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

Input: Consider Input: EXHIBIT 10.26   ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     FLEET MAINTENANCE AGREEMENT

   1. Definitions     1.1 In this Agreement:     1.1.1 the following expressions have the following meanings unless inconsistent with the context:     the Act means the Employment Rights Act 1996.     Additional Charges means the charges to be calculated by SEV on a time and materials basis at the rates described in Clause 7  of this Agreement in respect of the provision of Excepted Services pursuant to Clause 6 of this Agreement.     Agreement means this agreement including the Schedules and the appendix made between SEV and DCL     Bodywork means, without limitation, the panels, doors, glazing, trim, seating and any custom built additions not supplied by  the original Vehicle manufacturer     CDV means an Engine powered car derived van included in this Agreement     Charger means the battery charger and related equipment of an EGV.     Chassis means the main frame, sub-frames and mounting brackets of the vehicle     Code of Practice means the HMSO code of practice set out in the appendix     Commencement Date means 16 October 2005.     Contracted Period means the period during which this Agreement is in effect.     Contract Procedure Manual means a separate operating manual that identifies procedures and documentation relevant to this  Agreement.     DCL Financial Year means the period of 12 (twelve) months commencing on the first day of each financial year of DCL during  the term of this Agreement as notified by DCL to SEV in writing or as otherwise agreed between the parties in writing (and, in the

            DATED         13 October 2005                   DCL

DAIRY CREST LIMITED (Company no 2085882) whose registered office is at Claygate House, Littleworth Road,  Esher, Surrey KT10 9PN                   SEV

SEV GROUP LIMITED (company no 4463640) whose registered office is at Unit 95/2, Tanfield Lea Industrial  Estate North, Stanley, Co Durham, DH9 9NX





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     absence of such notification or agreement, the period of 12 (twelve) months commencing on 1 April each year during the term of  this Agreement).     EGV means an electric powered goods vehicle included in this Agreement.     Employees means the employees employed by SEV during the Contracted Period who provide the Maintenance Services,  including but not limited to the Transferring Employees and/or the Future Transferring Employees     Employment Costs means all salaries, wages, commissions, bonuses, all statutory contributions, holiday pay (including  payment for accrued but untaken holiday), national insurance contributions, pension contributions made to or on behalf of  an employee, taxation (including all income tax deductible under PAYE) and all other employment costs.     Engine means an internal combustion engine consisting of the main engine block and head plus all the internal components  thereof.     Excepted Services means those services referred to in Clause 6.1 of this Agreement which do not fall within Maintenance  Services.     Final Future Transferring Employees List means the list of Future Transferring Employees who will transfer to DCL and/or a  Replacement Supplier in accordance with Clauses 19 or 20 (as the case may be) upon the Termination Date.     Fleet Size means the total number of Operational Vehicles and Spare Vehicles in use by DCL from time to time and included in  this Agreement.     FTA means Freight Transport Association or such other replacement association or organisation operating in the United  Kingdom from time to time whose aims are to represent the freight transport industry generally     Future Maintenance Services means any services which are the same as or similar to the Maintenance Services, which will be  provided by DCL and/or any Replacement Supplier after the Termination Date.     Future Transfer Date means the date(s) on which the Future Transferring Employees are transferred to DCL and/or any  Replacement Supplier pursuant to Clauses 19 or 20 (as the case may be).     Future Transferring Employees means any employee of SEV who is wholly or mainly assigned to work in the provision of the  Maintenance Services immediately prior to the Termination Date and whose employment is liable to transfer to DCL and/or any  Replacement Supplier pursuant to Clauses 19 or 20 (as the case may be).     Liabilities includes without limitation all costs, expenses, losses, damages, claims, proceedings, awards, fines, orders  (including, but not limited to, any order or notice issued by the Pensions Regulator) and other liabilities (including reasonable  legal and other professional fees and expenses) whenever arising or brought     2





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     LGV means an Engine powered large (over 7.5t gross vehicle weight) goods vehicle included in this Agreement.     Maintenance Agreement means the agreement entered into by DCL and SEV on 28 March 1999.     Maintenance Charges means the aggregate charge for the Maintenance Services calculated in accordance with Clause 3 of  this Agreement.     Maintenance Rate means the weekly charge levied by SEV to DCL tor each Vehicle included in this Agreement and set out in  Schedule One.     Maintenance Services means the provision of maintenance services as defined in Clause 4 of this Agreement.     MGV means an Engine powered medium (over 3.5t but less than 7.5t gross vehicle weight) goods vehicle included in this  Agreement.     Opening Fleet Size means the Fleet Size on the later of the Commencement Date of the first day of any DCL Financial Year and  stated in Schedule One     Operational Vehicles means Vehicles from time to time that are in regular use in the course of DCL business     Permitted Sub-Contractor means any person who SEV appoints to undertake work as all or part of the Maintenance Services  pursuant to Clause 11 below.     PG9 Notice means a PG9 Notice issued by VOSA.     Place of Repair means any agreed location where the Vehicles are serviced or repaired     Place of Use means any location within the local vicinity of the Site where the Vehicles are operated.     Provisional Future Transferring Employees List means the list of Future Transferring Employees who SEV believes will transfer  to DCL and/or a Replacement Supplier in accordance with Clauses 19 or 20 (as the case may be) upon the Termination Date.     Redundancy Costs means in relation to each Transferring Employee the amount designated as such in Schedule Two and  calculated as the sum of:-     (i) the statutory redundancy payment (calculated in accordance with section 162 of the Act) to which such Transferring  Employee would have been entitled had he been dismissed by reason of redundancy with effect from the  Commencement Date;     (ii) any contractual entitlement to additional redundancy or severance pay (including any such entitlement arising by virtue of  custom and practice) which would accrue to such Transferring Employee were he dismissed in such circumstances.     3





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     (iii) the contractual notice pay (or payment in lieu of notice) which would have been payable to such Employee in such  circumstances together with any additional notice pay which would have been payable by virtue of section 86(1) of the  Act.     (iv) all income tax and national insurance contributions properly payable in connection with the payments set out in (i) to (iii)  above      but subject to variation in accordance with clause 11.7.     Regulations means the Transfer of Undertakings (Protection of Employment) Regulations 1981 (as amended).     Replacement Supplier means any person employed or engaged to provide to DCL services similar to the Maintenance Services  provided prior to the Termination Date.     Retail Price Index means the UK Index of Retail Prices (All Items) maintained by the Central Office of Information calculated by  reference to the published figures in respect of such Index current at the last day of December in each year during the term of  this Agreement. In the event of the abolition or a fundamental variation in the basis of the said Index prior to the date upon  which the Retail Price Index is to be applied hereunder, the parties shall, at their mutual expense, obtain the opinion of an  independent Fellow of the Institute of Chartered Accountants in England and Wales as to the increase which ought to be made  (having regard to such varied or substituted index or indices as he considers appropriate) and the opinion of such accountant  (who shall act as an expert and not as an arbitrator) shall be final and binding on the parties     Schedule One means the Schedule One hereto setting out the variable terms of this Agreement and to be revised by SEV on  the first day of each DCL Financial Year following which a signed copy of the new Schedule One shall be attached to each part  of this Agreement.     SGV means an Engine powered small (up to 3.5t gross vehicle weight) goods vehicle included in this Agreement.     Site means the addresses of DCL premises where the Vehicles are stored when not in use.     Spare Vehicles means Vehicles held in a maintained and roadworthy condition for occasional use by DCL     Surplus Vehicles means Vehicles from time to time no longer in use by DCL either as Operational Vehicles or Spare Vehicles.     Termination Date means the date on which this Agreement terminates pursuant to Clause 16     Transferring Employees means the persons employed by DCL who are providing the Maintenance Services or services which  are the same or similar to the Maintenance Services immediately before the Commencement Date whose contracts of employment  after the Commencement Date will be or are deemed effected between     4





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     SEV and such persons under Regulation 5 of the Regulations and who are listed in Schedule Two.     Vehicle means any vehicle included in this Agreement.     VOSA means the Vehicle and Operator Services Agency     1.1.2 references to any statute or statutory provision include, unless she context otherwise requires, a reference to the statute or  statutory provision as modified or reenacted and in force from time to time prior to the Commencement Date and any subordinate  legislation made under the relevant statute or statutory provision in force prior to the Commencement Date;     1.1.3 references to persons will include bodies corporate, unincorporated associations and partnerships;     1.1.4 references to a document being in the agreed terms are to that document in the form agreed and for the purposes of  identification initialled by or on behalf of DCL and SEV;     1.1.5 all obligations, representations and warranties on the part of two or more persons are entered into, given or made by such  persons jointly and severally;     1.1.6 references to the singular include the plural and vice versa;     1.1.7 references to Clauses and Schedules are to Clauses of and Schedules to this Agreement, and references to paragraphs are  to paragraphs in the Schedule in which such references appear;     1.1.8 the Schedules form part of this Agreement and will have the same force and effect as if expressly set out in the body of this  Agreement;     1.1.9 the headings in this Agreement will not affect its interpretation; and     1.1.10 any phrase introduced by the term include, including, in particular or any similar expression will be construed as  illustrative and will not limit the sense of the words preceding that term.     1.2 SEV and DCL hereby expressly agree that this Agreement shall replace and take precedence over any terms set out in the  Maintenance Agreement. Accordingly, SEV and DCL hereby agree that the Maintenance Agreement is deemed to have been  terminated by them with effect from the date of this Agreement.     1.3 Within a period of three months of the Commencement Date, DCL shall enter into a master contract hire agreement with SEV (or SEV's  nominated third party finance provider) in respect of the supply of all DCL's requirements for new small (up to 3.5t gross vehicle  weight) goods vehicles for an initial period of 18 (eighteen) months from the Commencement Date. On completion of this initial  18 (eighteen) month period, and at each 18 (eighteen) month interval thereafter during the continuance of this Agreement, DCL  will review the contracted rates and provided the rates remain within     5





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     the same competitive framework as the original agreement, DCL will renew the master contract hire agreement for a further 18  (eighteen) months.     2. SEV's Obligations     In consideration of the payment by DCL from time to time of the Maintenance Charges in accordance with the provisions of Clause 3  below SEV shall during the term of this Agreement.     2.1 provide the Maintenance Services in respect of the vehicles upon the terms and conditions of this Agreement and with all due skill,  care and diligence using goods of satisfactory qualify and fit for the purpose;     2.2 ensure the Vehicles are in a roadworthy condition and comply with all relevant legal and statutory requirements so far as the same is  possible by the provision of the Maintenance Services, however, SEV shall not be liable under this Clause 2.2 in the event that  the Vehicles are not in a roadworthy conditions due to DCL breaching a term of its obligations under Clause 9 or the Code of  Practice;     2.3 abide by the health and safety policy from time to time of DCL whilst working on DCL property (subject to the prior notification of any  changes to the same by DCL to SEV);     2.4 advise DCL in writing in the event of a Vehicle not meeting its maintenance schedule for reason of being unavailable to SEV for  Maintenance Services;     2.5 provide to DCL a defect reporting book and annual service schedule chart for each Site;     2.6 provide a freefone' number for reporting out-of-hours breakdowns;     2.7 provide the following reports to DCL in a format as agreed with DCL;     2.7.1 weekly overdue service status current to date of printing;     2.7.2 monthly Vehicles serviced report;     2.7.3 monthly notification of any CDV, SGV, MGV or LGV predicted to exceed 25,000 miles per annum;     2.7.4 monthly fleet list of the Vehicles included in the Fleet Size for the purposes of calculating Maintenance Charges;     2.7.5 any further reports that may be reasonably requested by DCL from time to time;     2.8 provide suitable storage for vehicle records and reports of Maintenance Services for a period of 3 years from the date the  Maintenance Services took place and allow DCL access to them on request and at the end of this period deliver said documents  to a designated UK location as requested by DCL;     2.9 advise DCL in the event of SEV being aware of obsolete components that have a widespread usage on the Vehicles;     6





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     2.10 use its reasonable endeavours to suggest and/or implement such new processes or procedures as may be deemed reasonable by SEV  in the circumstances or as may be reasonably requested by DCL in order to ensure that the Maintenance Services are provided  in an efficient and effective way.     3. Maintenance Charges     3.1 The Maintenance Charges shall be the aggregate charge during the continuance of this Agreement calculated calendar monthly in  advance using the prevailing Fleet Size and the Maintenance Rate for each Vehicle included therein.     3.2 The Maintenance Charges shall not include the cost of any Excepted Services.     3.3 The Maintenance Charges shall be invoiced by SEV calendar monthly in advance and shall be payable by DCL within fourteen days  of the invoice date.     3.4 SEV shall not be entitled to Maintenance Charges in respect of any Vehicle which is more than two weeks overdue for service  inspection through no fault of DCL during the period from the week ending date when such inspection becomes two weeks  overdue until the week ending date that the service inspection is duly carried out. DCL shall be entitled to receive a refund in  respect of any such amounts that have already been paid and such refund to be made by credit note issued by SEV each week  that the Vehicle remains overdue for service inspection.     3.5 Maintenance Charges shall be increased annually on the first day of each DCL Financial Year in line with the last published Retail  Price Index and stated in Schedule One effective for the following year of this Agreement, a signed copy of which shall be  attached to each copy of this Agreement.     3.6 Subject to a genuine dispute, SEV reserves the right to charge DCL interest in respect of the rate payment of any Maintenance  Charges or Additional Charges due under this Agreement at the rate of 3% per annum above the base rate from time to time of  Lloyds TSB Bank PLC from the due date therefor until payment (as well after as before any judgement binding on either party).     4. Maintenance Services     The Maintenance Services shall comprise the provision by SEV during the continuance of this Agreement of the following:     4.1 servicing and inspections at intervals stated in Schedule One using the FTA report form for SGV, MGV, LGV and CDV and SEV's  report form for EGV;     4.2 preparation and submission of SGV, MGV, LGV and CDV for the relevant annual VOSA test;     7





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     4.3 recalibration and resealing of tachograph equipment on MGV and LGV to VOSA requirements;     4.4 in respect of transport refrigeration equipment on MGV and LGV up to eight years old, servicing and inspections at intervals stated in  Schedule One and repairs as required;     4.5 in respect of tail-lift equipment on MGV and LGV up to eight years old, preventative maintenance inspections at intervals stated in  Schedule One and repairs as required to the electrical and hydraulic systems but not to the main frame, sub-frames, platform  or mountings;     4.6 labour and parts to make repairs to Vehicles and Chargers due to normal wear and tear;     4.7 tyre inspections every month, puncture repairs and replacement of tyres with equal to or less than 2mm of tread remaining and in the  event of the Company failing to change a tyre with equal to or less than 2mm of tread remaining that is identified on the monthly  inspection or which is not available for inspection and the Customer is not informed as such, issue a credit note to the Customer  equal to two weeks Maintenance Charge for the Vehicle concerned;     4.8 transport to and from the Place of Repair;     4.9 respond to Vehicle breakdowns within two hours of receiving notification of the breakdown either by attending to the Vehicle if  located at the Place of Use or by informing DCL of action to be taken if located at the Site. In the event of SEV failing to attend at  the Place of Use within two hours then a senior representative of SEV will meet DCL to explain the reason for the failure. SEV  shall undertake necessary repairs or where a repair cannot be completed, recover the vehicle back to the Site or Place of Repair  and record the action taken in the defect reporting book;     4.10 battery topping (and removal of over-spill) at a maximum of fortnightly intervals for EGV;     4.11 replacement of light lenses, mirror glasses, heads and aims, number plates and vehicle charging connectors and parts thereof  damaged through accident or driver abuse;     4.12 minor Bodywork repairs due to normal wear and tear in order to maintain Vehicles in roadworthy condition, specifically:     4.12.1 repairs to locks, catches, handles and hinges;     4.12.2 repairs to seats and seat frames;     4.12.3 repairs to window mechanisms (excluding glass);     4.12.4 minor repairs to remove sharp edges, straighten bent panels, refit bumpers and secure loose items.     8





