instruction:
In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
question:
MOBILE APPLICATION DEVELOPMENT AGREEMENT (Agreement No: VAL/MAD/PVTINV/DC/190305/1) EDT (Electronic document transmissions)

EDT (Electronic document transmissions) shall be deemed valid and enforceable in respect of any provisions of this Contract. As applicable, this agreement shall be:- Incorporate U.S. Public Law 106-229, ''Electronic Signatures in Global and National Commerce Act'' or such other applicable law conforming to the UNCITRAL Model Law on Electronic Signatures (2001) and ELECTRONIC COMMERCE AGREEMENT (ECE/TRADE/257, Geneva, May 2000) adopted by the United Nations Centre for Trade Facilitation and Electronic Business (UN/CEFACT). EDT documents shall be subject to European Community Directive No. 95/46/EEC, as applicable. Either Party may request hard copy of any document that has been previously transmitted by electronic means provided however, that any such request shall in no manner delay the parties from performing their respective obligations and duties under EDT instruments.

PRIVATE & CONFIDENTIAL

1-

2-

3-

Source: VGRAB COMMUNICATIONS INC., 10-K, 1/29/2020





Mobile Application Development Agreement Agreement No: VAL/MAD/PVTINV/DC/190305/1

Mobile Application Development Agreement This Mobile Application Development Agreement (the Agreement) is made and effective from 5th Day of March, 2019 BETWEEN: VGrab Asia Ltd. (hereinafter called as the VAL), located at Room E, 6th Floor, Eastern Commercial Center, 397 Hennessy Road, Hong Kong. AND: Mr. Zheng Qing, Mr. Gu Xianwin and Ms. Chen Weijie (hereinafter called as the Developer), a group of private software developers individuals' lead and coordinated by Ms. Chen Weijie with its operations in P.R.China. And hereinafter, the parties hereto shall be referred to as Party or Parties. RECITALS Whereas, VAL wishes to engage the Developer for services as an independent contractor for the sole purpose of designing the Duesey Coffee Chinese Mobile Apps and backend software contained for iPhone, iPad, Android (Hereinafter called as the Project) developed as per the requirements specifications by VAL within this mobile application development agreement Whereas, the Developer is engaged in the making of such applications and holds all the necessary tools to obtain the needed results of this Project for VAL. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto, intending, to be legally bound, agree as follows: SCOPE OF WORK The high level scope of work is the development of the Project on the requirements specifications as per Clause 6. Creative designs and graphics development is covered in the scope of work of this Agreement; Developer may recommend or create their own designs for the betterment of the App. COMMENCEMENT DATE This Agreement shall commence on 5th March 2019 AGREEMENT PERIOD This Agreement will be for the maximum period of six (6) months beginning for the commencement date, renewable in accordance with the terms hereof, unless earlier terminated pursuant to this Agreement.

Page 1 of 7

1.

2.

3.

Source: VGRAB COMMUNICATIONS INC., 10-K, 1/29/2020





Mobile Application Development Agreement Agreement No: VAL/MAD/PVTINV/DC/190305/1

ESTIMATION AND COMMERCIALS Platform iOS, Android

Development Chinese WeChat's Online Store, Social Media, Website, Online Promotion/Marketing and Online Payment for the P.R.China market. Total Delivery Time Min - 4 Calendar Months, Max - 6 Calendar Months Quotation (In USD) $ 200,000.00 Notes: Payments for this Agreement will be transferred by VAL via Bank Wire Transfer Method in US Dollars Currency as per Clause 5. PAYMENT TERMS All Parties agreed the payment listed below are fair and just for the services being provided. Payment to the following individual below within 7 days upon completion and handover on the Project to VAL. No. Name Function Amount

1. Ms. Chen Weijie Coordinator/Lead Developer USD100,000.00

2. Mr. Zheng Qing Developer USD50,000.00

3. Mr. Gu Xianwin Developer USD50,000.00 ENGAGEMENT PROCESS & MILESTONE The Engagement Process and Milestone corresponding for this Fixed Price Project Agreement are as follows: Graphic Design/ UI/ Creative Design/ multimedia The VAL is responsible for, and will supply any graphics/ design/ artwork/ multimedia (sound/ video) required for the project to the Developer at either the beginning of the project, or partially during the development. Developer will however put its recommendations; assist in graphic creation for the betterment of the App. Collaboration, coordination A status update on the progress of the work will be shared with VAL by the lead on milestones basis formally by developer, and informally on weekly/ fortnight/ or as and when required basis. Weekly status calls will also happen to discuss and review the work in progress. WeChat's Official Account Setup Developer will register a WeChat Official Account on behalf of VAL, which has access to all advanced APIs for the development of WeChat Online Duesey Coffee Store in P.R.China. WeChat's Official Social Media and Moments Setup Developer will develop and registered a Duesey Coffee Social Media Platform within the WeChat Official Account on behalf of VAL. WeChat's Mini Program and WeChat Pay Compliance

Page 2 of 7

4.

‐

5.

6.

