relating to                           such claim.

              b)       Excite will indemnify, defend and hold harmless                           Client, its affiliates, officers, directors,                           employees, consultants and agents from any and all                           third party claims, liability, damages and/or costs                           (including, but not limited to, attorneys fees)                           arising from:

                       i)      Its breach of any representation or covenant                                   in this Agreement; or

                       ii)     Any claim arising from the Excite Network                                   other than content or services provided by                                   Client.

                       Client will promptly notify Excite of any and all                           such claims and will reasonably cooperate with Excite                           with the defense and/or settlement thereof; provided                           that, if any settlement requires an affirmative                           obligation of, results in any ongoing liability to or                           prejudices or detrimentally impacts Client in any way                           and such obligation, liability, prejudice or impact                           can reasonably be expected to be material, then such                           settlement shall require Client's written consent                           (not to be unreasonably withheld or delayed) and                           Client may have its own counsel in attendance at all                           proceedings and substantive negotiations relating to                           such claim.





              c)       EXCEPT AS SPECIFIED IN THIS AGREEMENT, NEITHER PARTY                           MAKES ANY WARRANTY IN CONNECTION WITH THE SUBJECT                           MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND                           ALL IMPLIED WARRANTIES, INCLUDING ALL IMPLIED                           WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A                           PARTICULAR PURPOSE REGARDING SUCH SUBJECT MATTER.

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14.              LIMITATION OF LIABILITY

              EXCEPT UNDER SECTIONS 13(a) AND 13(b), IN NO EVENT WILL EITHER                  PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL OR                  CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT,                  TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT                  PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.                  EXCEPT UNDER SECTIONS 13(a) AND 13(b), THE LIABILITY OF EITHER                  PARTY FOR DAMAGES OR ALLEGED DAMAGES HEREUNDER, WHETHER IN                  CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO, AND                  WILL NOT EXCEED, THE AMOUNTS TO BE PAID BY CLIENT TO EXCITE                  HEREUNDER.

15.              DISPUTE RESOLUTION

              a)       The parties agree that any breach of either of the                           parties' obligations regarding trademarks, service                           marks or trade names, confidentiality and/or User                           Data would result in irreparable injury for which                           there is no adequate remedy at law.  Therefore, in                           the event of any breach or threatened breach of a                           party's obligations regarding trademarks, service                           marks or trade names or confidentiality, the                           aggrieved party will be entitled to seek equitable                           relief in addition to its other available legal                           remedies in a court of competent jurisdiction.

              b)       In the event of disputes between the parties arising                           from or concerning in any manner the subject matter                           of this Agreement, other than disputes arising from                           or concerning trademarks, service marks or trade                           names, confidentiality and/or User Data, the parties                           will first attempt to resolve the dispute(s) through                           good faith negotiation.  In the event that the                           dispute(s) cannot be resolved through good faith                           negotiation, the parties will refer the dispute(s) to                           a mutually acceptable mediator.

              c)       In the event that disputes between the parties                           arising from or concerning in any manner the subject                           matter of this Agreement, other than disputes arising                           from or concerning trademarks, service marks or trade                           names, confidentiality and/or User Data, cannot be                           resolved through good faith negotiation and                           mediation, the parties will refer the dispute(s) to                           the American Arbitration Association for resolution                           through binding arbitration by a single arbitrator                           pursuant to the American Arbitration Association's                           rules applicable to commercial disputes.

16.              GENERAL

              a)       Assignment.  Neither party may assign this Agreement,                           in whole or in part, without the other party's                           written consent (which will not be unreasonably                           withheld or delayed), except that no such consent                           will be required in connection with (i) a merger,                           reorganization or sale of all, or substantially all,                           of such party's assets or its

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                       Internet business assets (ii) either party's                           assignment and/or delegation of its rights and





                       responsibilities hereunder to a wholly-owned                           subsidiary or affiliate or joint venture in which the                           assigning party holds an interest.  Any attempt to                           assign this Agreement other than as permitted above                           will be null and void.

              b)       Governing Law.  This Agreement will be governed by                           and construed in accordance with the laws of the                           State of California, notwithstanding the actual state                           or country of residence or incorporation of Excite or                           Client.