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     5. Times for Maintenance Services     SEV will provide maintenance Services 24 hours a day Monday to Friday and until 6pm on Saturday (excluding Christmas Day). In the  event of Maintenance Services being provided by SEV at DCL's request outside of this time frame, SEV will levy Additional Charges in  respect of the work earned out at the rates set out in Schedule One.     6. Excepted Services     6.1 The Maintenance Services shall not include:     6.1.1 the transportation or relocation of the Vehicles other than as described in Clause 4.8;     6.1.2 repairs required due to the use (other than by SEV) of defective or inappropriate supplies or accessories;     6.1.3 repairs required due to any disaster affecting the Vehicles inducing without limitation fire, flood, water, wind, lightning,  vandalism or burglary (other than as described in Clauses 4.11 and 4.12);     6.1.4 repairs required due to the neglect, misuse or abuse of the Vehicles by DCL, its employees or agents (other than as  described in Clauses 4.11 and 4.12);     6.1.5 repairs required to rectify damage caused by continuing to operate a Vehicle with a serious defect that should reasonably  have been recognised as such by DCL;     6.1.6 vehicle recovery from the Place Of Use to the Site (or any other location) due to a breakdown caused by a fault not covered  by the Maintenance Services;     6.1.7 repairs or replacement of wheel rims;     6.1.8 repairs or replacement of CDV, SGV, MGV and LGV Engine, gearbox, prop shaft (excluding mountings) and drive axle repairs  or replacement on Vehicles over six years old;     6.1.9 repairs or replacement of transport refrigeration equipment on EGV and SGV; transport refrigeration equipment Engine on  MGV and LGV, and; repairs or replacement of transport refrigeration equipment on MGV and LGV more than eight years  old;     6.1.10 repairs or replacement of tail-lift equipment on EGV and SGV, tail-lift main frame, sub-frames, platform and mountings on  MGV and LGV and, repairs or replacement of tail-lift; equipment on any MGV or LGV more than eight years old;     6.1.11 daily Vehicle checks as specified in the Code of Practice and any damage caused by failing to carry out same;     9





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     6.1.12 oils and fluids required to complete the daily Vehicle checks,     6.1.13 repairs to the Bodywork of the Vehicles other than as described in Clause 4.12;     6.1.14 repairs to the Chassis of the Vehicles;     6.1.15 repairs to the Bodywork as described in Clause 4.12 for a period of thirteen weeks from the Commencement Date;     6.1.16 damage or failure caused by corrosion of the Bodywork or Chassis;     6.1.17 upgrades, conversions and retrofits required due to the obsolescence of the original components used by the vehicle  manufacturer;     6.1.18 repainting (other than to avoid leaving exposed bare metal following repairs described in Clause 4.12.4) or refurbishing of  the Vehicles;     6.1.19 cleaning of the Vehicles save as necessary to complete the Maintenance Services;     6.1.20 traction battery (including boxes and connectors) replacement, maintenance (other than as described in Clause 4.10) and  repair;     6.2 SEV shall upon request by DCL provide all or any of the Excepted Services but shall be entitled to charge for the same by levying  Additional Charges in the manner described in Clause 7.     6.3 Without prejudice to Clause 6.2, SEV shall be entitled to levy Additional Charges in the manner described in Clause 7 if Maintenance  Services are provided at DCL request in circumstances where it is agreed that DCL request was unnecessary.     7. Additional Charges     7.1 Rates for Additional Charges shall be increased annually in line with the last published Retail Price Index on the first day of each DCL  Financial Year and stated in Schedule One effective for the following year of this Agreement.     7.2 Additional Charges shall be levied by SEV on completion of Excepted Services within fifteen working days otherwise DCL shall have  no obligation to pay the Additional Charges. The Additional Charges shall be payable by DCL within fifteen working days of  receipt of the invoice.     7.3 Additional Charges for labour and travelling time shall be levied at the rates stated in Schedule One.     7.4 Transportation of Vehicles on SEV transport shall be levied on a time plus mileage basis at the rates stated in Schedule One.     7.5 The time charged from the initial location of SEV transport to the point of collection and back shall be limited to a maximum of one hour  each way     10





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     7.6 Any CDV, SGV, MGV or LGV, reported monthly by SEV as described in Clause 2.7.3 and operating in excess of 25,000 miles per annum  shall be subject to an Additional Charge, calculated on a pro-rata basis, levied annually on the first day of each DCL Financial  Year     7.7 Subject always to Clause 2.1. SEV reserves the right to supply new, reconditioned or used replacement parts and materials in the  performance of its duties hereunder.     7.8 New, used and reconditioned spare parts and materials used in the completion of Excepted Services shall be levied by SEV to DCL at a  price agreed by DCL for each case.     7.9 Where SEV employs sub-contractors for Excepted Services, the Additional Charges shall be levied at the rates stated in Schedule One.    7.10 SEV shall have the consent of DCL to undertake Excepted Services without prior notification for which the Additional Charge does  not exceed the amount stated in Schedule One and provided it is agreed that the Excepted Services were required; DCL accepts  full liability for the payment thereof. Payment for Excepted Services in excess of the value stated in Schedule One that are  completed without prior approval of DCL shall be payable in full only at the discretion of DCL     8. Fleet Size     8.1 The prevailing Fleet Size shall be recalculated by SEV and agreed by DCL on the last day of each calendar month for the purpose of  calculating Maintenance Charges.     8.2 Spare Vehicles in the ratio of one Spare Vehicle to every ten Operational Vehicles (calculated by Vehicle category, and allowing for  reasonable substitutes, across the whole fleet) shall be held at each Site and are included in this Agreement in respect of Fleet  Size calculations.     8.3 The Fleet Size shall be allowed to fluctuate within a range defined as the Opening Fleet Size less ten percent to the Opening Fleet Size  plus ten percent without penalty or notice. The Fleet Size, in respect of Maintenance Charges calculations shall only be allowed  to exceed this range following either a revision of Schedule One agreed by SEV and DCL or on the first day of a DCL Financial  Year.     8.4 DCL shall first offer all Surplus Vehicles that DCL wishes to sell for sale to SEV. Any Surplus Vehicle purchased by SEV shall be  removed from DCL site within ten working days. Unless purchased by SEV, disposal of Surplus Vehicles shall be the  responsibility of DCL.     8.5 Notwithstanding any other term of this Agreement, DCL shall within a period of five months of the Commencement Date reduce the  number of MGV and LGV Vehicles in respect of which SEV is to provide Maintenance Services to a maximum of 52 Vehicles;     11

   ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     so as to enable SEV to undertake appropriate redundancy consultation and selection processes with those Transferring  Employees involved in the maintenance of such MGV and LGV Vehicles and where appropriate to effect the dismissal of  those Transferring Employees on the ground of redundancy.     9. DCL's Obligations     During the term of this Agreement, DCL shall:     9.1 pay SEV Additional Charges as required to ensure that any vehicle to be added to this Agreement after the Commencement  Date is in a roadworthy condition, including bodywork as described in Clause 4.12. and capable of passing a VOSA  inspection prior to inclusion in this Agreement;     9.2 use its reasonable endeavours to ensure the Vehicles are operated in accordance with the Vehicle manufacturers' instructions  and for the purposes for which they were designed;     9.3 use its reasonable endeavours to ensure that daily Vehicle checks, in accordance with the Code of Practice are completed (and  recorded daily in writing) and that tyre pressures, engine oil, coolant and windscreen washer fluid are maintained at  the correct levels and topped up if necessary;     9.4 replace, at both DCL and SEV discretion and where practical, any blown bulbs or fuses using spares provided by SEV on a  free of charge basis;     9.5 ensure that any faults or defects are reported without unnecessary delay to SEV using the procedure specified in the Contract  Procedure Manual;     9.6 to provide and make use of a Spare Vehicle in the event of a Vehicle being unavailable for operation due to Maintenance  Services;     9.7 if requested, in so far as is practical to do so, provide assistance to SEV to tow a Vehicle back to the Site or Place of Repair;





   9.8 ensure that no alterations, modifications, repairs or maintenance to the Vehicles that directly affects SEV obligations under  this Agreement, are carried out other than by SEV without prior consultation with SEV and such consent not to be  unreasonably withheld;     9.9 provide a valid road fund licencse for each Vehicle;     9.10 provide a safe working area at each Site in which SEV personnel may work on the Vehicles;     9.11 provide a safe working area where batteries can be cleaned without contamination of the water course;     9.12 provide a reasonable amount of electricity and water to SEV whilst working on the Vehicles on Site at no charge to SEV;     12





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     9.13 promptly notify SEV in writing in the event that a Vehicle is to be included within or removed from the scope of this  Agreement     10. Access to Premises     10.1 DCL shall allow SEV and authorised sub-contractors reasonable access to any premises controlled by DCL in order to  provide the Maintenance Services (the Premises) and to the extent necessary for SEV to provide the Maintenance  Services. The access shall be granted during the normal working hours for the relevant Premises. If access is required  outside the normal working hours for the relevant Premises, SEV shall arrange an appointment in advance with DCL.     10.2 SEV shall make sure that all of its employees, agents and sub contractors attending the Premises:     10.2.1 carry and keep visible suitable means of identification;     10.2.2 comply with reasonable regulations applying to conduct at the Premises.     10.2.3 comply with lawful directions given by authorised personnel of DCL relating to conduct on the Premises.     10.3 SEV shall be liable for any damage caused to the Premises by its employees, agents, sub-contractors and invitees.     10.4 Unless otherwise agreed, SEV shall be responsible for property which it brings onto the Premises and shall remove it from  the Premises when requested by DCL.     10.5 The use of the Premises is entirely at DCL's discretion and DCL may ask SEV to vacate the Premises or stop providing  Maintenance Service from Premises from time to time by giving SEV at least 30 days' written notice.     10.6 SEV shall not be liable for the failure to provide Maintenance Services due to being unable to gain access to Vehicles  through DCL exercising their rights under this Clause 10.     11. Transferring Employees     1l.1 DCL and SEV acknowledge and agree that, pursuant to the Regulations, the contracts of employment between DCL and the  Transferring Employees (except in so far as such contracts relate to any occupational pension scheme as defined in  Regulation 7 of the Regulations) will have effect after the Commencement Date as if originally made between SEV and the  Transferring Employees. SEV and/or any Permitted Sub-Contractor will make such pension provisions in respect of the  Transferring Employees as complies with its obligations under sections 257 and 258 Pensions Act 2004 and the regulations  under these sections, namely the Transfer of Employment (Pension Protection) Regulations 2005.     13





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.        11.2 DCL and SEV agree that the following provisions of this Clause 11 will apply irrespective of whether or not the Regulations  apply as a matter of law     11.3 All Employment Costs in relation to the Transferring Employees in respect of:     11.3.1 up to and including the Commencement Date (whether or not due for payment at that date) will be borne by DCL     11.3.2 after the Commencement Date up to and including the Termination Date will be borne by SEV;     and will if necessary be apportioned on a time basis between SEV and DCL     11.4 DCL will indemnify and will keep SEV indemnified in full against all Liabilities arising directly or indirectly in connection with.     11.4.1 the employment or termination of employment by DCL of any of the Transferring Employees (whether or not  terminated by notice and, if so terminated, whenever that notice expires) up to and including the Commencement  Date;     11.4.2 any act, omission or default of DCL up to and including the Commencement Date in respect of the employment by  DCL of the Transferring Employees;     11.4.3 DCL's failure to inform or consult as required under Regulation 10 and 10A of the Regulations except to the extent  that any such action or claim (or any part of such action or claim) arises from any failure by SEV to give DCL the  information required from SEV to enable DCL to comply with its obligations under Regulation 10(3) of the  Regulations;     11.4.4 any claim by a Transferring Employee that such person is entitled for any reason to take benefits not relating to old  age, invalidity or survivors pursuant to the terms of any pension scheme in which SEV is not then participating, or  pursuant to the Transferring Employee's terms and conditions of employment prior to the Commencement Date;     11.4.5 any claim by any trade union, staff association or staff body recognised by DCL in respect of all or any of the  Transferring Employees arising out of DCL's failure to comply with its legal obligations to such trade unions or  staff associations or bodies; and     11.4.6 any claim by any former, existing or future employee of DCL (other than the Transferring Employees) against SEV  concerning or relating to any matter whatever.     11.5 Subject to Clause 11.6. SEV will indemnify and keep DCL indemnified in full against all Liabilities arising directly or indirectly  in connection with:     11.5.1 any Employment Costs arising in relation to the Contracted Period in relation to the Employees;     14





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     11.5.2 the employment or termination of employment by SEV of any of the Employees (whether or not terminated by notice  and, if so terminated, whenever that notice expires); and     11.5.3 any act, omission or default of SEV in respect of the employment by SEV of the Employees.     11.6 SEV has indicated to DCL that following the Commencement Date, it will undertake a review of the provision of the  Maintenance Services and the services that SEV already provides to DCL, which are similar to the Maintenance Services,  and it is possible that headcount reductions may be necessary within its workforce as a result of that review. To the extent  that such headcount reductions are effected through compulsory redundancies which affect the Transferring Employees,  DCL understands that SEV will seek to establish that such redundancies are for an economic technical or organisational  reason entailing a change in the workforce. Accordingly, DCL agrees that (subject to Clause 11.7) in the event that SEV  terminates the employment of any of the Transferring Employees on the ground of redundancy and:-     11.6.1 the date on which the applicable redundancy notice is issued falls on or within a period of 6 months commencing on  and including the Commencement Date; and     11.6.2 a copy of such redundancy notice is served (in accordance with clause 32.1) upon DCL within the same period;     then DCL will reimburse the Redundancy Costs validly incurred by SEV in association with such termination(s) to SEV  within 14 days of receipt of an invoice from SEV detailing the name of the Transferring Employee, the effective date of  termination of their employment and the date and amount of any payment of the Redundancy Costs (including a  breakdown of PAYE deducted).     11.7 DCL will reimburse Redundancy Costs to SEV in accordance with Clause 11.6 up to a maximum total sum as set out in  Schedule Two (the Redundancy Cap). However, in the event that the basis of calculation of the Redundancy Costs  applicable to all or any of the Transferring Employees as stated in Schedule Two (the Anticipated Redundancy Costs) is  challenged (whether by one or more of the Transferring Employees or by any trade union, staff association or staff body  recognised by DCL or SEV in respect of all or any of the Transferring Employees) with the result that the Anticipated  Redundancy Costs are agreed by the parties or adjudged by a competent court or tribunal to be less than the actual  Redundancy Costs (the Actual Redundancy Costs), DCL agrees to forthwith pay to SEV in addition to the Anticipated  Redundancy Costs such sum as represents the difference between the Anticipated Redundancy Costs and the Actual  Redundancy Costs; provided that DCL's liability in respect of such difference shall not exceed the sum of [***]     [***]     11.8 SEV will for the purposes of its accounts and tax return consider whether any payment received from DCL under the terms of  Clause 11.6 can be treated as a non taxable income receipt with a claim being made for the Redundancy Costs as deductible  for corporation tax purposes. Provided SEV considers that there are reasonable grounds     15