6.1

6.2

6.3

6.4

6.5

Source: VGRAB COMMUNICATIONS INC., 10-K, 1/29/2020





Mobile Application Development Agreement Agreement No: VAL/MAD/PVTINV/DC/190305/1

Developer will develop the Duesey Coffee Mini Program which incorporates the website, products storefront, inventory, ordering systems and payment system. Developer shall ensure the app is technically compliant to WeChat's App guidelines, and VAL's business compliance. Being Developer of the project, Developer will be responsible and liable for the product's business compliance with WeChat Mini Program and Payment guidelines. Simple tabular representation of the Milestone's definition schedule as per the points mentioned above:

No Definition Timeline

1

Setup WeChat Official Account for Duesey Coffee App design and Architecture completed. Backend API partially done. Front end Apps Alpha release initiated. Sent for test/ review by VAL

6  w e e k s  u p o n  s i g n i n g  o f Agreement

2

WeChat Store Front and Backend development Social Medial and WeChat Moments Front and Backend development Backend API fully done. Front end Apps Alpha release completed. Sent for test/ review by VAL. Previously reported bugs fixed.

Week 7 - 13

3

Bugs or feedback escaped in Alpha release fixed. Front end Apps beta release completed. Sent for test/ review by VAL Live run of Duesey Coffee Apps in WeChat

Week 14 - 18

4

All Apps fully completed. Sent for test/ review by VAL. All bugs or feedback resolved and incorporated. Submission to the stores if all tests are passed.

Week 19 - 21

5 Bug Fixing Warranty Time. If any bug is reported then it will be resolved on priority. Week 22 - 23

6 Live and Handover Project to VAL Week 24

100 % Completed

CHANGE ORDERS Definition of Change Order: Any change or modification in functionality or feature or UI of the App required by VAL which is beyond agreed functional requirements considered in this Agreement will be considered as a Change in the original specifications, and that shall be agree by Developer to VAL or vice versa as a Change Order in writing.

Page 3 of 7

6.6

· · · · · · ·

· · · · · · · · · · · · · ·

·

7.

Source: VGRAB COMMUNICATIONS INC., 10-K, 1/29/2020





Mobile Application Development Agreement Agreement No: VAL/MAD/PVTINV/DC/190305/1

Change Orders do not however cover any bug or glitch fixing produced out of the code written by Developer as any bug will be fixed by Developer for free up to 3 months after final delivery (Bug Fixing Warranty). SCOPE OF DELIVERABLES No. Deliverable Name Scope

1. Duesey Coffee WeChatFunctionality Development WeChat Mobile App functionality to be developed across both platforms, API development.

2. Functional requirements & UI/Multimedia, backend access. VAL will supply products, logo, pricing and final design approval, multimedia, CMS access.

3. Application package App package to be shared with the VAL for testing andreview.

4. WeChat Official Account upload Apps to be uploaded in WeChat for public viewing anddownloading. DEVELOPMENT TECHNOLOGIES & TARGET DEVICES AND OS The proposed technologies are as follows: iOS SDK, Android, app.json, PHP iPhone and iPad running OS versions 5 to 8; Android devices running 3.0 and above. ASSUMPTIONS AND DEPENDENCIES The development and unit testing of the products will be done online for actual live functionality. The Developer shall on own cost use its credentials of its WeChat Developer Account to develop this Project for VAL. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP All Intellectual Property during the project is owned by VAL, and will be turned over to VAL at the conclusion of the project by Developer and after the fulfillment of all commercial obligations by the VAL. All rights and title to Duesey Coffee Intellectual Property created pursuant to the Project shall belong to VAL and shall be subject to the terms and conditions of this Agreement.

Page 4 of 7

8.

9.

Development Technologies: Target Device and OS:

10. · ·

11. 11.1

11.2.

Source: VGRAB COMMUNICATIONS INC., 10-K, 1/29/2020





Mobile Application Development Agreement Agreement No: VAL/MAD/PVTINV/DC/190305/1