              c)       Notice.  Any notice under this Agreement will be in                           writing and delivered by personal delivery, express                           courier, confirmed facsimile, confirmed email or                           certified or registered mail, return receipt                           requested, and will be deemed given upon personal                           delivery, one (1) day after deposit with express                           courier, upon confirmation of receipt of facsimile or                           email or five (5) days after deposit in the mail.                           Notices will be sent to a party at its address set                           forth in this Agreement or such other address as that                           party may specify in writing pursuant to this                           Section.

              d)       No Agency.  The parties are independent contractors                           and will have no power or authority to assume or                           create any obligation or responsibility on behalf of                           each other.  This Agreement will not be construed to                           create or imply any partnership, agency or joint                           venture.

              e)       Force Majeure.  Any delay in or failure of                           performance by either party under this Agreement will                           not be considered a breach of this Agreement and will                           be excused to the extent caused by any occurrence                           beyond the reasonable control of such party                           including, but not limited to, acts of God, power                           outages and governmental restrictions.

              f)       Severability.  In the event that any of the                           provisions of this Agreement are held to be                           unenforceable by a court or arbitrator, the remaining                           portions of the Agreement will remain in full force                           and effect.

              g)       Entire Agreement.  This Agreement is the complete and                           exclusive agreement between the parties with respect                           to the subject matter hereof, superseding any prior                           agreements and communications (both written and oral)                           regarding such subject matter.  This Agreement may                           only be modified, or any rights under it waived, by a                           written document executed by both parties.

              h)       Counterparts.  This Agreement may be executed in                           counterparts, each of which will serve to evidence                           the parties' binding agreement.

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VITAMIN SHOPPE INDUSTRIES INC.                     EXCITE, INC.

                                              By:       [SIG]                                    By:      [SIG]    --------------------------------                   --------------------------------

Name: J. Howard                                    Name: Robert C. Hood      ------------------------------                     ------------------------------

Title: President/CEO                               Title: EVP/CFO       -----------------------------                      -----------------------------

Date: 9/23/98                                      Date: 9/29/98      ------------------------------                     ------------------------------

4700 Westside Avenue                               555 Broadway North Bergen, New Jersey 07047                     Redwood City, California 94063                                                    650.568.6000 (voice)                                                    650.568.6030 (fax)





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                                EXHIBIT A

                                 KEYWORDS

                                                                                     acidophilus                   cholesterol              greentree           obesity                 medicine acids                         chondroitin              healing             omega                   aromatherapy adhd                          chromium picolinate      health              organic                 bodybuilding aids                          co q 10                  herb                pinnacle                diet alternative medicine          coenzyme q10             herb tea            pms                     fitness amino acids                   complimentary            herbal              pregnant                herbs andrew weil                   energy                   herbal extracts     pregnancy               health andro complex                 enzymmatic               herbal tea          prenatal                homeopathic androstat                     therapy                  herbal teas         prevention              multivitamins Androstat 100                 essential oils           herbs               protein                 nutrition androstat 6                   ester                    hiv                 protein powders         stress Androstene                    exercise                 holistic            ripped                  vitamins androstenedione               extract                  holistic healing    rna                     vitamin antioxidant                   fat                      holistic medicine   saint john's wort       wellness antioxidants                  fatty acids              homeopathic         saw palmetto            weightloss anxiety                       fen phen                 homeopathic         schiff aphrodisiac                   phen fen                 natrol              sex aphrodisiacs                  fiber                    nature              sexual enhancer aroma                         fitness                  natural             steroids aromatherapy                  garry null               natural food        solaray atkins                        ginkgo                   supplements         source natural bodybuilder                   ginkgo biloba            natural healing     sports nutrition bodybuilders                  ginseng                  natural medicine    st. johns wort bodybuilding                  glucosamine              natures way         st john's wort calcium                       green tea                nature's way        stress cancer                        green tree               nutrition           sulfate cats claw                     greentea                 nutritional         alternative

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                               medicine          remedies coq10             homeopathy           supplement country life      iron                 supplements creatine          kal                  tablets creatine          kava                 teas monohydrate depression        kava kava            twinlab diet              lactose              vegetarian dietary           magnesium            vegetarians dione             melatonin            viagra disease           mental alertness     vitamin dna               MetRx                vitamins dr. andrew weil   mother nature        vitasave dr. atkins        mother's nature      weight lifting dr. weil          msm                  weight loss dr. wiel          msm sulphur          weightlifting eas               multivitamins        weightloss echinacea         natrol               wellness                                        yohimbe

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                                EXHIBIT B

                           MATCHLOGIC SERVICES

AD MANAGEMENT, MEASUREMENT & OPTIMIZATION Ad Management, Measurement and Optimization refers to the suite of services and technologies to be used to measure and evaluate variables contributing to the performance of client marketing messages within the Excite Network. Descriptions of the services and technologies to be leveraged throughout the





optimization process are highlighted below.