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     for submitting its tax return on this basis then upon acceptance by the HM Revenue and Customs of this treatment or  upon expiry of the relevant time limit for the HM Revenue and Customs to raise enquiries in relation to the tax return  covering the provision of the Maintenance Services SEV will pay to DCL an amount equal to the reduction in the SEV's  corporation tax liability attributable to the deductibility of the Redundancy Costs within 14 days of such acceptance or  expiry.     11.9 SEV shall only terminate the employment of any Transferring Employees under Clause 11.6 in the event that headcount  reductions are necessary (as specified under Clause 11.6) and SEV has used all reasonable endeavours to try and find  alternative employment for such employees within SEV.     11.10 SEV hereby undertakes to DCL that it will comply with all relevant legislation and case law and will use best practice in any  redundancy process it undertakes in relation to the Transferring Employees where it intends to call upon or does call upon  DCL to reimburse any Redundancy Costs so as to ensure that such dismissals are fair and reasonable in all the  circumstances.     11.11 DCL acknowledges that SEV requested DCL to provide it with various employment details in relation to the Transferring  Employees as set out in Schedule Three (Transferring Employees Information) before: the Commencement Date DCL  used all reasonable endeavours to ensure that it provided SEV with all the Transferring Employees Information and  warrants that to the best of its knowledge and belief (having undertaken all reasonable investigations and conducted all  relevant enquiries) the Transferring Employees Information was true complete and accurate when given and remains true,  complete and accurate until the Commencement Date.     11.12 DCL acknowledges that SEV is relying on the warranty set out in Clause 11.11.     11.13 The rights and remedies of SEV in respect of any breach of the warranty set out in Clause 11.11 shall not be affected by  completion of the transfer of the Transferring Employees, by any knowledge of SEV or its advisers, by the rescission or  non-rescission of this Agreement, by any investigation made by or on behalf of SEV into the affairs of DCL or by SEV  failing to exercise or delaying the exercise of any of its rights or remedies.     11.14 SEV hereby warrants to DCL that as at the date of this Agreement no claim is contemplated against DCL in relation to clause  11.11     11.15 DCL shall subject to clause 11.16 indemnify and keep SEV indemnified against any Liabilities incurred by SEV during a period  of 12 months from the Commencement Date or any potential Liabilities of which SEV becomes aware during the period of  12 months from the Commencement Date as a result of a breach by DCL of the warranty set out in clause 11.11 provided  that:     11.15.1 SEV promptly notifies DCL of any allegation of loss or damage within a period of 12 months from the  Commencement Date.     16





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     11.15.2 SEV makes no admission or prejudicial statement without DCL's consent (such consent not to be unreasonably  withheld or delayed);     11.15.3 the parties conduct and settle all negotiations and proceedings in a manner which is mutually acceptable in the  circumstances, both parties acting reasonably in the circumstances; and     11.15.4 SEV complies with its common law duty to mitigate its losses.     11.16 DCL shall not be liable to SEV under the provisions of this clause 11 for indirect loss, consequential loss or loss of profits.     11.17 DCL and SEV acknowledge that DCL may, in the normal course of its business, acquire various undertakings during the term  of this Agreement (New Undertakings) which may consist of (amongst other things) vehicles and employees involved in  the maintenance and repair of such vehicles (New Employees). Accordingly, and in the event that;     (i) DCL completes the acquisition of a New Undertaking and becomes the employer of the New Employees;     (ii) DCL notifies SEV of its desire for SEV to provide such Maintenance Services in respect of such New Undertaking;     (iii) SEV is prepared to provide such Maintenance Services in accordance with the terms of this Agreement; and     (iv) the parties agree that the Now Employees are to be employed by SEV (whether in accordance with the Regulations or  otherwise as the case may be) in order to enable SEV to provide such Maintenance Services.     the parties agree to use all reasonable endeavors to effect and document the employment by SEV of the New Employees  (again whether in accordance with the Regulations or otherwise as the case may be) and the inclusion of the applicable  vehicles within the scope of this Agreement within such timescale as the parties may agree (both parties acting reasonably  in the circumstances). For the avoidance of doubt, the parties agree that;     11.17.1 where the New Employees are to transfer to SEV in accordance with the Regulations then the terms of such transfer  shall be in substantially the same form as that wording set out in this Agreement in respect of the Transferring  Employees; and     11.17.2 whether the New Employees are to be employed by SEV pursuant to the Regulations or otherwise the agreement  between SEV and DCL providing for their employment by SEV shell include provisions which are the same or  substantially the same as clauses 18, 19 and 20 of this Agreement.     17





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     12. Changes in Legislation     In the event of changes in legislation taking place during the Contracted Period that directly affects DCL Vehicles, SEV shall seek  a cost effective resolution and such costs incurred by SEV in, meeting the new legal requirements shall be met in full by DCL,  either through Additional Charges or a revision of Schedule One.     13. Warranties and Liability     13.1 SEV does not warrant that the Maintenance Services will cause Vehicles to operate without breakdown or interruption.     13.2 SEV warrants and represents to DCL that:     13.2.1 all written information and materials given by SEV to DCL are, when given and so far as SEV is aware at the time,  accurate in all material respects,     13.2.2 it has full right, power and authority to provide the Maintenance Services to DCL on the terms of this Agreement;     13.2.3 it will provide the Maintenance Services with the degree of skill, diligence, prudence, foresight and care which would  reasonably be expected from a skilled, experienced and properly resourced person providing similar services to  that of SEV in this Agreement in similar or the same circumstances, and     13.2.4 it will use all reasonable endeavours to make sure that, when complying with its obligations under this Agreement, it  does not unreasonably interfere with the activities of DCL, its members, employees or agents.     13.3 All warranties and representations shall, unless otherwise expressly stated, continue in full force and effect during the term  of this Agreement and shall survive termination.     13.4 Subject always to Clause 13.7, SEV shall indemnify DCL against all claims, demands, actions, costs and expenses (including  legal costs and disbursements) which DCL incurs directly or indirectly as a result of any act, omission or default of SEV, its  employees, officers, agents, sub-contractors, suppliers and invitees in respect of:     13.4.1 any breach of the warranties in Clause 13.2;     13.4.2 damage to real or personal property;     13.4.3 injury to persons, including injury resulting in death.     13.5 If and to the extent that a Vehicle breakdown is caused by SEV failure to meet its obligations described in Clause 2.1, SEV  shall (subject always to Clause 13.7) indemnify DCL against any costs directly associated with and attributable to the  breakdown in relation to the Vehicle concerned and the provision of a Spare Vehicle.     18





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     SEV's liability under this Clause 13.5 shall be SEV's entire liability to DCL in relation to a Vehicle which breaks down.     13.6 SEV's entire liability in respect of the sums payable pursuant to the indemnities contained in Clauses 13.4 and 13.5 shall be  limited to the annualised value of the Maintenance Charges calculated on the Commencement Date or the last anniversary  thereof, unless SEV is insured in respect of such liability, in which case SEV's liability under Clauses 13.4 and 13.5 shall be  limited to the extent of such cover.     13.7 Nothing in this Agreement shall limit either party's liability to the other for death or injury resulting from its own or its  employees', agents' or sub-contractors' negligence or fraudulent misrepresentation.     14. Amendments     Any provision of this Agreement may be amended with the written consent of both parties.     15. Duration of Agreement     This Agreement shall commence on the Commencement Date and shall continue for an initial period of five years until terminated  in the manner described in Clause 16 below.     16. Termination     16.1 Following expiry of the initial period described in Clause 15 above, DCL or SEV giving not less than six months notice in  writing may terminate this Agreement. In addition, DCL may terminate this Agreement with effect from the 3rd, 4th or 5th  anniversary of the Commencement Date by giving not less than six months notice in writing to SEV. During the notice  period, all Clauses and provisions of this Agreement shall remain in effect. Any defects in Vehicles notified to SEV by DCL  during the notice period shall be remedied prior to the end of this Agreement. If Schedule One has expired during the  notice period then all Maintenance Charges and Additional Charges shall be charged at the rates shown in the last  effective Schedule One increased in line with the last published Retail Price Index.     16.2 DCL or SEV may terminate this Agreement forthwith by notice in writing to the other if:     16.2.1 the other is in breach of this Agreement and shall have failed (where the breach is capable of remedy) to remedy the  breach within 14 days of the date of a request in writing from the party not in breach requiring the breach to be  remedied;     16.2.2 has a Receiver, Manager, Administrator or Administrative Receiver appointed over all or any part of its undertaking,  assets or income resolution for its     19





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     winding up or has a petition granted by any Court for its winding up or for an Administration Order.     16.3 DCL may terminate this Agreement with immediate effect if Dairy Crest and/or SEV (on behalf of Dairy Crest) receives more  than three PG9 Notices in relation to the Vehicles or a Vehicle in the preceding 6 month period specifically caused by SEV  failing to meet its obligations under this Agreement or in the event that SEV breaches the Codes Of Practice relevant to the  Maintenance Services more than 3 times in the preceding 6 month period.     16.4 SEV shall remain liable for the repairs described in Clause 4.12 identified by DCL for a period of thirteen weeks from the end  of the Contracted Period and shall provide such repairs on a free of charge basis.     16.5 From receipt of notice of termination of this Agreement. SEV agrees not to employ any person to work wholly or mainly in  the provision of the Maintenance Services without the consent of DCL or any Replacement Supplier having first been  obtained (provided that such consent is not unreasonably withheld or delayed).     16.6 All Employment Costs in relation to the Future Transferring Employees in respect of the period:     16.6.1 up to and including the Termination Date (whether or not due for payment at that date) will be borne by SEV;     16.6.2 after the Termination Date will be borne by DCL and/or any Replacement Supplier;     and will if necessary be apportioned on a time basis between SEV and DCL and/or any Replacement Supplier.     16.7 SEV shall take all such steps as shall be necessary to agree with DCL and/or any Replacement Supplier a plan for the orderly  hand-over of the Maintenance Services to DCL and/or any Replacement Supplier, such that the Maintenance Services or  Future Maintenance Services can be carried on with the minimum of interruption and inconvenience to DCL and/or any  Replacement Supplier and to effect such handover.     16.8 SEV shall with effect from the Termination Date, and until such time as the plan for the handover of the Services pursuant to  Clause 16.7 has been fully implemented, SEV agrees to continue the provision of the Maintenance Services to DCL in  accordance with the terms and conditions of this Agreement.     16.9 SEV shall with effect from the Termination Date immediately cease any publicity linking itself to, and any holding of itself out  as being in any way linked with, DCL.     16.10 Termination in accordance with this Clause 16 shall not prejudice or affect a right or action which has accrued to either  party.     20





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     16.11 Any provisions which expressly or by implication are necessary for the enforcement or interpretation of this Agreement  shall survive termination     17. Provision of Information at the Termination Date     17.1 Within 14 days of receipt of written notice from DCL in accordance with Clause 16 or as soon as reasonably practicable  thereafter SEV shall, subject to the appropriate confidentiality undertakings being given, and further subject to any  restrictions imposed by law including, without limitation, any obligation under the Data Protection Act 1998, provide DCL  with;     17.1.1 SEV's Provisional Future Transferring Employees List:     17.1.2 all material terms and conditions of employment relating to the employment of the persons listed on SEV's  Provisional Future Transferring Employees List and written job descriptions if such written job descriptions are in  place:     17.1.3 a list of all other Employees who are engaged, or have beer engaged during the preceding six months, in the  provision of the Maintenance Services, together with details of their roles and an explanation of why SEV does  not consider that they will transfer under the Regulations (for example because SEV does not consider that the  Regulations will apply at all or to them).        such information together being Staffing Information.     17.2 Where Staffing Information has been provided in accordance with Clause 17.1 and SEV makes or becomes aware of any  material changes or discovers material new information SEV shall notify DCL, in writing, upon any such change or  discovery.     17.3 SEV shall warrant and represent to DCL that to the best of its knowledge and belief any Staffing Information (including  copies thereof) shall be complete and accurate in all respects and shall be kept complete and accurate.     17.4 Fourteen (14) days prior to any Future Transfer Date, SEV shall provide DCL with SEV's Final Future Transferring Employees  List and shall warrant and represent that as at that Future Transfer Date:     17.4.1 SEV's Final Future Transferring Employees List shall be complete and accurate;     17.4.2 all the Future Transferring Employees are employed by SEV and no other person employed by SEV shall be working  in or assigned to the provision of the Maintenance Services; and     17.4.3 it shall have disclosed to DCL, all material terms and conditions of employment relating the Future Transferring  Employees.     17.5 From receipt of notice of termination of this Agreement; or in respect of the actual or proposed termination of SEV's  provision of some (but not all) of the Maintenance     21

   ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     Services, the date upon which either party notifies the other of such partial termination, SEV shall not, and will not, other than in  the ordinary course of business (to include but not limited to any steps considered necessary by SEV to ensure compliance with  the term of this Agreement) (or if not within the ordinary course of business. without the prior written consent of DCL, such  consent not to be unreasonably withheld or delayed):     17.5.1 replace a material number of the employees on SEV's Provisional Future Transferring Employees List, deploy or assign any  other person to perform the Maintenance Services or increase the number of such employees or terminate or give notice  to terminate the employment or contracts of any persons on SEV's Provisional Future Transferring Employees List; or     17.5.2 make, propose or permit any material changes to the terms and conditions of employment of any employees listed on  SEV's Provisional Future Transferring Employees List which may reasonably be viewed as detrimental from  an employer's perspective or     17.5.3 increase the proportion of working time spent on the Maintenance Services by any of the Employees without the prior  consent of DCL (which shall not be withheld unless the granting of consent would result in an increase in the overall  number of Employees to be transferred under the Regulations to DCL and/or a Replacement Supplier); or     17.5.4 introduce any new contractual or customary practice (including for the avoidance of couot any payments on termination of  employment) applicable to any person listed on SEV's Provisional Future Transferring Employees List,     and SEV will promptly notify DCL of the period of notice given (by SEV) or received (from any person listed on SEV's  Provisional Staff Future Transferring Employees or SEV's Final Future Transferring Employees List) regardless of when such





notice takes effect.     17.6 Where SEV proposes to effect or effects (whether in the ordinary course of business or otherwise) any changes envisaged under  Clause 17.5.2, SEV shall supply a copy and/or details of any such amendments at two monthly intervals prior to three (3) months  before the Future Transfer Date and at monthly intervals thereafter uo to the Future Transfer Date to DCL.     18. Application of the Regulations     18.1 SEV and DCL anticipate that the Regulations will apply in respect of the termination of the Agreement and the subsequent transfer of  the Maintenance Services to DCL and/or to a Replacement Supplier. However, should the Regulations not apply for whatever  reason, SEV and DCL agree to nevertheless act in accordance with, and be bound by, the Regulations.     22





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     18.2 With effect from the termination of this Agreement (for whatever reason), DCL shall procure the transfer of the Management Services  either from SEV to DCL or from SEV to any Replacement Supplier     18.3 In the event that the Regulations do apply, the provisions of Clause 20 shall apply.     18.4 If the Regulations do not apply, the provisions of Clause 19 shall apply.     19. If the Regulations do not apply at the Termination Date     19.1 If the Regulations do not apply to the full or partial termination or expiry of this Agreement (for any reason) then the provisions of  this Clause 19 shall apply.     19.2 DCL shall offer (or where applicable) procure that the Replacement Supplier offers employment to any employee of SEV who is wholly  or mainly assigned to work in the provision of the Maintenance Service immediately prior to the Termination Date (Future  Agreed Transferring Employees); such offer in each case to:     19.2.1 commence on the day immediately following the date on which the Agreement terminates,     19.2.2 be on terms no less favourable than the terms on which the Future Agreed Regulation Transferring Employees are  engaged by SEV immediately before the termination of this Agreement;     19.2.3 be made in writing and copied to SEV     20. If the Regulations do apply at the Termination Date     20.1 If the Regulations do apply to the full or partial termination or expiry of this Agreement (for any reason) then DCL and SEV  acknowledge and agree that, pursuant to the Regulations, the contracts of employment between SEV and the Future  Transferring Employees (except in so far as such contracts relate to any occupational pension scheme as defined in Regulation 7  of the Regulations) will have effect after the Termination Date as if originally made between the DCL and/or any Replacement  Supplier and the Future Transferring Employees.     20.2 DCL shall provide (or, if appropriate shall procure the provision by the Replacement Supplier of) such information as may be  requested by SEV in order to comply with its duties of information and consultation under the Regulations and under sections  259-261 of the Pensions Act 2004.     20.3 SEV will from the Termination Date keep DCL and/or any Replacement Supplier indemnified in full against all Liabilities arising directly  or indirectly in connection with:     20.3.1 SEV's failure to inform or consult as required under Regulation 10 of the Regulations except to the extent that any such  action or claim (or any part of     23