CONFIDENTIALITY Any information, data and/or contents of documents made available by a party hereto to the other for the purposes of this Agreement hereby contemplated shall not, without the prior written consent of such party, be disclosed to any person, firm or corporation (and to only such extent for) the implementation of the Agreement. Such information, data and/or contents of documents may be disclosed to officers, employees, auditors, solicitors and other professional advisors of this Agreement but only to the extent required in each instance for the implementation of the Agreement hereby contemplated. Each party hereto hereby undertakes with the other party hereto, and to the intent that such undertaking shall have full force and effect notwithstanding that such party shall cease to participate in the Agreement, that it will not, without the prior written consent of the other party hereto, divulge to any person, firm or corporation, any information on technical, economic, financial and marketing matters and any material, data and/or contents of documents received by such party hereto from the other party hereto relating to the Agreement except where (but only to the extent that) disclosure is required by law and will ensure that its employees and agents shall at all times observe this clause. TERMINATION VAL shall, in the event of Developer committing any breach of any of the terms and conditions of this agreement or for any other reason considered as sufficient, be entitled to terminate this agreement by giving two (2) weeks' notice in writing and it is applicable only when the project is not completed. If the customer terminates the agreement, then VAL shall compensate the Developer up to the date of termination with a fee calculated on Pro-rata basis. Developer may also terminate this Agreement by giving two (2) weeks' notice in writing to VAL. It is applicable only when the project is not completed. In case Developer terminates the agreement, it shall handover the entire project related IPR, work done till date to VAL. TERM OF AGREEMENT This Agreement commences on the date it is executed and shall continue until full performance by both parties, or until earlier terminated by one party under the terms of this Agreement. ENTIRE AGREEMENT AND GOVERNING LAW AND JURISDICTION This agreement supersedes all oral and written representations and agreements between the parties including, but not limited to any earlier agreement relating to the subject matter thereof. This agreement shall be construed, interpreted and governed by and in accordance with the laws of Hong Kong. In case the arbitration proceedings fail, an unresolved dispute between Developer and VAL is subject to the binding laws of Hong Kong as a first attempt at formal resolution. Should arbitration fail to reach a resolution and either party wish to pursue the dispute further, this shall be conducted within the binding laws of Hong Kong. LANGUAGE The English language shall be the medium used in all correspondence and legally binding tender.

Page 5 of 7

12. 12.1

12.2

13.

14.

15.

16.

Source: VGRAB COMMUNICATIONS INC., 10-K, 1/29/2020





Mobile Application Development Agreement Agreement No: VAL/MAD/PVTINV/DC/190305/1

NOTICE Any notice or other communication required or permitted to be given between the parties under this agreement shall be given in writing at the following address or such other addresses may be intimated from time to time:- For VAL Kind Attn: Mr. Charles Liong, CFO Located at Room E, 6th Floor, Eastern Commercial Center, 397 Hennessy Road, Hong Kong. For Developer Kind Attn: Ms. Chen Weijie, Coordinator/Lead Developer No 12-12-1, City Gardens Condo, Persiaran Raja Chulan, 50200 Kuala Lumpur, Malaysia ENTIRE AGREEMENT AND AMENDMENTS Save insofar as the terms herein contained are supplemented by the articles of association of the Cooperation, this Agreement represents the complete and entire understanding between the parties to the exclusion of all agreements to the contrary, whether oral or written, made prior to the date hereof. Any modification, amendment or alteration of this Agreement shall be made only with the written consent duty signed by all parties and shall be effective from the date of the revision or such other date as may be agreed upon between the parties. EFFECT OF HEADINGS The headings of the Clauses hereof have been inserted for convenience only and shall not affect the interpretation of the provisions of this Agreement. BINDING EFFECT This Agreement shall be binding on the successors in title and permitted assigns of the parties hereto.

Page 6 of 7

17.

18. 18.1

18.2

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20.

Source: VGRAB COMMUNICATIONS INC., 10-K, 1/29/2020





Mobile Application Development Agreement Agreement No: VAL/MAD/PVTINV/DC/190305/1

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written. Represented legally by For and on behalf of VGRAB ASIA LTD. Represented by: /s/ Liong Fook Weng Liong Fook Weng (Charles) Executive Director/Chief Financial Officer Represented legally by DEVELOPER /s/ Chen Weijie /s/ Zheng Qing Chen Weijie Zheng Qing Passport No: [REDACTED] Passport No: [REDACTED]

/s/ Gu Xianwin Gu Xianwin Passport No: [REDACTED]

Page 7 of 7

Source: VGRAB COMMUNICATIONS INC., 10-K, 1/29/2020 
Question: Highlight the parts (if any) of this contract related to Warranty Duration that should be reviewed by a lawyer. Details: What is the duration of any  warranty against defects or errors in technology, products, or services  provided under the contract?
answer:
Change Orders do not however cover any bug or glitch fixing produced out of the code written by Developer as any "bug" will be fixed by Developer for free up to 3 months after final delivery (Bug Fixing Warranty).


question:
SERVICES AGREEMENT CONQUER RISK MANAGED VOLATILITY FUND CONQUER RISK TACTICAL ROTATION FUND CONQUER RISK TACTICAL OPPORTUNITIES FUND CONQUER RISK DEFENSIVE BULL FUND

AGREEMENT dated as of June 24, 2020, between PFS Funds (the Trust), a Massachusetts business trust, and Potomac Fund Management, Inc. (the Adviser), a Florida Corporation.

WHEREAS, the Trust has been organized to operate as an open-end management investment company registered under the Investment Company Act of 1940 (the Act); and WHEREAS, the Trust has engaged the Adviser to act as investment adviser to the Conquer Risk Managed Volatility Fund, Conquer Risk Tactical Rotation Fund, Conquer Risk Tactical Opportunities Fund, and Conquer Risk Defensive Bull Fund (each a Fund), series of PFS Funds; and WHEREAS, the Trust wishes to retain the Adviser to perform certain additional services as hereinafter described on behalf of the Fund; and WHEREAS, the Adviser wishes to provide such services to the Fund under the conditions set forth below; NOW, THEREFORE, in consideration of the promises and mutual covenants contained in this Agreement, the Trust and the Adviser agree as follows:

1. Employment. The Trust, being duly authorized, hereby employs the Adviser to perform the services described in this Agreement. The Adviser shall perform such services upon the terms and conditions hereinafter set forth. Any services undertaken by the Adviser pursuant to this Agreement, as well as any other activities undertaken by the Adviser on behalf of the Trust pursuant hereto, shall at all times be subject to any directives of the Board of Trustees of the Trust.