CENTRALIZED AD SERVING Through its proprietary centralized ad serving infrastructure, MatchLogic will facilitate the trafficking, delivery, tracking and reporting of Client's banners throughout the Excite Network.  During the ad management process, MatchLogic will employ TrueCount(sm) cache counting techniques as the underlying measurement technology for the reporting of client campaign performance data.  Basic campaign performance data including primary impressions, clicks, click %, cache impressions and total impressions will be supplied to Client daily through an online interface.

TRUEFFECT(sm) TruEffect(sm) refers to the process of establishing, tracking and communicating the relationship between locations from which users have interacted with Client's marketing messages and the activities they engaged in at the Client Site as a result of these interactions.  TruEffect(sm) measurement will allow Client to directly relate user activity within the Client Site to marketing messages within the Excite Network.  As a result of these measurements, Client will have the ability to optimize campaigns in order to drive actual user activities or transactions.  Client will be able to identify the number of unique visitors coming to the Client Site or promotional areas, from which message and area they originated, and the number of measurable transactions these visitors performed.  Additionally, measurements of reach and frequency will accompany this analysis.

Upon successful implementation of TruEffect(sm), performance reporting will be available to Client on a daily basis through an online interface.

LANDSCAPE(sm) LandscapE(sm) demographic profile reports will afford Client an effective means of understanding the visitor segments exposed to Client's messages or interacting with Client sponsored content areas within the Excite Network.  All of the information contained within the demographic profiles is derived from consumers who have been both exposed to an advertising campaign and are also within MatchLogic's Digital 1:1(sm) database (MatchLogic's proprietary consumer database).  When a subset of unique visitors taken from all visitors exposed to a Client's marketing message or content area are matched against the Digital 1:1(sm) database, demographic profiles are derived.  The matched records create a sample of visitors that are used to demographically represent and statistically profile

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each visitor segment.  These profiles will allow Client to compare its understanding of its customers offline to its customers online as a basis for more effective segmenting and future targeting.

LandscapE(sm) reports are generated on a campaign basis and will include measurements of campaign reach by Age, Gender, Age/Gender, Household Income, and Household Income/Age.  These reports will be made available to Client once statistically significant profiles have been established.

TRUESELECT(sm) TrueSelect(sm) is MatchLogic's centralized advertising targeting system. TrueSelect(sm) enables MatchLogic to project demographics of users across the Internet based on our Digital 1:1 database, user traffic and user search patterns.  The first implementation of this technology will be Virtual Keywords slated for release in 4Q98.  Virtual Keywords will allow MatchLogic to actively target a user on the Excite Network based on the user's input of search terms at a previous point in time.  TrueSelect(sm) will be able to track and target users by Virtual Keywords on both an inter-day and intra-day basis.  Following Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively target specific users based on predetermined demographic or lifestyle information in real time.

Upon release of this technology, delivery of TrueSelect(sm) targeted messaging for Client is highly dependent on a number of qualifying criteria.  A critical qualifier for the implementation of TrueSelect(sm) will be the establishment of a significant behavioral profile target for Client's customers as highlighted within the LandscapE(sm) services description above.

DELIVERE(sm) DeliverE(sm), MatchLogic's email marketing service will be leveraged to deliver email marketing campaigns on behalf of Vitamin Shoppe.  The DeliverE(sm) team will consult with Client to evaluate current business objectives (branding, acquisition, retention, reactivation, etc.) and develop e-mail strategies that meet these specific objectives.  Once appropriate strategies have been established, MatchLogic will target both MatchLogic and Excite registered users for the facilitation of the Client's program.  Performance results for these campaigns will be provided to Client and assist in the development of strategies for subsequent e-mail campaigns.





Projected delivery schedules for DeliverE(sm) services over the [*****]-year term of this agreement are as follows.