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     such action or claim) arises from any failure by DCL or any Replacement Supplier to give SEV the information required  from DCL or any Replacement Supplier to enable SEV to comply with its obligations under the Regulations;     20.3.2 any claim by a Future Transferring Employee that such person is entitled for any reason to take benefits (other than  benefits relating to old age, invalidity or survivorship) pursuant to the terms of any pension scheme in which DCL or  any Replacement Supplier is not then participating, or pursuant to the Future Transferring Employee's terms and  conditions of employment prior to Termination Date.     21. Step in rights     21.1 If SEV fails to provide part or all of the Maintenance Services in accordance with this Agreement in any material respect. DCL may  notify SEV that it intends to exercise its rights under this Clause 21. DCL agrees that it shall provide SEV with notice of its  intention to exercise this Clause and shall provide SEV with a reasonable opportunity to rectify the failure to provide  Maintenance Services to the satisfaction of Dairy Crest.     21.2 DCL shall notify SEV of the reasonable costs to be incurred by DCL in the event that this Clause 21 is exercised by DCL.     21.3 If SEV does not substantially remedy the failure within a reasonable period of the notice referred to in Clause 21.1 (not to exceed 15  days), DCL may itself provide or may employ and pay a third party supplier to provide the Maintenance Services or any part of  the Maintenance Services. DCL's reasonable costs in doing this may, at DCL's option, be deducted from any sums due to the  SEV or shall be recoverable from SEV by DCL as a debt.     21.4 To the extent to which the Maintenance Services are being provided by DCL or a third party supplier under Clause 21.3, SEV will be  relieved of its obligations to provide the Maintenance Services. SEV will not be liable for the acts or omissions of DCL or the  third party supplier in providing the Maintenance Services.     21.5 DCL shall permit SEV to resume delivery of the Maintenance Services once it is satisfied on reasonable grounds that SEV will be able  to resume delivery of the Maintenance Services in accordance with this Agreement.     21.6 SEV shall co-operate in all reasonable respects with DCL and any third party supplier engaged by DCL under this Clause.     22. Insurance     22.1 SEV shall maintain in force (at its own expense) for the term of this agreement and for six years after its termination:     24





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     22.1.1 employer's liability insurance for the minimum amount of £5 million to cover injury (including death) relating to the  provision of the Maintenance Services to DCL; and     22.1.2 comprehensive general liability insurance, including professional indemnity, public liability and product liability insurance,  for the minimum amount of £5 million to cover injury (including death), loss and damage relating to the provision of the  Maintenance Services to DCL.     22.2 The insurance policies referred to in Clause 22.1 shall be with a reputable insurer and shall not include unreasonable excesses which  are unusual for this type of insurance.     22.3 Within 14 calendar days of a request by DCL, SEV shall provide evidence of the insurances which it is obliged to maintain under  Clause 22.1.     23. Legal status     SEV is an independent contractor and nothing in this Agreement shall be deemed to constitute a partnership or any employment  relationship between the parties nor shall anything in this Agreement be deemed to constitute one party the agent of the other for any  purpose.     24. Force Majeure     24.1 SEV shall not be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including but  not limited to fires, insurrection or riots, embargoes, inability to obtain supplies and raw materials due to strikes or market  shortages (acknowledged by DCL) affecting the relevant third party suppliers, or regulations of any civil or military authority (an  Event of Force Majeure).     24.2 If a default due to an Event of Force Majeure shall continue for more than eight wooks then the party not in default shall be entitled  to terminate this Agreement on giving written notice to the other party. Neither party shall have any liability to the other in  respect of the termination of this Agreement as a result of an Event of Force Majeure. However, any termination of this  Agreement shall not affect any liability of DCL to discharge any Maintenance Charges and/or Additional Charges outstanding  at that time.     25. Invalidity and Severability     Each of the provisions contained in this Agreement shall be construed as independent of every other such provision, so that if any  provision of this Agreement shall be found by any Court or administrative body of competent jurisdiction to be invalid or unenforceable  the invalidity or unenforceability of such provision shall not affect the other provisions of this Agreement and all provisions not affected  by such invalidity or unenforceability shall remain in full force and effect     25





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     The parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid or enforceable provision that achieves  to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision     26. Assignment and sub-contractors     26.1 Neither party shall be entitled to assign the benefit of this Agreement without the prior written consent of the other party nor shall  such consent be unreasonably withheld.     26.2 SEV, with the consent of DCL and without incurring unnecessary expense, may sub-contract the performance of its obligations under  this Agreement or any part thereof and such consent will not be unreasonably withheld.     26.3 SEV shall not engage agents or sub-contractors to provide the Maintenance Services (or any material part of the Maintenance  Services) without DCL's prior consent and DCL's consent shall not be unreasonably withheld or delayed.     26.4 SEV shall remain responsible for obligations that are performed by agents or sub-contractors (and for the acts or omissions of agents  and sub-contractors) as if they were acts or omissions of SEV.     27. Value Added Tax     Save insofar as otherwise expressly provided, all amounts stated in this Agreement are expressed exclusive of value added tax and any  value added tax arising in respect of any supply made hereunder shall on the issue of a valid tax invoice in respect of the same be paid to  the party making such supply by the party to whom it is made in addition to any other consideration payable therefor.     28. Law and jurisdiction     This Agreement shall be governed by and construed in all respects in accordance with the law of England and Wales and both parties  submit to the exclusive jurisdiction of the English Courts.     29. Headings     Headings to Clauses in this Agreement are for the purposes of information and identification only and shall not be construed as forming  part of this Agreement.     30. Entire agreement     30.1 This Agreement, and the documents referred to in it, constitute the entire agreement and understanding of the parties and  extinguishes any prior drafts, and all previous     26





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     contracts, arrangements, representations, warranties of any nature whether or not in writing between the parties relating to its  subject matter     30.2 Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely  on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or  innocently made) of any person (whether party to this Agreement or not) other than as expressly set out in this Agreement     31. Third party rights     A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of  this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.     32. General     32.1 Notices between the parties relating to this Agreement shall be in writing and shall either be delivered personally or sent by first class  post or fax to the registered office for the time being of the recipient. Communications if delivered by hand shall be treated as  received when delivered, if sent by first class post 48 hours after posting, if sent by air-mail post 72 hours after posting and if  sent by fax when sent. Any notices that would be treated as received out of business hours (9.00 a.m. to 5.00 p.m Monday to  Friday, excluding bank holidays) shall be deemed given on the next business day (Monday to Friday, excluding bank holidays).     32.2 Except as expressly provided under this Agreement, the rights and remedies contained in this Agreement are cumulative and are not  exclusive of any other rights or remedies provided by law or otherwise.     32.3 A failure or delay by either party to exercise any right or remedy under this Agreement shall not be construed or operate as a waiver  of that right or remedy nor shall any single or partial exercise of any right or remedy preclude the further exercise of that right or  remedy.     32.4 A waiver by either party of any breach of or default under this Agreement shall not be considered a waiver of a preceding or  subsequent breach or default.     32.5 A purported waiver or release under this Agreement is not effective unless it is a specific authorised written waiver or release.     27





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     SCHEDULE ONE     Effective 16 October 2005 to 31  March 2006     Opening Fleet Size: 2367     Maintenance Rate and Service Intervals:                                                         Vehicle   Type         Make/Model         Service Interval         Maintenance Rate                                                 Smith's Cabac/Consort                        EGV         W&E Rangemaster & 4/40                                 Electricars E/F model         13 weeks         [***] per week                                                Ford Fiesta Van                        COV         Ford Escort Van          13 weeks         [***] per week             Vauxhall Astra Van                                                                    Ford Transit <3.5t GVW                        SGV         LDV Convoy <3.5t GVW          13 weeks         [***] per week             Mercedes <3.5t GVW

s t





   28

MGV

Leyland DAF with Fridge   3501-/7500kgs         6 weeks A/B/C         [***] per week                                       MGV

Leyland DAF with T/L & Fridge   3501-7500kgs         6 weeks A/B/C         [***] per week                                       LGV

Leyland DAF with Fridge   7501-14740kgs         6 weeks A/B/C         [***] per week                                       LGV

Leyland DAF with T/L & Fridge   7501-14740kgs         6 weeks A/B/C         [***] per week                                       LGV

Leyland DAF with Fridge   14740-18000kgs         6 weeks A/B/C         [***] per week                                       LGV

Leyland DAF with T/L & Fridge   14740-18000kgs         6 weeks A/B/C         [***] per week





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     Age related Discounts/Surcharges for SGV, MGV & LGV:

   Additional Charges:







                    Age of Vehicle         Discount/Surcharge from Weekly Charge         Year 1         [***] discount



Year 2         [***] discount



Year 3         [***] discount



Year 4         NIL



Year 5         NIL



Year 6         NIL



Year 7         NIL



Year 8 onwards         [***] surcharge



            Provider          Time Period         Labour Rate         Transport Rate    Company         7am to 5pm Weekdays         [***] per hour         [***] per mile    Company         5pm to 7am Weekdays         [***] per hour         [***] per mile    Company         Saturday         [***] per hour         [***] per mile    Company         Sunday & Bank Holidays         [***] per hour         [***] per mile

      Provider         Invoice Value Plus         Min Mark-up         Max Mark-up    Sub-contractor         7.5%         [***]         [***]

    Authority Level         [***]         Without prior authorisation





29

   ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     SCHEDULE TWO     Transferring Employees





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     Redundancy Cap     The parties agree that the Redundancy Cap referred to in Clause 11.7 is [***]  [***]





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     APPENDIX     Code of Practice on Acceptable Standards of Maintenance     The Department of Transport accepts that many operators, particularly those new to the profession, are unaware of what is needed to meet the  required standards, and have issued, in consultation with representatives of the industry a Code of Practice to provide guidance for operators on  what is needed for good maintenance. The Code is entitled Guide to Maintaining Roadworthiness, and is published by HMSO.     The Preface to the Code repeats the caveat in the Department's Guide to Operator Licensing that the ultimate test of an operator's maintenance  system is the condition of his vehicles on the road.     It assures operators that if their maintenance systems accord with the Code they will be acceptable to Traffic Commissioners, providing the  resulting condition of their vehicles is satisfactory. However, it adds a rider that Traffic Commissioners remain free to require more stringent  arrangements than those which the operator proposes.     Advice contained in the code     The Code offers much sensible advice on what is acceptable. It thus fills the gap which previously existed between the legal requirement for safe  operation and the means by which this can be fulfilled. The Vehicle and Operator Services Agency (VOSA) is now much more specific than  hitherto about these means.     VOSA examiners have always been prepared to visit operators and advise them on their maintenance. The VOSA is now an Executive Agency with  a commercial remit, self funded by the fees it charges for inspections it provides for a commercial fee, courses for goods vehicle operators' staffs  responsible for inspecting vehicles.     The Code places considerable emphasis on regular inspections of vehicles, including a daily walkround check, the keeping of records of  inspections (Croners' Road Transport Operation: Records and Procedures gives valuable information on the types of records to be kept), and the  importance of driver defect reports (including the making of NIL Defects reports where appropriate).     The practice of keeping defect reports and records of inspection for 15 months is confirmed in the Code.     A clear indication is given that safety inspections should follow a pattern based on time, and that the interval of time between inspections should  be determined by operating conditions.     Operators are advised to own or have access to means of measuring braking efficiency. The VOSA is currently offering, on an experimental basis,  this facility to operators at some goods vehicle testing stations.     32





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     Maintenance Staff     Vehicle maintenance must be carried out by qualified maintenance staff so that the driver is well supported in his operational duties thus enabling  him to give maximum productivity during his working hours.     Fleet maintenance should be planned, with regular vehicle testing and inspection, to minimise breakdowns on the road and to assist maximum  vehicle utilisation.     The Driver's Responsibilities     The driver is the operator's representative and as such is responsible — with his employer — for any infringement of the law and he should  therefore have a working knowledge of the appropriate regulations.     Whatever the standards laid down by vehicle operators for maintenance and servicing, ultimately it is the driver who is responsible for reporting  on performances He, more than anyone else, handles the vehicle under load, which is the only time when a true test of vehicle performance can be  obtained. The driver, therefore, must ensure that he reports in good time, to the maintenance staff, any defects likely to infringe the law or affect  the safety requirements. For such purposes a Vehicle Defects Report Sheet should be supplied by the operator to his driver so that any  abnormalities can be recorded and dealt with as soon as possible.     The items for checking and reporting on the Defects Report Sheet are:     (a) fuel, oil and water     (b) brakes     (c) tyre condition and inflation pressures, spare wheel and jack     (d) wheel security, making sure that:     (i) all nuts and studs are tight     (ii) no nuts or studs are missing     (iii) no cracks are evident around wheel holes and where the centre joins the rim     (iv) where a wheel has been replaced recently the nuts are tight (these should be checked again after 30 minutes of the work being carried out)     Note: A vehicle should not be moved if any problems are found which should be reported immediately.     (e) driving mirrors, windscreen wipers and washers     (f) lights and reflectors     (g) stop-lights and direction indicators      (h) steering     33





  ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     (i) the tachograph instrument     (j) care and attention of batteries     (k) all controls within the cab (lighting controls and connections)     (l) water-cooling system and the use of anti-freeze     (m) fuel supply, checking and clearing air-locks (diesel fuel system)     (n) spray suppression equipment-around wheels     (o) sideguards and rear under-run guards     (p) cold starting procedure     (q) brake and light coupling systems (trailer and articulated vehicles)     (r) special equipment and controls used with tankers, tail-lifts, autocranes, etc.     (s) refrigeration systems and controls     (t) speed limiters.     Note. Headlamps, front and rear fog lamps, reversing lamps (if fitted) must be set so they do not cause dazzle to other road users Also, all  obligatory lamps and reflectors (including rear reflective markings) must be kept clean and in good working order.     34





     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.

   35

                  SIGNED by MARK ARLEN    )         duly authorised for and on behalf of    )    /s/ Mark Arlen    DAIRY CREST LIMITED    )



                              SIGNED by STEPHEN FISHER    )



duly authorised for and on behalf of    )    /s/ S. Fisher    SEV GROUP LIMITED    )







     ***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted  portions have been filed separately with the Commission.     ADDENDUM TO     FLEET MAINTENANCE AGREEMENT

   Insert Additional Clause:     3.7 Notwithstanding Clause 6, SEV agrees that DCL may withhold the final monthly payment due to SEV in respect of a vehicle on hire from Lex  Vehicle Leasing t/a Business Partner (the Hirer) at the end of its contracted hire period to cover the cost of repairs or replacement that  should have been completed under the terms of this Fleet Maintenance Agreement so that it can be returned to the Hirer in good condition.  For the purposes of this Fleet Maintenance Agreement good condition means free from exterior or interior damage including dents,  scratches, damaged paintwork caused by any reason other than normal wear and tear.

            DATED         13 OCTOBER 2005                   DCL

DAIRY CREST LIMITED (Company no 2085882) whose registered office is at Claygate House, Littleworth Road, Esher,  Surrey KT10 9PN                   SEV

SEV GROUP LIMITED (company no 4463640) whose registered office is at Unit 95/2, Tanfield Lea Industrial Estate  North, Stanley, Co Durham, DH9 9NX

                          SIGNED by [NAME] RJR BETHAM    )         duly authorised for and on behalf of    )    /s/ R.J.R. Betham    DAIRY CREST LIMITED    )



               DATE 19-1-06



                              SIGNED by [NAME] S FISHER    )



duly authorised for and on behalf of    )    /s/ S. Fisher    SEV GROUP LIMITED    )











                   DATE 19-1-06 
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?