2. Trust Administration. The Adviser shall give the Trust the benefit of its best judgment, efforts and facilities in rendering its services. The Adviser shall at all times conform to: (i) all applicable provisions of the Act and any rules and regulations adopted thereunder; (ii) the provisions of the Registration Statement of the Trust under the Securities Act of 1933 and the Act as amended from time to time; (iii) the provisions of the Agreement and Declaration of Trust and the By-Laws of the Trust; and (iv) any other applicable provisions of state and federal law.

Subject to the direction and control of the Trust, the Adviser shall supervise the Fund's business affairs. In addition, to the extent not otherwise provided by other parties under agreements with the Trust, the Adviser shall supply: (i) non-investment related statistical and research data; (ii) the services of a Chief Compliance Officer for the Trust with respect to the

1

Fund and (iii) executive and administrative services. The Adviser shall also assist with and/or supervise the preparation by the Trust's administrator, transfer agent, and/or auditors of: (i) tax returns; (ii) reports to shareholders of the Fund; (iii) reports to, and filings with, the Securities and Exchange Commission, state securities commissions and Blue Sky authorities including preliminary and definitive proxy materials and post-effective amendments to the Trust's registration statement; and (iv) necessary materials for meetings of the Trust's Board of Trustees. The Adviser shall provide personnel to serve as officers of the Trust if so elected by the Board of Trustees. Executive and administrative services include, but are not limited to, the coordination of all third parties furnishing services to the Fund, review of the books and records of the Fund maintained by such third parties, and the review and submission to the officers of the Fund for their approval, of invoices or other requests for payment of Fund expenses; and such other action with respect to the Fund as may be necessary in the opinion of the Adviser to perform its duties hereunder.

3. Allocation of Charges and Expenses. Except as set forth below, the Adviser will pay all operating expenses of each Fund specifically assumed by the Fund under the Management Agreement between the Trust and the Adviser dated June 24, 2020 (the Management Agreement), including without limitation the compensation and expenses of any employees of the Fund and of any other persons rendering any services to the Fund; clerical and shareholder service staff salaries; office space and other office expenses; fees and expenses incurred by the Fund in connection with membership in investment company organizations; legal, auditing and accounting expenses; expenses of registering shares under federal and state securities laws, including expenses incurred by the Fund in connection with the organization and initial registration of shares of the Fund; insurance expenses; fees and expenses of the custodian, transfer agent, dividend disbursing agent, shareholder service agent, plan agent, administrator (excluding fees and expenses payable to the Adviser under this Agreement and the Management Agreement), accounting and pricing services agent and underwriter of the Fund; expenses, including clerical expenses, of issue, sale, redemption or repurchase of shares of the Fund; the cost of preparing and distributing reports and notices to shareholders, the cost of printing or preparing prospectuses and statements of additional information for delivery to shareholders; the cost of printing or preparing stock certificates or any other documents, statements or reports to shareholders; expenses of shareholders' meetings and proxy solicitations; and all other operating expenses not specifically assumed by the Fund. For purposes of this Agreement, operating expenses shall not include advertising, promotion and other expenses incurred directly or indirectly in connection with the sale or distribution of the Fund's shares (including expenses that the Fund is authorized to pay pursuant to Rule 12b-1 under the Act, if any).

The Fund will pay all brokerage fees and commissions, taxes, borrowing costs (such as (a) interest and (b) dividend expenses on securities sold short), ADR fees, fees and expenses of acquired funds, extraordinary or non-recurring expenses as may arise, including litigation to which the Fund may be a party and indemnification of the Trust's Trustees and officers with respect thereto. The Fund also will pay the fees paid pursuant to the Management Agreement between the Adviser and the Trust, and all expenses which it is now or in the future may be authorized to pay pursuant to Rule 12b-1 under the Act. The Adviser may obtain reimbursement from the Fund, at such time or times as the Adviser may determine in its sole discretion, for any expenses advanced by the Adviser that the Fund is obligated to pay, and such reimbursement shall not be considered to

2

be part of the Adviser's compensation pursuant to this Agreement.





4. Record Keeping and Other Information. The Adviser shall create and maintain all necessary records in accordance with all applicable laws, rules and regulations, including, but not limited to, records required by Section 31(a) of the Act and the rules thereunder, as the same may be amended from time to time, pertaining to the various functions performed by it and not otherwise created and maintained by another party pursuant to contract with the Trust. Where applicable, such records shall be maintained by the Adviser for the periods and in the places required by Rule 31a-2 under the Act.