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are matched against the Digital 1:1(sm) database, demographic profiles are derived. The matched records create a sample of visitors that are used to demographically represent and statistically profile each visitor segment. These profiles will allow Client to compare its understanding of its customers offline to its customers online as a basis for more effective segmenting and future targeting.

LandscapE(sm) reports are generated on a campaign basis and will include measurements of campaign reach by Age, Gender, Age/Gender, Household Income, and Household Income/Age. These reports will be made available to Client once statistically significant profiles have been established.

TRUESELECT(sm)

TrueSelect(sm) is MatchLogic' centralized advertising targeting system. TrueSelect(sm) enables MatchLogic to project demographics of users across the Internet based on our Digital 1:1 database, user traffic and user search patterns. The first implementation of this technology will be Virtual Keywords stated for release in 4Q98. Virtual Keywords will allow MatchLogic to actively target a user on the Excite Network based on the user's input of search terms at a previous point in time. TrueSelect(sm) will be able to track and target users by Virtual Keywords on both an inter-day and intra-day basis. Following Virtual Keywords, TrueSelect(sm) capabilities will enable marketers to actively target specific users based on predetermined demographic or lifestyle information in real time.

Upon release of this technology, delivery of TrueSelect(sm) targeted messaging for Client is highly dependent on a number of qualifying criteria. A critical qualifier for the implementation of TrueSelect(sm) will be the establishment of a significant behavioral profile target for Client's customers as highlighted within the LandscapE(sm) services description above.

DELIVERE(sm)

DeliverE(sm), MatchLogic's email marketing service will be leveraged to deliver email marketing campaigns on behalf of Vitamin Shoppe. The DeliverE(sm) team will consult with Client to evaluate current business objectives (branding, acquisition, retention, reactivation, etc.) and develop e-mail strategies that meet these specific objectives. Once appropriate strategies have been established, MatchLogic will target both MatchLogic and Excite registered users for the facilitation of the Client's program. Performance results for these campaigns will be provided to Client and assist in the development of strategies for subsequent e-mail campaigns.

Projected delivery schedules for DeliverE(sm) services over the [*****]-year term of this agreement are as follows.

[*****] TESTS                    INCLUSIONS                    VOLUME - ----------------------------------------------------------------------------                                                   12 Exclusive Offer       2 e-mail offer tests          [*****] Tests                          Push against best offer       [*****]

                      Target model creation         [*****]

                      Model role-out                [*****] - ---------------------------------------------------------------------------- 7 Prospecting Co-op      Offer role-out to co-op       [*****] Tests                    file - ----------------------------------------------------------------------------                                                        [*****] - ----------------------------------------------------------------------------

[*****] TESTS                    INCLUSIONS                    VOLUME - ----------------------------------------------------------------------------                                                   12 Exclusive Offer       2 e-mail offer tests          [*****] Tests                          Push against best offer       [*****]





                      Target model creation         [*****]

                      Model role-out                [*****] - ---------------------------------------------------------------------------- 13 Prospecting Co-op     Offer role-out to co-op       [*****] Tests                    file - ----------------------------------------------------------------------------                                                        [*****] - ----------------------------------------------------------------------------

Above listed DeliverE(sm) services are to be allocated to meet Client's needs and overall production schedule.

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                                EXHIBIT C

                   ANNUAL IMPRESSION DELIVERY SCHEDULE

Vitamin Shoppe Industries WC/Excite Placement Details       *LINE ITEM PLACEMENTS AND IMPRESSIONS ARE                                   ESTIMATES ONLY AN WILL CHANGE OVER TIME