Output: 22.1.1 employer's liability insurance for the minimum amount of £5 million to cover injury (including death) relating to the  provision of the Maintenance Services to DCL; and     22.1.2 comprehensive general liability insurance, including professional indemnity, public liability and product liability insurance,  for the minimum amount of £5 million to cover injury (including death), loss and damage relating to the provision of the  Maintenance Services to DCL.


Input: Consider Input: RESELLER AGREEMENT    This agreement (Agreement) dated as of January 11, 2011 (Effective Date) is between Diversinet Corp. (Diversinet), an Ontario corporation  with its principal place of business located at 2235 Sheppard Avenue East, Suite 1700, Toronto, Ontario, Canada M2J 5B5, and 2205925 Ontario  Limited, with its principal place of business located at 111 Main Street West, Suite 304, North Bay, Ontario P1B 2T6 (the Reseller).     Diversinet and the Reseller are hereinafter referred to individually as a Party and, collectively, as the Parties. The Schedules attached hereto  shall form an integral part of this Agreement, and all references to this Agreement shall be deemed to include the Schedules.     WHEREAS Diversinet is a provider of mobile device security and authentication solutions for the mobile data ecosystem, and is the owner of  certain software products, user documentation and services and the related trade-marks;    AND WHEREAS Reseller has represented that it is qualified and desires to act as a reseller of certain of Diversinet's products within a certain  defined territory, and agrees to use its best efforts to market and sell such products in such territory;    NOW THEREFORE, for and in consideration of the mutual promises and commitments contained hereafter and other considerations, the receipt  and sufficiency of which is hereby acknowledged, the Parties have entered into this Agreement for the purpose of permitting Reseller to market  and sell certain of Diversinet's products pursuant to the terms and conditions set out as follows.    1. Appointment  Subject to payment of the Annual Minimum Commitment (AMC  - defined herein), Diversinet hereby grants to Reseller an exclusive, non- transferable and non-assignable right to market, sell, and sub-license those Diversinet products listed in Schedule 2 (the Products) within the  territory listed in Schedule 3 (the Territory) to Canadian headquartered companies, and governmental and broader public sector entities located  in Canada. Reseller's customers (the Customers) are defined as those organizations/enterprises that will market and manage the end-users of the  Products (the End-Users). Reseller acknowledges and agrees that it does not have the right to assign sub-resellers under this Agreement  outside of the Territory, except with the prior written consent of Diversinet.     Furthermore, if Reseller terminates the AMC in the manner contemplated in Schedule 3, the exclusive license above shall revert to being a non- exclusive license.    In either case, Reseller will have the non-exclusive right to contract in the rest of the world, excluding the United States. If Reseller identifies End- Users in the United States, with the prior written consent of Diversinet, Reseller may sell the Products to the End-Users. United Stated revenues  will not be counted against the AMC however Reseller will be entitled to the discount rates as indicated in Schedule 3..    In addition, Diversinet hereby grants to Reseller the right to use those Diversinet trademarks and copyrighted materials with respect to the  Products solely for the purpose of marketing and distribution of the Products as authorized hereunder. Reseller acknowledges that the use of such  trademarks and copyrighted materials does not create in its favour any right, whether of ownership or otherwise, to such trade-marks and  copyrighted materials, and that all rights arising from the use thereof by Reseller shall inure to the benefit of Diversinet.     Reseller agrees that the rights granted to Reseller in this Section 1 are solely for the purpose of supplying the Products to Reseller, its Customers  and End-Users located in the Territory. Any use outside of the rights granted herein shall require an additional license from Diversinet.     2. Ownership and Representations  (a) Except as expressly granted herein, Diversinet does not grant any further rights, license or immunity to Reseller, and hereby retains and  does not waive any rights it may have with respect to patents, trade-marks, copyrights, moral rights or other intellectual property or  proprietary rights enforceable under the laws of any country. Reseller shall not authorize anyone to reverse engineer, decompile, alter,  transfer, modify or create a derivative work from any of the Products, nor may Reseller itself engage in so doing.     (b) Reseller shall not make any representations or warranties regarding the use or operation of the Products other than those included in any  promotional materials provided by Diversinet and any Product documentation provided by Diversinet.     3. Term and Renewal  The term of this Agreement shall begin on the Effective Date and continue in effect for a period of five (5) years (the Initial Term), unless sooner  terminated in accordance with the provisions set out herein. Upon expiration of the Initial Term, this Agreement shall automatically renew for  consecutive one (1) year periods, unless terminated by Reseller within sixty (60) days prior to the expiration of the Initial Term or any renewal term,  as the case may be (the Initial Term and each renewal term, collectively, the Term). Any annual renewal would be subject to the payment, if  applicable, of the AMC as agreed to by the parties, however such AMC will not be less than the previous year AMC times 115%, payable in  applicable quarterly instalments.    4. Termination  (a) Either Party may terminate this Agreement:  (i) Upon thirty (30) days' written notice to Reseller if Reseller fails to make any AMC payment when due under this Agreement, or when  an audit, as set out in Section 13, by Diversinet reveals any under-payment for any payment due, and it is not paid within the thirty (30)  day written notice period;   (ii) providing thirty (60) days' written notice to the other Party if the other Party breaches any material term or condition of this Agreement,  and fails to cure such breach within the 60 day period;  (iii) upon providing thirty (30) days' written notice to Reseller if Reseller terminates the provisions of the Annual Minimum Commitment  and fails to meet the sales targets as set out in Schedule 3.    (b) This Agreement shall terminate automatically without notice and without further action by Diversinet in the event that:





(i) Reseller ceases carrying on its business, or if a petition shall be filed, an order shall be made or an effective resolution is passed for the  winding-up, dissolution or liquidation of Reseller.    (c) Termination under Subsection 4(a) shall trigger a phase-out period during which Reseller may continue to provide products and  services to Customers. Such phase-out period shall be the longer of (i) the remaining term of the agreement between the Reseller and its  Customers, and (ii) 18 months.    (d) Upon the termination of this Agreement for any reason: (1) all rights granted to Reseller hereunder shall automatically come to an  end and revert to Diversinet, including without limitation any right to use, operate and provide customer service or support for the Products;  (2) Reseller shall immediately pay to Diversinet all amounts due and outstanding hereunder as of the date of such termination or expiration;  and (3) within five (5) days of termination of this Agreement, for whatever reason, Reseller, must: (a) destroy all copies of the Products and  any associated Products documentation in its possession or under its direct control; and (b) deliver to Diversinet a written certificate  warranting that it has complied with the foregoing obligations.    1. Customer Orders  (a) Customer Agreements. The Parties acknowledge and agree that Reseller's Customers will acquire the Products and related services under  contract with Reseller, that Diversinet shall not have any contractual interest in Reseller's Customer relationships. Prior to Reseller  committing to provide any Products to a Customer, Reseller shall cause Customer to enter into purchase agreement(s) with Reseller with  respect to each of the Products purchased by Customer (each, a Customer Agreement). Reseller agrees that it shall include terms and  conditions in its Customer Agreements that are sufficient to protect Diversinet's interests as reflected in this Agreement, including, but not  limited to, those terms set out in Schedule 4 hereto. Such Customer Agreements shall be subject to Diversinet's approval, which approval  shall not be unreasonably withheld. Reseller shall use commercially reasonable efforts to ensure that all Customers abide by the terms of the  applicable Customer Agreement(s). Furthermore, Reseller shall enforce its Customer Agreements against Customer when requested to do so  by Diversinet. For greater clarity, Diversinet expects that the Reseller will include all of the points covered in Section 4 in its end user  agreement. When the Reseller receives a customer order they will fax both the end user agreement and the details of the order to Diversinet  and if the end user agreement contains all of the points outlined in Section 4 then Diversinet will approve the order and ship the required  products to the Reseller.    (b) Ordering Process. Reseller shall submit all orders to Diversinet for the applicable Products. Reseller's submission of orders to Diversinet  shall comply at all times with Diversinet's reasonable procedures and requirements and are subject to acceptance by Diversinet acting  reasonably. Reseller shall be solely responsible for all sales activity culminating in and including the procurement of fully-executed Customer  Agreements and purchase orders specifying the Products and Services ordered and the specific number of tokens.     1. Delivery  (a) Subject to Reseller's compliance with the terms and procedures set forth in this Agreement, Diversinet shall provide to Reseller or to  Customers the Products properly ordered by Reseller and accepted by Diversinet in material compliance with the applicable terms hereof,  notwithstanding any inconsistent or additional terms which Reseller includes in any Customer agreement.    (b) Unless otherwise agreed to by the Parties, delivery of the Products shall take place via electronic transmission or by courier, and will take  place within two (2) Business Days of a written request or purchase order for software and within five (5) Business Days for a standard  appliance. Custom built appliances or software are subject to evaluation and delivery date will be communicated after assessment. Business  Day shall mean 9:00 a.m. to 5:00 p.m. (Eastern Standard Time), Monday through Friday, excluding all statutory holidays observed in the  Province of Ontario in Canada. Delivery will be F.O.B. Diversinet's facility. Reseller shall have fifteen (15) calendar days after the later of (i)  the delivery of any of the Products by Diversinet; or (ii) any applicable evaluation period; to inspect the Products and ensure their  substantial compliance with the corresponding documentation. Unless Reseller notifies Diversinet within such fifteen (15) day period that  any of the Products fail to substantially comply with the relevant documentation, such Products shall be deemed accepted. In the event  Reseller rejects any of the Products, Reseller shall give Diversinet written notice of rejection, specifying in reasonable detail the basis for  such rejection. Diversinet will use commercially reasonable efforts to correct any nonconformance and re-deliver such Products to Reseller.    1. Reseller Covenants  (a) Manner of Performance. Reseller shall: (i) use commercially reasonable efforts to market and sell the Products and Services to Customers;  (ii) conduct business in a competent and professional manner that reflects favorably at all times on the Products and the goodwill and  reputation of Diversinet; (iii) avoid deceptive, misleading, or unethical practices that are or might be detrimental to Diversinet or the  Products, or to the public in general; (iv) not make any false or misleading representations with regard to Diversinet or to the Products; (v)  not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to  Diversinet or the Products or related services; (vi) not make any representation, warranties or guarantees to potential Customers or to the  trade with respect to the specifications, features or capabilities of the Products that are inconsistent with published statements made by  Diversinet; and (vii) comply with all applicable federal, state, region, and local laws and regulations related to the performance of its duties  hereunder.     (b) Reporting Requirements. Reseller shall, on a monthly basis, communicate to Diversinet information about Customers as reasonably  requested by Diversinet including, but not limited to, Customer business, marketing, sales and technical information, installation, service  delivery and on-going maintenance information.    (c) Technical Expertise. Reseller and its staff shall be conversant with the technical language conventional to the Products and similar  technologies in general, and will develop sufficient knowledge of the industry, of the Products and of products competitive with the  Products (including specifications, features and benefits) in order to explain in detail to potential Customers and End Users the differences  between the Products and competitive products and services.    (d) Branding. Reseller may provide its own branding for the Products; however Reseller will include a powered by Diversinet tag or such  similar identifiers as mutually agreed to by the Parties. Should Reseller require Diversinet to brand the Product, then such work will be  done under a separate statement of work to be agreed upon in writing by the Parties.     1. Fees and Billing





(a) Rates. For the Diversinet Products sold or distributed by Reseller, Reseller shall pay Diversinet the applicable list price, in U.S. dollars, for  such Product, less the applicable discount for each Product, all as set out in Schedule 3. Any reference to any amounts or currency in this  Agreement means United States dollars or U.S. dollars.    (b) Billing. Diversinet will invoice Reseller for applicable one time Token Fees and the upfront annual Validation and Support Fee upon setting  up a master account for each Customer and pre-loading it with MobiSecure tokens. Other fees and charges payable under this Agreement  will be invoiced to Reseller according to terms set out in this Agreement or any applicable schedules or attachments hereto. Reseller shall be  responsible for payment to Diversinet of all invoiced amounts for Products and services provided by Diversinet at Reseller's request to  Reseller, its Customers and/or End-Users.     (c) Payment Terms. Invoices are due and payable within 30 calendar days from the invoice date or from when the amount is due, whichever is  later.    (d) Late Charges and Taxes. All overdue amounts shall bear interest at the rate of 1% per month (12% per annum, simple interest), or the  highest rate allowed by applicable law, whichever is less, until paid in full. Interest shall accrue on a daily basis. Fees do not include any  sales, transfer, use, property, value added and other taxes, or any customs duties, tariffs or other governmental charges, all of which (if any  are due and have been incurred within the Territory) are assumed and payable by Reseller (except for taxes imposed on Diversinet's net  income). Providing proof of an exemption from any such duty, tax or charge is the responsibility of Reseller. Diversinet acknowledges and  agrees that Reseller shall withhold any applicable non-resident withholding taxes from any amount owing hereunder and remit such taxes to  the applicable federal taxing authority without provision for gross-up, if Diversinet becomes a non-resident of Canada or assigns the  Agreement to a non-resident of Canada and if Diversinet does not provide Reseller with an appropriate exemption thereto.    (e) Network Charges. The Customer or End User shall at all times be responsible for all mobile network data, roaming or airtime charges, SMS  related charges, application certification charges or marketing costs and any other fees or levies related to the cellular or wireless network  over which the Products are offered and/or provisioned, as well as Customer's own Internet access fees (collectively, the Network  Charges). None of the fees chargeable hereunder include any Network Charges and Reseller shall ensure that Customer shall indemnify  and hold harmless Diversinet and Reseller against any such Network Charges that may be levied against them for the operation of the  Products.    1. Training and Consulting  (a) Diversinet will arrange for the initial personal technical and sales instruction of up to three (3) Reseller personnel for up to five (5) days in  learning the functions, installation, integration, operation and maintenance of the Products. Such instruction shall take place in Diversinet's  corporate headquarters and expenses of the Reseller personnel incurred for attending such initial instruction shall be paid by Reseller. There will be no charge for this initial training. Thereafter, Diversinet will make available to Reseller standard Product training courses  generally offered by Diversinet at the list price.    (a) Upon Reseller's request, Diversinet will provide Reseller with pre-sales consulting and post-sales consulting at the Diversinet's standard  rates. Post-sales consulting will be provided under a separate services agreement to be entered into by the Parties, which shall include  specific statement(s) of work.    (b) Statements of Work (SOW). Fees for any future development services shall be as agreed to by the Parties in an SOW. Reimbursable  expenses agreed to by Reseller shall be paid by Reseller within thirty (30) days of Diversinet's documented invoice. Diversinet shall offer to  perform such work at Diversinet's then standard daily rate (currently at $1,500 per day). Reseller hereby agrees and acknowledges that  Diversinet shall own all code, documentation and modifications to the code or documentation, and all copyrights, trade secrets and other  intellectual property rights with respect to any such code or documentation. Diversinet hereby agrees and acknowledges that Reseller owns  any and all intellectual property rights with respect to any Reseller-specific private label associated with the software.     1. Support  (a) Services. Diversinet may provide, upon written agreement between the parties, the server hardware, physical environment, including  physical security, HVAC and power for the server hardware, all as required to provide the Products as described in Schedule 2. Diversinet  may also provide internet connectivity, by being responsible for network operation and availability from the public Internet up to the  termination cables at the network interface card on the server hardware. Diversinet shall use commercially reasonable efforts to maintain  connectivity, through the public Internet, between the server hardware and the wireless network operators or other network on which an End  User's device operates. Diversinet specifically excludes any responsibility for any connectivity between a network operator and a wireless  device, including any SMS, SMTP, or other connectivity. The products, their related service objectives and each Party's related  responsibilities in respect thereto are to be more fully described in a separate agreement.    (b) Service Term. During the Term, and subject to Reseller's payment of the annual Support Fees, Diversinet will provide support for the  Products in accordance with the terms set out in Schedule 5. Furthermore, Diversinet will support the existing Reseller trial including Apple  App Store submission until December 31, 2010. Diversinet will support the Reseller certification with Canada Health Infoway, at no additional  cost, until December 31, 2010.     (c) Standard Support. Reseller's Customers will be responsible for first level support to End-Users. Reseller will be responsible for second level  support to its Customer. Diversinet will provide third level support to Reseller. Diversinet will accept electronic mail messages via the Internet  using SMTP compliant software (E Mail) addressed to: support@diversinet.com, from Reseller with questions regarding the functions of  the Products, as well as questions about how to make full use of the software (Support Questions). If second level support is not being  provided by the Reseller, Diversinet may, at its sole discretion, provide additional support to Reseller. In these cases, Diversinet may charge  the Reseller for support services or reduce the product price discount provided to Reseller.     Reseller's Support Questions must be referred to Diversinet by a single person, designated initially as Primary Technical Support Contact  (Primary Contact)  set out in Schedule 1, unless Diversinet is notified in writing of an alternate technical support contact (Alternate  Contact). The names and e-mail addresses of up to four (4) Alternate Contacts (along with the name of the particular project or department)  shall be designated in a list provided by the Primary Contact via E Mail at support@diversinet.com. All Primary Contacts and Alternate  Contacts (collectively, Contacts)  must be members of the designated project or department. It is Reseller's responsibility to provide