5. Audit, Inspection and Visitation. The Adviser shall make available to the Trust during regular business hours all records and other data created and maintained pursuant to the foregoing provisions of this Agreement for reasonable audit and inspection by the Trust or any regulatory agency having authority over the Trust.

6. Compensation. For the performance of the Adviser's obligations under this Agreement, including payment of certain expenses of each of the Funds pursuant to paragraph 3 hereof, each Fund shall pay the Adviser, on the first business day following the end of each month, a fee at an annual rate of 0.65% of a Fund's average daily net assets up to $25 million, 0.35% of a Fund's average daily net assets from $25 million to $100 million, and 0.25% of a Fund's average daily net assets for such assets in excess of $100 million.

The average value of the daily net assets of a Fund shall be determined pursuant to the applicable provisions of the Agreement and Declaration of Trust or a resolution of the Board of Trustees, if required. If, pursuant to such provisions, the determination of net asset value of a Fund is suspended for any particular business day, then for the purposes of this paragraph, the value of the net assets of a Fund as last determined shall be deemed to be the value of the net assets as of the close of the business day, or as of such other time as the value of the Fund's net assets may lawfully be determined, on that day. If the determination of the net asset value of a Fund has been suspended for a period including such month, the Adviser's compensation payable at the end of such month shall be computed on the basis of the value of the net assets of the Fund as last determined (whether during or prior to such month).

7. Limitation of Liability. The Adviser may rely on information reasonably believed by it to be accurate and reliable. Except as may otherwise be required by the Act or the rules thereunder, neither the Adviser nor its directors, officers, employees, shareholders, agents, control persons or affiliates of any thereof (collectively, the Adviser Employees) shall be subject to any liability for, or any damages, expenses or losses incurred by the Trust in connection with any error of judgment, mistake of law, any act or omission in connection with or arising out of any services rendered under or payments made pursuant to this Agreement or any other matter to which this Agreement relates, except by reason of willful misfeasance, bad faith or gross negligence on the part of any such persons in the performance of the duties of the Adviser under this Agreement or by reason of reckless disregard by any of such persons of the obligations and duties of the Adviser under this Agreement. Any person, even though also a director, officer, employee, shareholder or agent of the Adviser, who may be or become a trustee, officer, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or

3

acting on any business of the Trust (other than services or business in connection with the Adviser's duties hereunder), to be rendering such services to or acting solely for the Trust and not as a director, officer, employee, shareholder or agent, or one under the control or direction of the Adviser, even though paid by it. The Adviser is responsible for any information that it provides to the Trust for inclusion in the prospectus and/or statement of additional information of the Fund. The Adviser agrees to defend and indemnify the Trust, and its trustees, officers and agent from and against any and all liability, losses, claims and damages arising from any inaccurate or incomplete statement provided by the Adviser (or its officers, employees, directors and agents) for inclusion in the Fund's prospectus or statement of additional information. The Adviser agrees to defend and indemnify the Trust, and its trustees, officers and agents from and against any and all liability, losses, claims and damages arising from your willful misfeasance, bad faith or gross negligence on the Adviser's part or the part of the Adviser's officers, employees, directors and agents in the performance of the Adviser's duties under this Agreement, or by reason of reckless disregard by any of such persons of the Adviser's obligations and duties under this Agreement.

8. Services for Others. Nothing in this Agreement shall prevent the Adviser or any affiliated person of the Adviser from providing services for any other person, firm or corporation, including other investment companies; provided, however, that the Adviser expressly represents that it will undertake no activities which, in its judgment, will adversely affect the performance of its obligations to the Trust under this Agreement.

9. Renewal and Termination. The term of this Services Agreement shall begin on the date of execution and shall continue in effect for a period of two years. This Services Agreement shall continue in effect from year to year thereafter, subject to termination as hereinafter provided, if such continuance is approved at least annually by vote of a majority of the Trustees who are not interested persons of the Trust or the Adviser. This Agreement may be terminated without the payment of any penalty by either party upon sixty (60) days' written notice to the other party. Upon the termination of this Agreement, the Trust shall pay the Adviser such compensation as may be payable for the period prior to the effective date of such termination. This Agreement shall automatically terminate in the event the Management Agreement is assigned or otherwise terminated.

10. The Trust. The term PFS Funds means and refers to the Trustees from time to time serving under the Trust's Agreement and Declaration of Trust as the same may subsequently thereto have been, or subsequently hereto may be, amended. It is expressly agreed that the obligations of the Trust hereunder shall not be binding upon any of the Trustees, officers, employees, agents or nominees of the Trust, or any shareholders of any series of the Trust, personally, but bind only the trust property of the Trust (and only the property of the Fund). The execution and delivery of this Agreement have been authorized by the Trustees of the Trust and signed by an officer of the Trust, acting as such, and neither such authorization by such Trustees nor such execution and delivery by such officer shall be deemed to have been made by any of them individually or to impose any liability on any of them personally, but shall bind only the trust property of the Trust (and only the property of the Fund) as provided in its Agreement and Declaration of Trust. A copy of the Agreement and Declaration of Trust is on file with the Secretary of State of Massachusetts.