EXHIBIT C

Products                        Description                            Item #   [*****] Estimated   [*****] Estimated       TOTALS                                                                          in         IMPS                IMPS                                                                       Contract                                                                                                                   Excite Integrated Links Excite Japan                        Sponsorship/Promotion Positions       #3b      [*****]              [*****]             [*****] Excite Nutrition & Vitamins         Sponsorship/Promotion Positions       #3c      [*****]              [*****]             [*****]                                                                                                                                   0                                                                                                                                   0                                                                                                                                   0 - ---------------------------------------------------------------------------------------------------------------------------- Excite Links, subtotal                                                             [*****]              [*****]             [*****] - ----------------------------------------------------------------------------------------------------------------------------      Excite Banners NONE - ---------------------------------------------------------------------------------------------------------------------------- Excite Banner subtotal                                                             [*****]              [*****]             [*****] - ---------------------------------------------------------------------------------------------------------------------------- Excite Links/Banner subtotal                                                       [*****]              [*****]             [*****] - ----------------------------------------------------------------------------------------------------------------------------      WebCrawler Integrated Links WC Health Home Page                 Home Page Rotation                    #1b      [*****]              [*****]             [*****] WC Nutrition & Vitamin Sub Channel  Link                                  #1c      [*****]              [*****]             [*****] WC Health Channel                   Promotional Opportunities,                     [*****]              [*****]             [*****]                                     i.e., alternative medicine            #1d WC Health Channel                   Sponsorship Strip                     #1e      [*****]              [*****]             [*****] WC Shopping Channel                 Under Health & Fitness Sub                                     Channel                               #2b      [*****]              [*****]             [*****] WC Shopping Channel                 Under Health & Fitness/                                     Groceries Sub Channel                 #2c      [*****]              [*****]             [*****]                                                                                                                                   0                                                                                                                                   0                                                                                                                                   0 - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Links Subtotal                                                          [*****]              [*****]             [*****] - ----------------------------------------------------------------------------------------------------------------------------      WebCrawler Banners

WC Keywords                         Search                                #5a      [*****]              [*****]             [*****] WC Health Channel                   Channel Rotation                      #5b      [*****]              [*****]             [*****] WC Health Channel                   Mutually determined departments       #5c      [*****]              [*****]             [*****] WC General Rotation                 General Rotation across WC site       #5d      [*****]              [*****]             [*****]                                                                                                                                  0 - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Banner subtotal                                                         [*****]              [*****]             [*****] - ---------------------------------------------------------------------------------------------------------------------------- WebCrawler Links/Banner subtotal                                                   [*****]              [*****]             [*****] - ----------------------------------------------------------------------------------------------------------------------------                                                                                                                                  0 - ----------------------------------------------------------------------------------------------------------------------------                                                                                                                                  0 - -----------------------------------------------------------------------------------------------------------------------------------                                                                                                                                  0 - ----------------------------------------------------------------------------------------------------------------------------------- S&P Links Total                                                                    [*****]              [*****]             [*****] S&P Banner Total                                                                   [*****]              [*****]             [*****]





- ---------------------------------------------------------------------------------------------------------------------------- Grand Total                                                                        [*****]              [*****]             [*****] - ----------------------------------------------------------------------------------------------------------------------------

Vitamin Shoppe E Sponsorship Agr/bja Version 980918

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During the term of the Agreement, the parties agree to cooperate in good faith and use commercially reasonable efforts to evaluate the quality and performance of the placements used to deliver the impressions described in the Agreement and to modify such placements in an effort to reach the objectives set forth in this Agreement.

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                                EXHIBIT D

                           CLIENT'S COMPETITORS

Acta Pharmacal                               Nutritional Warehouse All Vitamins                                 Phillips Nutritional Austin Nutritional                           Puritans Pride BenSalem Naturals                            Reach4life B-Vital                                      Realtime Chayas Chemical-Free                         S. Shiraishi Office, Inc. Cherokee Naturals, Inc                       Shop Vitamins Club Vitamin                                 The Herb Shop GNC                                          The Herb Shoppe Good Life Nutrition                          The Nickel and Thyme Shoppe Green Tree                                   The Vitamin Source Green Turtle Bay Vitamin                     The Vitamin Tree Greenshack Direct                            US Health Distributors, Inc Health and Vitamin Express                   Vita Save Health Depot                                 VitaCare Infinity 2                                   VitaFit Jamieson Natural Sources                     Vital Life Karemore Vitamin Company                     Vitamin Depot Kava Systems                                 Vitamin Express L & H Vitamins                               Vitamin House Life Plus Vitamins                           Vitamin House MineralNet                                   Vitamin Shack Mother Nature's General Store                Vitamin Warehouse, Inc. Mountain Naturals Vitamins                   Vitamins for Life My Vitamins                                  Vitamins Online Nature Sunshine                              Vitamins.com Nature Sunshine Herb and Vitamins            Vitanet Noah's Ark                                   Vitawise Nutritional Direct                           Wholesale Vitamins

                                    24 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

Answer:
53891