Diversinet with an initial list of Contacts and to keep that list current in order to receive timely service.    (d) Updates. During the Term, Diversinet will provide updated versions of the Products (Updates). Updates shall be designated by a version  number with a higher number to the right of the decimal point (e.g., version 1.4 is an Update to version 1.2), but do not include New Releases  or Custom Releases (which are designated with a higher number to the left of the decimal point, or at the end with a letter, respectively). Prior  to delivering any Updates, Diversinet may require Reseller to sign a revised schedule if any additional grants or licenses are required for an  Update.     (e) Internet Access. Diversinet may provide, at no additional cost, access to Diversinet's Internet-based Frequently Asked Questions (FAQ's)  archives, a defect 'fix' list, or a private discussion forum available to all Products support customers, which will be moderated by Diversinet's  engineers when available.    (f) Beta Versions. Diversinet may provide Reseller with access to Beta Test versions of Updates to Products as described in paragraph (d)  above.    (g) Update Input. Diversinet will give special consideration to Reseller's feature requests for future versions of the Products.    1. ASP Sales  The Reseller may sell the Products as an Application Service Provider (ASP) sales model. Under an ASP model, the Reseller shall provide the  Products through computer-based services to End Users over a network. The Reseller shall be responsible for providing, at the Reseller's sole cost  and expense, the infrastructure, network, hosting environment, support and/or website. Reseller warrants and guarantees that Diversinet shall  have no obligations, representations or guarantees to the End User for sales made by the Reseller under an ASP sale.    2. Confidential Information  (a) Reseller agrees that all software, documentation and materials provided with the Products and all information contained therein is owned by  Diversinet. The Parties agree that any other information of a confidential or proprietary nature provided by one Party to the other from time  to time, whether marked as Proprietary,  Confidential,  Secret  or any other designation implying confidentiality, is owned by the  disclosing Party (all such information hereafter, collectively Trade Secrets). Both Parties shall treat the other Party's Trade Secrets with  the same care as they treat their own confidential information of a like nature, but in no case shall the receiving Party use less care in  handling the Trade Secrets than would be reasonable under the circumstances. The Parties agree not to make the other Party's Trade  Secrets available in any form to any third party, or use the other Party's Trade Secrets for any purpose other than as set forth in this  Agreement or as authorized by the other Party in writing. The Parties' obligations under this subsection shall survive the termination or  expiration of this Agreement.    (b) General Exclusions: The Parties' obligations set out in this section shall not apply to any information which is:  (i) rightfully in a Party's possession before receipt from the other Party;  (ii) independently developed by a Party without reference to the other Party's Trade Secrets;  (iii) approved for release by written agreement with the other Party;  (iv) rightfully in the public domain;  (v) disclosed by requirement of a governmental agency or third party as expressly required by operation of law, regulation or court order. The disclosing Party shall promptly notify the other Party of the pending disclosure to allow the other Party to seek a protective order;  or  (vi) lawfully disclosed to a Party by a third party without an obligation of confidentiality to the Party.    (c) It is expressly agreed that a violation of this section will cause irreparable harm to the owning Party and that a remedy at law would be  inadequate. Therefore, in addition to any and all other remedies available at law, the owning Party shall be entitled to seek (without posting  of a bond) preliminary, injunctive, emergency or equitable relief in the event of any actual or threatened violation of any or all of the  provisions hereof.    3. Audit  During the Term and for seven (7) years after the expiration or termination of this Agreement, or such longer period as required by applicable law,  Reseller agrees to maintain complete books, records and accounts relevant to the computation of and accounting for the amounts payable under  this Agreement. Reseller agrees to allow Diversinet or its agents and representatives the right to examine and audit such books, records and  accounts during Reseller's normal business hours for no more than once per calendar quarter upon reasonable notice. If such examination reveals  a deficiency in any amounts paid, Reseller agrees to pay any such deficiency forthwith upon demand, plus interest calculated in accordance with  Section (Late Charges and Taxes) above and, if in excess of 5%, the cost of the audit incurred by Diversinet.    4. Limited Warranty  EACH PARTY DOES NOT WARRANT TO THE OTHER THAT THE MATERIALS IT PROVIDES IN CONNECTION WITH THIS AGREEMENT  WILL MEET THE REQUIREMENTS OF THE OTHER PARTY OR ITS CUSTOMERS, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED  OR ERROR FREE.     Diversinet warrants as follows:  (a) Each of the Products operates in substantial accordance with its documentation (Operation Warranty). With respect to the Operation  Warranty, Reseller's sole remedy, and Diversinet's sole obligation, shall be to cause the Product to operate substantially in accordance with  its documentation in a timely manner. All Products shall be virus-checked prior to delivery to Reseller.    (b) The services provided under this Agreement shall be performed in a timely and professional manner by personnel (Personnel) and in all  material respects in accordance with the requirements set forth here in Schedule 5 (Service Level Agreement). Personnel shall be  appropriately trained in the performance of such services under this Agreement and shall meet those standards generally observed by  reputable and competent members of the same industry providing similar services.     c) Diversinet shall ensure that there collectively is a sufficient number of employees and personnel assigned and available during the term to  provide the services in accordance with the service levels and the standards and other terms and conditions of this Agreement.





  (d) Diversinet shall exercise professional and good judgement in carrying out and performing its obligations under this Agreement.    (e) The Products do not contain any virus, Trojan horse, worm, trapdoor, backdoor, malicious code or other code or device designed to  interfere with proper use of the Software or cause harm or injury.    (h) As of the Effective Date, to the best of its knowledge, none of the Products infringes upon any third party's patent rights (Limited Patent  Warranty).    EXCEPT AS EXPRESSLY SET FORTH ABOVE, DIVERSINET PROVIDES THE PRODUCTS, DOCUMENTATION AND OTHER RELATED  SERVICES (COLLECTIVELY, THE BUNDLED PRODUCT)  TO RESELLER AS IS  WITHOUT WARRANTY, MAKES NO OTHER  WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY OTHER WARRANTIES OF PERFORMANCE, AND  IMPLIED WARRANTIES OF NON INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, REGARDING THE  BUNDLED PRODUCTS, EITHER AS A UNIT, OR AS INDIVIDUAL PARTS. EXCEPT AS ABOVE SET FORTH, DIVERSINET SHALL BEAR NO  RISK AS TO THE PERFORMANCE OF THE BUNDLED PRODUCT, AND ALL RISK IS TO BE ALLOCATED BETWEEN RESELLER AND IT  CUSTOMERS AND END-USERS, OR ANY OTHERS WHO USE THE BUNDLED PRODUCT (USERS). EXCEPT AS ABOVE SET FORTH,  SHOULD THE BUNDLED PRODUCT PROVE DEFECTIVE, DIVERSINET SHALL NOT BEAR ANY COST WHATSOEVER FOR ANY SERVICE,  REPAIR OR CORRECTION TO ANY PARTY. USERS SHALL BE SOLELY RESPONSIBLE FOR ADEQUATELY PROTECTING DATA USED IN  CONNECTION WITH THE BUNDLED PRODUCT. EXCEPT AS ABOVE SET FORTH, DIVERSINET SHALL NOT BE RESPONSIBLE FOR LOST  DATA, RERUN TIME, INACCURATE INPUT, WORK DELAYS OR LOST PROFITS, LOSS OF SECURITY FOR PROPRIETARY DATA OR ANY  OTHER INJURIES OR DAMAGES RESULTING FROM USE OF THE BUNDLED PRODUCT.    Neither Diversinet, nor its subsidiaries, nor their respective directors, officers, employees, agents, assignees, co-developers, servants and  contractors, nor the Reseller has any right to make any other representation, warranty or promise of any kind with respect to any of the Products. This Agreement does not, in itself, grant any patent license or patent right of any manner or kind. Reseller will be solely responsible for  determining which patent rights it may need to use the Products and for obtaining such licenses, where applicable. So long as the terms of this  agreement are respected, Diversinet agrees that it will not bring any suit, claim or demand against Reseller, its Customers or End-Users for breach  of Diversinet's patent rights in the Products, if any.    5. Limitation of Liability and Damages  (a) EXCEPT TO THE EXTENT DIRECT FORESEEABLE DAMAGES, IN NO EVENT SHALL DIVERSINET BE LIABLE FOR ANY INDIRECT,  SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY COMMERCIAL DAMAGES OR  LOSSES) AS A RESULT OF THE USE, SALE OR DISTRIBUTION OF THE BUNDLED PRODUCT, WHETHER BY WAY OF A LEGAL  THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR ANY OTHER THEORY,  EVEN IF DIVERSINET HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.     (b) RESELLER WAIVES ANY RIGHT IT MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR  EXPIRATION OF THIS AGREEMENT UNDER THE LAW OF THE TERRITORY OR OTHERWISE, OTHER THAN AS EXPRESSLY  PROVIDED IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THIS SECTION HAS BEEN INCLUDED AS A MATERIAL  INDUCEMENT FOR DIVERSINET TO ENTER INTO THIS AGREEMENT AND THAT DIVERSINET WOULD NOT HAVE ENTERED INTO  THIS AGREEMENT BUT FOR THE LIMITATIONS OF LIABILITY AS SET FORTH HEREIN.    (c) The availability of the MobiSecure™ Strong Authentication service depends on many factors, including Customer's connection to the  Internet, End Users' connection to the Internet, the availability of the Internet and the Internet backbone and equipment that, by its nature,  is not fault tolerant. Diversinet does not and cannot control the flow of data to or from Diversinet's network and other portions of the  Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or  inaction of such third parties can impair or disrupt Customers' connections to the Internet (or portions thereof). Although Diversinet will use  commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Diversinet cannot guarantee that  such events will not occur. Accordingly, Diversinet shall have no responsibility for any failure to meet the requirements hereunder, with  respect to performance issues, including without limitation: (i) caused by factors outside of Diversinet's reasonable control; (ii) that result  from any actions or omissions of Customers, End Users or any third parties; (iii) that result from Customers' equipment and/or third party  equipment (not within the sole control of Diversinet); (iv) caused by any act or failure to act by Customer or as a result of any Third Party  Software.    (d) NOTWITHSTANDING THE ABOVE, IN NO EVENT SHALL DIVERSINET'S LIABILITY RELATING TO THIS AGREEMENT (OR THE  BUNDLED PRODUCT) EXCEED ONE HUNDRED PERCENT (100%) OF THE AGGREGATE AMOUNT OF THE LICENSE FEES, ROYALTIES  AND SUPPORT FEES PAID BY RESELLER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCE  GIVING RISE TO THE ALLEGED LIABILITY ON THE PART OF DIVERSINET.     (e) The limitations set forth in Section 15(a), (b), (c), (d) and (e) shall not apply in respect of (i) breach of confidentiality obligations; (ii) breach  of privacy provisions as detailed in Schedule 6; (iii) the intellectual property indemnity; (iv) any Abandonment committed by Diversinet; or  (v) any willful gross misconduct (including fraud). Abandonment means Diversinet's cessation or suspension of, or refusal to perform, its  obligations under this Agreement, and such cessation, suspension or refusal (i) was knowingly intended by Diversinet to cause harm to  Reseller, and (ii) was not the result of a termination of this Agreement by Diversinet in accordance with Section 4 (Termination).    1. Indemnification  (a) Reseller Indemnity. Reseller shall indemnify and hold harmless Diversinet and/or any of its directors, officers, agents, employees,  contractors, parent companies, affiliates, and/or subsidiaries (collectively, the Diversinet Parties) from and against any claim, suit or  proceeding by a third party based on or arising out of (i) the acts or omissions of Reseller in connection with its performance or failure  to perform any other obligations in this Agreement or any agreement with a Customer, and (ii) any unauthorized representation or any  misrepresentation of fact to any third party with respect to one or more of the Diversinet Parties or Products made by Reseller or any  director, officer, agent, or employee of Reseller, provided that:





(i) Diversinet promptly notifies Reseller in writing of any such claim and Reseller has sole control of any related investigation,  defense and settlement negotiations; and  (ii) Diversinet fully cooperates with Reseller, at Reseller's expense, in defending or settling such claim.    (b) Infringement Indemnity. Diversinet shall diligently defend, indemnify and hold Reseller harmless, at its own expense, any action, loss,  cost or expense brought against Reseller to the extent that it is based upon a claim that Reseller's use of the unmodified Products as  permitted herein infringes upon a third party's intellectual property rights, and will pay the resulting costs, damages and legal fees  finally awarded against Reseller through settlement, judgment, arbitration, mediation or otherwise in such action that are attributable to  such claim, provided that:    (i) Reseller promptly notifies Diversinet in writing of any such claim under patent law and Diversinet has sole control of any related  investigation, defense and settlement negotiations; and  (ii) Reseller fully cooperates with Diversinet, at Diversinet's expense, in defending or settling such claim.    (c) Should any of the Products become, or in Diversinet's sole opinion is likely to become, the subject of any third party intellectual  property infringement claim, Reseller shall permit Diversinet, at Diversinet's sole option and expense, to:    (i) procure for Reseller the right to continue to use such Product; or   (ii) modify such Product so that it becomes non-infringing;     (d) Diversinet shall have no liability for any claim based upon:    (i) use of other than a current or the last prior release to the current unaltered version of the Products; or  (ii) use, operation or combination of the Products with non-Diversinet programs, data, equipment or documentation in a manner not  reasonably contemplated by this Agreement, if such infringement would have been avoided but for such uses, operation, or  combination; or   (iii) Reseller's or its agent's activities after Diversinet has notified Reseller that such use may result in infringement provided that the  Reseller has been provided with access to an updated version that would not be infringing.    (e) THE FOREGOING STATES OUT THE ENTIRE LIABILITY OF DIVERSINET, AND THE SOLE AND EXCLUSIVE REMEDY OF  RESELLER AND END-USER, WITH RESPECT TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE  PRODUCTS.    2. Escrow Agreement  The Parties agree to execute an escrow agreement, within 90 days of the Effective Date, with a nationally recognized escrow agent with respect to  the source code for the Products and name Reseller as a beneficiary. Diversinet will then immediately send a copy of the escrow agreement to  Reseller for its counter-signature. Diversinet shall, at least annually, deposit the source code in the escrow account. Costs associated with the  escrow agreement shall be borne by Reseller. Reseller will be provided with a copy of any deposit correspondence and escrow agent's acceptance  thereof. The escrow agreement shall provide, among other terms, that the source code shall be released to Reseller if any of the following events  (collectively the Release Conditions) occurs:    (i) Diversinet ceases to support services at levels as stated in Schedule 5 under this Agreement that is not remedied within  sixty (60) days after receipt of written notice of such failure;   (ii) Diversinet makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or  similar authority, or Diversinet becomes subject to any bankruptcy or insolvency proceeding under federal or state  statutes; or  (iii) Diversinet suspends or ceases to carry on its business and a receiver, trustee or assignee does not carry on the  business.    3. Non-Solicitation  During the Term, the Reseller agrees that it shall not induce any person employed by Diversinet to leave Diversinet's employ to become an  employee of Reseller or its agents or contractors.    4. Relationship  Nothing in this Agreement shall be construed so as to create a joint venture, partnership, employer/employee, franchisor/franchisee or  principal/agent relationship between the Parties. Reseller and Diversinet are independent contracting parties. Neither Reseller nor its employees,  consultants, contractors or agents have any authority to bind Diversinet by contract or otherwise to any obligation.     5. Choice of Forum  This Agreement shall be governed by the laws of the province of Ontario, Canada, without regard to its conflict of laws principles. Any litigation  or other dispute resolution between the Parties relating to this Agreement or its construction shall take place in the courts of Toronto, Ontario,  Canada. The Parties consent to the personal jurisdiction of, and venue in, the provincial and federal courts therein. The Parties agree that the  United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. No action against Diversinet  regardless of form, including negligence, arising out of any claimed breach of this Agreement or transactions under this Agreement may be  brought by Reseller more than two years after the cause of action has accrued.     6. Assignment  Without the express prior written consent of Diversinet (not to be unreasonably refused), Reseller may not assign this Agreement or its interest  herein in whole or in part but Reseller shall continue to be responsible should the assignee fail to perform. Diversinet may assign this Agreement at  any time and in such event, this Agreement shall continue in full force and effect as if the assignee were named as the licensor in the first instance  but Diversinet shall continue to be responsible should the assignee fail to perform. This Agreement shall be binding upon and inure to the benefit  of the successors and permitted assigns of the Parties.    7. Interpretation