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11. Miscellaneous. Each party agrees to perform such further acts and execute such further documents as are necessary to effectuate





the purposes hereof. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Massachusetts. This Agreement may be amended at any time by written instrument executed by each of the parties hereto. The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or effect.

IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the day and year first above written.

PFS Funds By: /s/ Jeffrey R. Provence Print Name: Jeffrey R. Provence Title: Trustee, Secretary and Treasurer Potomac Fund Management, Inc. By: /s/ Manish Khatta Print Name: Manish Khatta Title: President

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Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
answer:
Except as may otherwise be required by the Act or the rules thereunder, neither the Adviser nor its directors, officers, employees, shareholders, agents, control persons or affiliates of any thereof (collectively, the "Adviser Employees") shall be subject to any liability for, or any damages, expenses or losses incurred by the Trust in connection with any error of judgment, mistake of law, any act or omission in connection with or arising out of any services rendered under or payments made pursuant to this Agreement or any other matter to which this Agreement relates, except by reason of willful misfeasance, bad faith or gross negligence on the part of any such persons in the performance of the duties of the Adviser under this Agreement or by reason of reckless disregard by any of such persons of the obligations and duties of the Adviser under this Agreement. Any person, even though also a director, officer, employee, shareholder or agent of the Adviser, who may be or become a trustee, officer, employee or agent of the Trust, shall be deemed, when rendering services to the Trust or


question:
Exhibit 10.3

                                                                       EXHIBIT C

                        SUPPORT AND MAINTENANCE AGREEMENT

      SUPPORT AND MAINTENANCE AGREEMENT dated as of April __, 2005 (the Effective Date), between On2 Technologies, Inc., a Delaware corporation (On2), and Wildform, Inc., a California corporation (Wildform). Capitalized terms used herein and not defined herein shall have the meanings given to them in Asset Purchase Agreement (as defined below).

                                   WITNESSETH:

      WHEREAS, On2 and Wildform have entered into an Asset Purchase And Software License Agreement dated as of April 4, 2005 (the Asset Purchase Agreement) pursuant to which, among other matters, Wildform has agreed to sell and license certain assets to On2; and

      WHEREAS, in connection with the Asset Purchase Agreement, On2 desires for Wildform to provide certain services to On2, and Wildform wishes to perform such services in accordance herewith.

      NOW, THEREFORE, subject to the terms, conditions, covenants and provisions of this Agreement, each of On2 and Wildform mutually covenant and agree as follows:

                                    ARTICLE I

                                   DEFINITIONS

      For purposes hereof, each of the following terms shall have the respective meaning set forth below, whether employed in the singular or plural, unless the particular context in which a term is used clearly indicates otherwise:

      1.1 Closing Date Payment Amount shall have the meaning set forth in the Asset Purchase Agreement.

      1.2 Common Stock means the common stock of On2, par value $0.01.

      1.3 Confidential Information means any and all information disclosed by one Party (the Disclosing Party) to the other Party (the Receiving Party), in any manner, prior to the Effective Date and thereafter during the Term. Confidential Information may include, but is not limited to, the following types of information and other information of a similar nature, in any form or medium, in any way perceived: trade secrets, software licensed on an evaluation basis hereunder (whether source code, executable code or otherwise), source code, inventions, art, drawings, schematics, files, file data, documentation, diagrams, specifications, know how, processes, formulas, flow charts, product criteria, research and development records, procedures, test results and samples, marketing techniques and materials, marketing and development plans, pricing data, price lists, business plans, information relating to customer identities, supplier or other source identities, and financial information.

Confidential Information of a Disclosing Party may also include any information described above, whether or not owned or developed by it, and any such information Disclosing Party is obligated to keep confidential by way of a written agreement with a third party. Notwithstanding the foregoing, Confidential Information shall not include any of the foregoing that (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party, (ii) is rightfully in the possession of Receiving Party prior to disclosure by Disclosing Party, (iii) is received by Receiving Party from a third party having the right to make such disclosure and not under a confidentiality obligation to the Disclosing Party, or (iv) is independently developed by the Receiving Party without reference to or use of any Confidential Information of the Disclosing Party.

      1.4 Deliverable means each item to be delivered by Wildform in accordance with Exhibit B hereto.

      1.5 Development Work means the customization and integration of the Flix Software to be performed by Wildform and described on Exhibit B hereto

      1.6 Exchange Act means the Securities and Exchange Act of 1934, as amended.

      1.7 Flix Software means the following software in source code and object code form: Flix Pro 4 for Windows, Flix Pro 4 for Windows Demo, Flix Pro 3 for Mac, Flix Pro 3 for Mac Demo, Flix Engine 3.5 for Windows, Flix Engine 3.5 for Windows Demo, Flix Exporter 4 for Windows (including Flix FLV player) Flix Exporter 4 for Windows Demo (including Flix FLV player), Flix Exporter 4 for Mac (including Flix FLV player), Flix Exporter 4 for Mac Demo (including Flix FLV player), Flix Lite 3 for Windows, Flix Lite 3 for Windows Demo, Flix Lite 3 for Mac, Flix Lite 3 for Mac Demo.