This Agreement, including all Schedules, attachments and addenda, is the entire agreement constituting the complete and exclusive statement of  the terms and conditions between the Parties with respect to the subject matter hereof, and cancels and supersedes all previous negotiations,  commitments, writings and agreements that the Parties may have entered into. The Parties acknowledge that they have read this Agreement,  understand it and agree to be bound by its terms and conditions. Except for Diversinet's unilateral right to update certain Schedules as specifically  set out in such Schedules, any subsequent waiver or modification of this Agreement or any part hereof shall only be effective if in writing and  signed by both Parties. No delay or failure to enforce any right under this Agreement shall be considered a waiver of that Party's rights to  thereafter enforce each and every right and provision of this Agreement. In addition, headings set out in this Agreement are an organizational aid,  not a substantive part of this Agreement, and are not intended to limit or expand the language of each section. Any person signing this Agreement  (or any later modifications or addenda) on behalf of Reseller warrants that he or she has the authority to bind Reseller. Time shall be of the essence  of this Agreement.    8. Attorney Fees  The prevailing Party (as determined by the finder of fact) in any law suit or other dispute resolution to enforce or interpret any part of this  Agreement shall be entitled to recover, as a costs of suit, reasonable attorney's fees as determined by the finder of fact (including, but not limited  to, costs, expenses and fees on appeal).    9. Severability  If any part of this Agreement shall be found invalid or unenforceable by a court of competent jurisdiction, said portion shall be severed from the  Agreement, and the remainder shall be interpreted so as to reasonably effect the intention of the Parties. Any limitation of liability, disclaimer of  warranties and exclusion of damages set out in this Agreement are expressly intended to exist independently from, and to be severable from, this  Agreement.    10. Force Majeure  Neither Party shall in any circumstances be liable to the other for any loss of any kind whatsoever including, but not limited to, any damages or  abatement of charges whether directly or indirectly caused to or incurred by the other Party by reason of any failure or delay in the performance of  its obligations hereunder which is due to circumstances beyond the reasonable control of the affected Party, including, without limitation, acts of  God, acts of terrorism, fire, flood, strike, labour disputes, civil, commercial sabotage, statute order or any regulation of any government public or  local authority.    11. Compliance with Laws  The Products include software (Software) that is commercial computer software developed at private expense, and in all respects is proprietary  data belonging solely to Diversinet or its suppliers. Reseller shall comply with all applicable export and import control and other relevant laws of  any applicable jurisdiction. Determination of the applicable law is Reseller's responsibility. Reseller understands that the Products utilize  cryptographic products that are highly regulated.     12. Publicity  The Parties shall use commercially reasonable efforts to issue a joint press release concerning this Agreement after the execution hereof. Any  further use of the other Party's name or logo in any publicity materials is prohibited without such other Party's prior written consent, which  consent shall not be unreasonably withheld.    13. Notices  Any notice, demand, or communication between the Parties shall be deemed given and received: (i) when personally delivered; (ii) when  transmitted by facsimile with proof of transmittal; or (iii) five (5) days after deposit (properly addressed with postage prepaid) with the postal  service for registered/certified mail. The addresses and contact information may be changed at any time by giving written notice as allowed under  this section. Reseller's address and contact information are as set out in Schedule 1. Address and contact information for Diversinet are as follows:   Diversinet Corp.  Attention: Chief Financial Officer  2235 Sheppard Avenue East, Suite 1700  Toronto, Ontario, Canada M2J 5B5  Phone: 416-756-2324 Fax: 416-756-7346    14. Survival  Any terms or conditions of this Agreement by which obligations of either Party are expressed to be applicable or which extend or may extend  beyond termination of this Agreement shall survive the expiration or termination hereof.    15. Language  This Agreement shall be interpreted consistent with its English linguistic construction, and all communications between the Parties shall be  deemed to be conducted in the English language. Reseller will be responsible, at its own cost and expense, for any language and documentation  localization for the Territory.    16. Counterparts  This Agreement may be executed in two or more counterparts, by original or facsimile transmission, each of which so executed shall be deemed to  be an original and such counterparts together shall constitute one and the same document.     IN WITNESS WHEREOF the Parties have signed this Agreement, as of the date first written above, by their duly authorized representatives.    2205925 Ontario Limited  DIVERSINET CORP.

  Signature:__________________________________    Signature:__________________________

Print Name: Dr. Wendy Graham Print Name: Albert Wahbe

Title: President Title: CEO







Schedule 1  Reseller Information

          #

Date Signed_________________________________ Date Signed________________________

Name 2205925 Ontario Limited

Street Address 111 Main Street West, Suite 304

City North Bay, ON

Country Canada

Zip/Postal Code P1B 2T6

Billing Address (if different from above)   Shipping Address (if different from above)   Telephone   Facsimile   Person Signing Contract Dr. Wendy Graham

E-mail Address drgraham@vianet.ca

Primary Technical Support Contact   Address and Contact Information  for Notice section in the Agreement





Schedule 2  Products    Unless otherwise agreed to by the Parties, the Products shall mean the following:    1. MobiSecure® Wallet and Vault  MobiSecure® Vault server allows subscribers to securely store and manage their personal data and other information, select the information to be  downloaded to their mobile devices and share it with others via email, fax or SMS messaging. The MobiSecure® Vault server is designed to host  and manage a variety of different types of personal information e.g. financial, health, identities and passwords. It provides a framework for  administrators to define and customize the information to be hosted and managed and supports a plug-in architecture and web service interfaces  to allow for rapid integration with external information, payment and messaging systems.     MobiSecure® Wallet application works in conjunction with the MobiSecure® vault server. It is designed to run on desktop computers and mobile  platforms including Java based phones, RIM Blackberries®,  Microsoft Windows Mobile®,  iPhone, Android and BREW devices. The Wallet  application provides offline and online access to personal information. Information is stored in the device for instant and offline access securely  using a patented technique. The information is synchronized automatically or upon user's request with the vault server using a secure data  synchronization protocol. Users may use the wallet application to access their information instantly when they are traveling, retrieve additional  information from the vault server or send their information to others via email, SMS or fax. The wallet application includes an embedded software  One-Time-Password (OTP) token to allow for secure and easy access to the vault server using dynamic password based authentication.     The MobiSecure® Wallet SDK and MobiSecure® Vault API allows customers and third party developers to build secure mobile applications by  leveraging Diversinet's Wallet secure container services.    Applications features and benefits (utilizing Wallet and Vault) include:  Patient Portal  The Patient Portal is a set of web pages designed to permit patients to display, add, delete and update information pertaining to their  demographics, attending physicians, chronic conditions, allergies, immunizations and messages received from registered doctors and clinical  staff.    The Physician's Tool  This is a windows based application which permits doctors and authorized 'circle of care'  workers to access patient records stored in the  information repository. These users may add, delete or update the patient records and may also 'Validate' existing records. Validation consists  of marking the records as 'Validated' and making them read only from that point to maintain record values that the physician has agreed to by  validating the record.    The Physician's Tool also can create and display secured messages to the patient which will be protected by the Diversinet MobiSecure® Health platform. The tool can also display a complete record of messages sent to the patient with associated time and date of acknowledgment  from the patient. The administrator users of the tool can also add and delete doctors and other circle of care worker accounts in order to  administer the operation of the clinical side of the Diversinet Platform.    Message Manager  The Message Manager is a tool used to collect and display incoming patient messages to the clinic and answer's to previously sent  questions from the clinic. The Message Manager permits the user to prepare reply messages as well as automatically preparing an audit trail of  all display and reply activities.    Message Generator  The Message Generator is an extension of the messaging tool in the Physician's Tool above, used to create user reminder messages based  upon reminder criteria and the user records in the repository for recurring action requirements. Examples include recurring tests (i.e. PAP,  colonoscopy, recurring blood work supporting medications), reminders about health and lifestyle choices, medication reminders.)     2. MobiSecure® Strong Authentication  MobiSecure® Strong Authentication is a fully automated, OATH-standards based strong authentication server product. It is available as a fully  configured appliance or a packaged software product and is designed to be easy to deploy and easy to use for high-volume Internet or wireless- based strong authentication. Its supported clients operate on mobile phones, personal computers, USB stick and can also be embedded into  microchip or smart card technologies.    The system supports Over-the-Air and Over-the-Web MobiSecure SoftToken delivery. The same system also supports the MobiSecure Validation  Server for ongoing one-time password (OTP) validation for user authentication. MobiSecure Strong Authentication components are:    The MobiSecure® Strong Authentication Platform contains the following components:  1. MobiSecure Provisioning Server  2. MobiSecure Validation Server  3. MobiSecure SMS Server  4. MobiSecure Registration/Administration Server  5. MobiSecure SoftToken Client    MobiSecure® SoftToken: MobiSecure SoftToken is a client-side software token that is available as a Mobile SoftToken or as PCToken. It can be  easily delivered, downloaded and embedded into a user's personal computer, PDA or mobile phone. It performs basic functions for managing and  generating one-time password values. The client-side software token is easily delivered, downloaded and installed into a user's device.  MobiSecure® SoftToken supports both time based and event based one-time passwords. Event based one-time passwords expire once they are  used and are no longer valid. Time based one-time passwords expire once they are used or the valid time period elapses, whichever comes first.    MobiSecure® SoftToken can be embedded into customer client applications using SDK's for mobile platforms and Windows PC. Key features of





the MobiSecure® Strong Authentication Toolkit are listed below:  1. Lightweight library allows for a modular implementation- use only the components you need  2. Client API available in C and Java programming languages for software clients  a. Allows organizations to develop their own clients or integrate with existing applications  b. DLL provided for rapid development on Microsoft Windows platform  3. Server API  a. SPML interface for integrating enterprise applications  b. SPML Java client libraries for rapid integration  c. Free Radius interface to OTP Validation Server    3. MobiSecure® SMS Messaging  MobiSecure® SMS Messaging leverages the familiarity and popularity of SMS messaging to create a secure messaging solution that utilizes state  of the art AES encryption technology to securely transmit and receive SMS messages. Messages can be both 1-Way (Push) based and 2-Way  (Pull or Push-Pull) based between mobile users and backend server applications. Unlike traditional SMS service, MobiSecure® SMS Messaging  subscribers will automatically receive message delivery and read confirmations on their mobile device.    The MobiSecure®  SMS Messaging solution offers a fully integrated secure gateway environment. This simplifies and eliminates extensive  integration efforts with multiple gateways globally. High-level APIs, allow for the submission of text messages from a third party application or  directly from the handset itself.





Schedule 3  Territory, Sales Targets, Prices and Discount    Annual Minimum Commitment (Annual Minimum Commitment or AMC). During the Term of the Agreement, Reseller shall pay to Diversinet  an Annual Minimum Commitment, payable as follows:    a) A total of four hundred thousand ($400,000) dollars shall be paid by Reseller to Diversinet as of the Effective Date.  b) A total of seven hundred thousand ($700,000) dollars shall be paid by Reseller in quarterly instalments of $175,000 to Diversinet on each of  December 1, 2011, March 1, 2012, June 1, 2012 and September 1, 2012.  c) A total of one million ($1,000,000) dollars shall be paid by Reseller in quarterly instalments of $250,000 to Diversinet on each of December 1,  2012, March 1, 2013, June 1, 2013 and September 1, 2013.  d) A total of one million three hundred thousand ($1,300,000) dollars shall be paid by Reseller in quarterly instalments of $325,000 to Diversinet  on each of December 1, 2013, March 1, 2014, June 1, 2014 and September 1, 2014.  e) A total of one million six hundred thousand ($1,600,000) dollars shall be paid by Reseller in quarterly instalments of $400,000 to Diversinet on  each of December 1, 2014, March 1, 2015, June 1, 2015 and September 1, 2015.    AMC Tokens. For each contract year that the AMC applies, Diversinet shall deliver to Reseller the number of End User licenses equal to the  contract year AMC divided by twenty-four (24) in satisfaction of the AMC. For the first contract year, the applicable service license fees for the  Mihealth pilot production shall be deducted from the AMC. There is no carryover of the AMC from one year to the next.     AMC Termination. After the first year and upon 180 days written notice, Reseller may terminate the AMC. Termination of the AMC by Reseller  shall eliminate any exclusivity of the Reseller in the Territory.    Territory  Assuming that the AMC amounts have been paid and the Reseller has not terminated the AMC, Reseller shall have the exclusive right to contract  with Canadian head quartered companies and governmental and broader public sector entities located in Canada (the Territory). Furthermore,  Reseller will have the non-exclusive right to contract in the rest of the world, excluding the United States.    Sales Targets  After AMC termination, Reseller shall generate at least the following amount of new sales of the Products in each contract year (for the purpose of  this Schedule 3, a contract year shall be each 12-month period commencing after the termination by Reseller of the AMC). New sales are defined as  the aggregate amount of all Product sales and Support Fees paid by Reseller pursuant to pricing set out below, inclusive of any applicable  discounts and exclusive of applicable taxes. If Diversinet materially reduces Reseller's Territory, the Parties shall negotiate and, acting reasonably,  adjust Reseller's sales targets.    Contract Year 1: $750,000 (quarterly targets at ¼ of annual amount)  Contract Year 2: $1,000,000 (quarterly targets at ¼ of annual amount)  Contract Year 3: $1,250,000 (quarterly targets at ¼ of annual amount)  Contract Year 4 onward: $1,500,000 (quarterly targets at ¼ of annual amount)    Product Prices and Discount:  Diversinet maintains a product price list that details the products available and the list price. The product price list is incorporated by reference to  this Agreement. The Product List Price is subject to change by Diversinet upon provision of at least thirty (30) days' written notice to Reseller.    Reseller shall be entitled to the following discount to the following Diversinet's standard pricing:  Discount %  For annual revenues < $1m 30%  For annual revenues > $1m and <$2m 40%  For annual revenues > $2m 50%    Product Price List Terms and Conditions  ÿ Price proposals are valid for 30 days and subject to change by Diversinet at its sole discretion  ÿ All prices are expressed in United States dollars  ÿ Prices do not include any applicable taxes  ÿ Prices do not include shipping and additional charges  ÿ Support and maintenance fees are 20% of the server license fee, payable annually in advance after the first year and include: patch,  maintenance and major release updates, Diversinet online technical support and email/phone technical product support from Monday- Friday, 9:00a.m.-5:00p.m., excluding statutory holidays  ÿ Optional maintenance and level 2 support and training is available at $1,500 per person day (excluding travel and out-of-expenses)  ÿ Professional services are available at $1,500 per person day (excluding travel and out-of-expenses)    SCHEDULE 4

CUSTOMER TERMS & CONDITIONS

Reseller agrees to include terms and conditions in its Customer agreements that are reflective of the following:

(a) the Customer is granted a non-exclusive, non-transferable and non-assignable right to use the Products solely for their intended use;    (b) the Customer may not reverse engineer, decompile, alter, transfer, modify or create a derivative work of the Product;    (c) no ownership rights to the Products and documentation are transferred to the Customer;    (d) the Customer may not use the Products otherwise than as a part of the equipment, hardware or software in which any Product has been  incorporated or for which it has been delivered;





  (e) the Customer may not remove any proprietary, copyrights, trade secret or warning legend from any Products or documentation or copies  thereof;    (f) the Customer may not furnish the Products or documentation into any country in violation of any export control laws or regulations.    The Reseller's agreements with its Customers shall also contain disclaimers of warranties and limitations of liabilities with respect to the Products  and documentation at least as restrictive as those set forth in this Agreement.  SCHEDULE 5  Service Level Agreement    1. Overview. This Support Plan Schedule (SLA)  details the terms for technical support provided by Diversinet during the term of this  Agreement to the Reseller's Technical Support team, provided however, Reseller is current with payment of all fees. The Reseller's  Subscribers shall interface with the Reseller Technical Support only. The Reseller Technical Support shall escalate product issues of a certain  severity and above to Diversinet Technical Support. This SLA specifically addresses: (i) the service levels definition, measurement and  minimum service standard in effect for the product, and (ii) technical support definition, availability and response timeframes.     1.1 Reseller Technical Support Escalation Path Around Product Issues    1.a.1 Subscriber call arrives at the Reseller Level 1 Support: the Reseller Level 1 Support will open a trouble ticket and attempt to  resolve the issue. If no resolution, trouble ticket escalates to the Reseller Level 2 Support.    1.a.2 Level 2 Support attempts to resolve the Subscriber trouble ticket utilizing documentation, tools and procedures provided with  the product. If Level 2 Support can't resolve the problem, Level 2 shall make a judgment call as to whether this appears to be a  Subscriber problem or a Diversinet product related problem. Level 2 will escalate the trouble ticket to the Reseller Engineering  Maintenance and Escalations. (EME).    1.a.3 The Reseller's EME will investigate. If this is indeed a Subscriber related problem, EME will be responsible for resolution. If EME  determines this is actually a Diversinet Software issue, EME will send the trouble ticket back to Level 2 for dispatch to  Diversinet. Level 2 Support will escalate the trouble ticket to Diversinet for resolution. Level 2 Technical Support still owns the  Subscriber relationship. Anyone in Reseller Level 2 Technical Support can escalate to Diversinet.     1. Diversinet Support Service Availability.    Technical Support Availability.  Diversinet Technical Support will be available to accept and respond to problem calls or email from  Reseller's Technical Support from 9:00 am - 5:00 pm Eastern Standard Time (US), 5 days a week (Monday through Friday), 52 weeks a year,  excluding United States and Canadian national holidays. During such hours, technical support calls or email will be answered immediately by  the support staff. Diversinet will provide a phone option to speak directly to a trained technical support representative. Diversinet will make  the reasonable commercial effort to answer promptly to calls.    2.1 Diversinet Contact information

  2.2 Reseller Contact information

  2.3 Response Time  Response Time shall mean the time it takes to respond to a request specific to the Severity (defined below) of the incident as described  below. In the event the response time is not met the incident shall be escalated as described below.    Escalation of Incident: Definitions of Severity levels    Severity 1 Problems. Severity 1 Problems generally include any events that have a significant impact on the operations of the system and  have an impact on Subscribers' use of the Software, such as:   ÿ

Designation Name (if  applicable)   Direct Tel. No  Cell Tel  E-Mail

Technical Support N/A 416 756 2324 x 300 N/A support@diversinet.com

Technical Support &  Escalation Manager   Charles Blair 416 756 2324 x 234 416 562 1773 cblair@diversinet.com

TS VP  David Annan 416 756 2324 x 232 416 587 0108 dannan@diversinet.com

Designation Name (if  applicable)   Direct Tel. No  Cell Tel  E-Mail

Technical Support &  Escalation Manager

TS VP

System or application is down or unavailable; transactions can't be processed.   ÿ Any event that significantly disrupts or threatens to disrupt service levels of the Software due to errors in the software, tools or  system configuration provided by Diversinet.   ÿ Any online application outage that significantly impacts the online availability and service level of the Software.   ÿ Consistent degradation of performance (response time or function) that significantly impairs the Software.   ÿ Any repeating unresolved incidents that have significant impact on the operations of the Diversinet Based Service or Subscribers'  use of the Software.





ÿ Resolution may involve software changes, configuration modifications, operating procedure changes or 'workarounds'. Resolution  shall be defined as a situation wherein the system is restored to a state wherein the effective outage is relieved.    Severity 2 Problems. Severity 2 Problems generally includes any events (other than Severity 1 Problems) that adversely affect the operation  of the Diversinet Based Service or the User Software, such as:   ÿ An error that disables only certain non-essential functions of the User Software and may result in degraded operations, including  without limitation, an error that results in computer transactions not processing properly.   ÿ An error/event that disables only non-essential functions of the User Software, but also adversely affects the use of the User  Software.   ÿ Resolution may involve software changes, configuration modifications, operating procedure changes or 'workarounds'. Resolution  shall be defined as a situation wherein the system is restored to a state wherein the effective outage is relieved.    Severity 3 Problems: Severity 3 Problems generally includes minor events that do not have a significant impact or adverse effect on the  operation or performance of the Diversinet Based Service or the User Software.     Severity 4 Problems: Severity 4 Problems generally are potential Software enhancements or feature requests that Subscribers request of  Reseller Technical Support. This is to help Diversinet track Reseller's requests and process them appropriately.    Problem Isolation: Diversinet Technical Support will provide best efforts to mitigate all service affecting conditions which may arise. For each  S1 - S3 incident Diversinet will produce an Incident Report provided to Reseller. Situations where there are unapproved variations made in the  approved design, configuration, network or systems environments are not covered under this SLA. Furthermore, this SLA does not cover  problems encountered by end users relating to hand held devices hardware, software and network problems that are outside the control of  Diversinet or not supported by Diversinet. Diversinet will inform/publish to Reseller a quarterly list of mobile devices, related software and  network operators and telecommunication companies that can support Diversinet software, products and services.    Resolution Target: Diversinet will commit to provide a resolution to problems caused by its software, tools or procedures. Every effort will be  made to prevent maintenance procedures during Scheduled Maintenance Times from affecting service availability.     Table 1: Escalation Tiers and Initial Response Times

    #

Priority  Level  Technical Support Initial  Response (in Hours)  Escalation to Manager (in  Hours)  Escalation to VP (in  Hours)

S1 1 2 3

S2 2 4 24

S3 4 8 48

S4 Next Business Day





SCHEDULE 6   PERSONAL INFORMATION  Definitions, Interpretation  1) In this Exhibit D:

a) Agreement  means the License Agreement between Diversinet Corp. (Licensor)  and 2205925 Ontario Limited (Licensee)  with  effective date of January 10, 2011;

b) Personal Information means information that is defined as personal information in PIPEDA, including without limitation personal  health information, that is held, transmitted or stored on or by the Software licensed to Licensee under the Agreement;

c) PIPEDA means the Personal Information Protection and Electronic Documents Act (Canada); and

d) Services means the services provided by Licensor to Licensee under the Agreement including without limitation, the Support Services.

2) Any capitalized term that is not defined in section 1 above has the meaning attributed thereto in the Agreement.

3) The parties acknowledge and agree that:

a) Licensee represents that it is an organization subject to PIPEDA and Licensor is a third party service provider to the Licensee in  connection with the Services;

b) Licensee's End Users shall interface with Licensee Technical Support only and in general, Licensor will not require access to Personal  Information to provide the Services;

c) notwithstanding subsection 3(b) above, Licensor may from time to time require access to Personal Information to provide the Services;

d) Licensor shall only access Personal Information with the prior written consent of Licensee;

e) Licensor shall not download, which for the purposes of this Privacy Exhibit includes copy, hold or otherwise save Personal Information,  without the prior written consent of Licensee and for greater certainty, consent to access Personal Information does not constitute  consent to download Personal Information;

f) where Licensor receives consent to access, access and download or access and otherwise use Personal Information, the terms and  conditions of this Privacy Exhibit shall apply to Licensor in relation to those activities; and

g) where Confidential Information of the Licensee is also Personal Information, the provisions of this Privacy Exhibit take priority over  section 7 of the Agreement in the event of any conflict.

Ownership of Personal Information/ Prohibition on Disclosure  4) Nothing in this Privacy Exhibit shall be interpreted or construed to give Licensor any interest in or control of Personal Information and for  greater certainty, as between Licensor and Licensee, Licensee owns and controls and shall continue to own and control Personal Information.

5) Licensor shall not disclose Personal Information. For clarity, the use of Personal Information by employees, agents and representatives of  Licensor in accordance with this Privacy Exhibit does not constitute the disclosure of Personal Information by Licensor to those employees,  agents and representatives.

Safeguards   6) Notwithstanding any provision to the contrary in the Agreement, Licensor shall not subcontract or assign any of the Services that may  require access to or the downloading or other use of Personal Information except with the prior written consent of Licensee or as required to  be disclosed by a governmental agency or third party as expressly required by operation of law, regulation or court order.

7) Licensor shall use security safeguards that meet or exceed industry standards to protect Personal Information against such risks as loss and  unauthorized access, collection, use, disclosure and destruction.

8) Notwithstanding any provision to the contrary in the Agreement, Licensor shall not, except with the prior written consent of Licensee, access  or use Personal Information from outside Canada or transmit Personal Information outside Canada.

9) Where Licensor downloads Personal Information in accordance with this Privacy Exhibit, Licensor shall prohibit its employees, agents and  representatives from downloading Personal Information onto any portable device, unless the information is encrypted in accordance with  industry standards for strong encryption.

10) Licensor shall segregate Personal Information from information of any person other than Licensee.

11) Subject to a written direction from Licensee to securely destroy Personal Information, upon the expiry or termination of the Agreement and at  any other time at the request of Licensee, Licensor shall promptly return to the Licensee Personal Information that Licensor downloaded in  accordance with this Privacy Exhibit.

Inspection and Audit  12) In addition to any other rights of inspection, review and audit Licensee may have, Licensee or a person appointed by Licensee may, at any  reasonable time, on reasonable notice to Licensor, at Licensee's sole cost and expense, enter any location from or in which Licensor has  accessed, used or downloaded Personal Information to inspect, review and audit the equipment, systems (including without limitation security  systems), documents, processes and practices that are used in connection with the provision of the Services for the purpose of assessing  Licensor's compliance with this Privacy Exhibit. Licensor shall provide all reasonable assistance to Licensee in relation to any such  inspection, review and audit.

13) Licensor shall track the access, downloading and use of Personal Information, in accordance with this Privacy Exhibit, by its employees,  agents and representatives and maintain a record of such activities. Within twenty-four hours of a request, Licensor shall provide Licensee





with a copy of any or all of the records created and maintained under this section 13.

Licensor Employees, Agents, Representatives  14) Licensor shall ensure that it only permits access to Personal Information to those of its employees, agents and representatives who: (a) will  need access to Personal Information to deliver the Services; (b) have received training in the protection of Personal Information; and (c) have  agreed to comply with the provisions of sections (5), (8), (9), (10) and (12) of this Privacy Exhibit.

Notice of Non-Compliance  15) If for any reason Licensor does not comply or anticipates that it shall be unable to comply with a provision of this Privacy Exhibit in any  respect, Licensor shall promptly notify Licensee of the particulars of the non-compliance or anticipated non-compliance and of the steps it  proposes to take to address or prevent the recurrence of the non-compliance or anticipated non-compliance.

Default   16) Notwithstanding anything to the contrary in the Agreement, Licensor acknowledges and agrees that a breach of this Privacy Exhibit by  Licensor which remains uncured for a period of sixty (60) days shall constitute a material breach and grounds for the termination on notice of  the Agreement by Licensee without cost or liability to Licensee. Without limiting the foregoing, Licensor agrees that in addition to any other  rights or remedies Licensee may have for material breach of the Agreement, Licensee has the right to an injunction or other equitable relief in  any court of competent jurisdiction enjoining a threatened or actual breach of this Privacy Exhibit by Licensor.

No Withholding  17) Licensor shall not, and hereby forever waives any and all right to, refuse to return Personal Information to enforce any alleged payment  obligation or in connection with any dispute connected with the Agreement or any other matter between Licensor and Licensee.

Survival  18) The obligations of Licensor under this Privacy Exhibit shall survive the termination of the Agreement.

  # 
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.

Output: THE FOREGOING STATES OUT THE ENTIRE LIABILITY OF DIVERSINET, AND THE SOLE AND EXCLUSIVE REMEDY OF  RESELLER AND END-USER, WITH RESPECT TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE  PRODUCTS.


Input: Consider Input: [LOGO]

SECOND AMENDMENT TO CO-BRANDING AGREEMENT

THIS SECOND AMENDMENT TO CO-BRANDING AGREEMENT (this Amendment) is made and entered into, effective for all purposes and in all respects as of the 23rd day of February, 1998, by and between PC QUOTE, INC., with its principal place of business at 300 South Wacker Drive, Chicago, Illinois 60605 (PCQ) and A.B. Watley, Inc., with its principal place of business at 33 West 17th Street, New York, New York 10011 (ABW).

WHEREAS, PCQ and ABW have executed that certain Co-Branding Agreement dated October 11, 1996, as amended on December 10, 1996 (as so amended, the Agreement);

WHEREAS, the parties hereto desire to further amend the Agreement to modify the provisions of the Agreement regarding [***] of the term thereof; and

WHEREAS, the parties hereto desire to set forth herein the terms and conditions of their agreements and understandings with respect to the foregoing.

NOW, THEREFORE, in consideration of the foregoing, of the mutual promises for the parties contained herein and of other good valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending legally to be bound, hereby covenant and agree as follows:

1. The preamble hereto is incorporated herein and, by this reference, is made a substantive part hereof.

2. The text of Section 2. A. and B. of the Agreement is hereby deleted in its entirety and the following language is inserted in its stead:

[***]

3. To the extent, if any, that provision of this Agreement conflicts with or differs from any provision of the Agreement, such provision of this Second Amendment shall prevail and govern for all purposes and in all respects.

4. Except as modified hereby, the Agreement and its terms and provisions are hereby ratified and confirmed for all purposes and in all respects.

5. This Second Amendment may be executed in several counterparts, each of which shall be deemed an original but all of which collectively shall constitute the same instrument.

Source: PCQUOTE COM INC, S-1/A, 7/21/1999





IN WITNESS WHEREOF, the undersigned parties have hereunto affixed their signatures and seals as of the day and year first above written.

PC QUOTE, INC.

By:  /s/  Scott Clyde ------------------------ Name: Scott Clyde ---------------------- Title:  VP --------------------

A. B. WATLEY, INC.

By:  /s/  Robert Malin ------------------------ Name: Robert Malin ---------------------- Title:  President --------------------

-2-

Source: PCQUOTE COM INC, S-1/A, 7/21/1999 
Question: Highlight the parts (if any) of this contract related to Effective Date that should be reviewed by a lawyer. Details: The date when the contract is effective


Output: 23rd day of February, 1998