      1.8 Incorporated Technology means any technology or materials (including software source code) provided by On2 to Wildform in order for Wildform to perform the Development Work.

      1.9 Intellectual Property Rights means all intellectual property rights arising under statutory or common law or any other legal system in the world, including that which is acquired or obtained under a contract with a third





party, and whether or not perfected, comprising any of the following: (i) copyrights, copyright registrations, mask works and mask work registrations; (ii) rights relating to the protection of trade secrets and confidential information; (iii) patents, patent applications, reissue patents and reissue applications, continuation and continuation in part applications, invention registrations, petty patents; (iv) trademarks, service marks, trade names, trade dress, domain names, and registrations for the foregoing, of all kinds and types; (v) any right analogous to those set forth in this definition in foreign jurisdictions; and (vi) any renewals or extensions of the foregoing (as and to the extent applicable) now existing, or hereafter filed, issued or acquired.

      1.10 Incorporated Technology Works shall mean all inventions, intellectual property, works, derivative works, innovations, or other developments made or developed by Wildform solely as a result of and in relation to the incorporation of the Incorporated Technology to the Flix Software, and explicitly excluding the Licensed Assets.

      1.11 Nonconformance Notice shall have the meaning set forth in Section 3.1 hereof.

      1.12 Payment Shares means Two Hundred Eighty Thousand shares of Common Stock, subject to adjustment from time to time in connection with any stock split, reverse stock split, stock dividend or other similar change in On2's capitalization.

      1.13 Program Errors means any defect in the Flix Software that 1) results in the loss or corruption of data on a user's system, 2) causes the Flix Software to become unstable, 3) eliminates the user's ability to perform intended functions in the Flix Software, or 4) causes the operating system or any other programs to become unstable or cease to function. The defect must be caused by the Flix Software in the form provided by Wildform as a Deliverable.

      1.14 Specifications shall mean the Flix Software customizations and integrations described on Exhibit B.

      1.15 Term shall have the meaning set forth in Section 9.1 hereof.

                                   ARTICLE II

                          TRANSITION SERVICES PROVIDED

      2.1 Transition Services. Upon the terms and subject to the conditions set forth in this Agreement, with respect to each of those services set forth on Exhibit A hereto, which Exhibit is made a part of this Agreement, Wildform will provide to On2 the services indicated on such Exhibit (the Transition Services) during the time period for each such Transition Service set forth in such Exhibit (hereinafter referred to as the Time Periods for all of the Transition Services, and the Time Period for each Transition Service).

      2.2 Personnel. In providing the Transition Services, Wildform, as it deems necessary or appropriate in its sole discretion, may (i) use its personnel, and (ii) employ the services of third parties to the extent such third party services are reasonably necessary for the efficient performance of any of such Transition Services, provided, however that the marketing and PR services set forth on Exhibit A shall be supervised by Colby Devitt or Jonathan Blank.

      2.3 Representatives. Each of On2 and Wildform shall appoint a representative to act as its primary contact person for the provision of all of the Transition Services (collectively, the Primary Coordinators). The initial Primary Coordinators shall be Chris Schapdick for On2 and Jonathan Blank for Wildform. Each party may treat an act of a Primary Coordinator of another party as being authorized by such other party without inquiring behind such act or ascertaining whether such Primary Coordinator had authority to so act. Wildform and On2 shall advise each other in writing of any change in the Primary Coordinators, setting forth the name of the Primary Coordinator to be replaced and the name of the replacement, and certifying that the replacement Primary Coordinator is authorized to act for such party in all matters relating to this Agreement. Each of On2 and Wildform agree that all communications relating to the provision of the Transition Services shall be directed to the Primary Coordinators.

      2.4 Level of Transition Services. Wildform shall perform the Transition Services for which it is responsible hereunder following commonly accepted standards of care in the industry and exercising the same degree of care as it exercises in performing the same or similar services for its own business as of the date of this Agreement.

                                   ARTICLE III

                              SOFTWARE DELIVERABLES

      3.1 Deliverables. Subject to payment by On2 of the Closing Date Payment Amount in accordance with the Asset Purchase Agreement, Wildform shall deliver each Deliverable in accordance with the timeframe (the Timeframe) set forth in Exhibit B, which Exhibit is made a part of this Agreement. On2 will use commercially reasonable efforts to cooperate with Wildform as necessary in completing the Development Work and delivery of the Deliverables. Upon receipt of each Deliverable, On2 shall have a period of thirty (30) working days within which to inspect such Deliverable based upon the relevant Specification (an Acceptance Period). Should On2 find that any Deliverable does not substantially conform to the relevant Specification, On2 shall promptly so notify Wildform in writing, which notice shall provide sufficiently detailed





explanation of the non-conformities so as to allow Wildform to reproduce them (any such notice is referred to herein as a Nonconformance Notice). Each of the Deliverables shall be deemed accepted by On2 unless On2 delivers to Wildform a Nonconformance Notice within thirty (30) business days of the delivery of such Deliverable. In the event that Wildform receives such Nonconformance Notice from On2, Wildform shall make commercially reasonable efforts to modify such Deliverable and re-deliver it to On2 after any such modification is completed. Each Deliverable shall be deemed to have been accepted by On2 when either (i) On2 notifies Wildform in writing of its acceptance of such Deliverables or (ii) On2 does not deliver a Nonconformance Notice to Wildform within the Acceptance Period. Notwithstanding anything herein to the contrary, On2 shall not unreasonably withhold acceptance of any Deliverable.

      3.2 Program Errors. During the Term, Wildform shall resolve Program Errors in the manner provided in Exhibit A.

                                   ARTICLE IV

                                  COMPENSATION

      As consideration for the services to be provided by Wildform hereunder, On2 will pay Wildform a total of (i) $160,000 payable as follows: (a) $22,500 per month for each of the four (4) months following the Effective Date and $10,000 per month for each of the fifth and sixth months following the Effective Date with the first payment being payable 30 days from the Effective Date, and each subsequent payment payable within thirty (30) days of the preceding payment and (b) $50,000 upon On2's acceptance of the Deliverables pursuant to Section 3.1 hereof; and (ii) the Payment Shares, issuable upon the 12-month anniversary of the Effective Date. The foregoing notwithstanding, the payment provided for in this Article IV is not intended to constitute consideration for the Purchased Assets and Licensed Assets, payment for the license of which is provided for in the Asset Purchase Agreement.

                                    ARTICLE V

                                 CONFIDENTIALITY

      5.1 Use of Confidential Information. The Receiving Party represents and warrants to the Disclosing Party that:

            5.1.1 it will keep and maintain all Confidential Information of the Disclosing Party in strict confidence, using such degree of care as is appropriate to avoid unauthorized use or disclosure;

            5.1.2 it will not, directly or indirectly, disclose any Confidential Information to any third party, except as contemplated by this Agreement or with the Disclosing Party's prior written consent;

            5.1.3 it will not make use of any Confidential Information for its own purposes, such as creation of a competitive product; or for the benefit of anyone or any entity other than as contemplated by this Agreement;

            5.1.4 upon the Disclosing Party's written request, at the earlier of the end of the Term, or receipt of notice from the Disclosing Party of a breach by it of this Agreement or an Annex, the Receiving Party will deliver promptly to the Disclosing Party or, at the Receiving Party's option, will destroy all memoranda, notes, records, reports, media and other documents and materials (and all copies thereof) regarding or including any Confidential Information which the Receiving Party may then possess or have under its control; and

            5.1.5 it will take no action with respect to the Confidential Information that is inconsistent with its confidential and proprietary nature.

      5.2 Exceptions to Non-Disclosure Obligations. Notwithstanding the foregoing, the Receiving Party shall be permitted to disclose Confidential Information without any violation of this Agreement if such disclosure is required by law, but in such event the Receiving Party shall notify the Disclosing Party in writing in advance of such disclosure, and provide the Disclosing Party with copies of any related information so that the Disclosing Party may take appropriate action to protect its Confidential Information. The Receiving Party acknowledges that the disclosure of Confidential Information of the Disclosing Party may cause irreparable injury to the Disclosing Party and damages that may be difficult to ascertain. The Disclosing Party shall, therefore, be entitled to injunctive relief upon a disclosure or threatened disclosure of any Confidential Information of the Disclosing Party in violation of this Agreement, in addition to such other remedies as may be available at law or in equity. Without limitation of the foregoing, the Receiving Party shall promptly advise the Disclosing Party in the event that the Receiving Party learns or has reason to believe that any person or entity that has had access to Confidential Information of the Disclosing Party through the Receiving Party has violated or intends to violate the terms of this Agreement.

      5.3 Receiving Party's Duty of Care. Receiving Party shall protect the Confidential Information from unauthorized use or disclosure by exercising the same degree of care that Receiving Party uses with respect to information of its own of a similar nature, but in no event less than reasonable care, until five (5) years from the later of the Effective Date or the date of receipt of such Confidential Information. Notwithstanding the prior sentence, with respect to Receiving Party's employees, Receiving Party shall only disclose Confidential Information to a Receiving Party employee who has a need to know such Confidential Information for purposes of this Agreement or any customer sublicense and is informed of the confidential nature of the Confidential Information. The foregoing notwithstanding, each Party shall be liable for any failure by such Party's employees, agents or representatives to comply with the





provisions of this Section 5 as fully as if such employees, agents or representatives were a party to this Agreement.

                                   ARTICLE VI

                                   WARRANTIES

      6.1 On2 Warranties. On2 makes the following representations and warranties to Wildform.

      (a)   Authorization; Power and Authority. On2 (i) is a corporation duly             organized under the laws of the state of Delaware, and (ii) has the             requisite corporate power and corporate authority to enter into and             perform its obligations under this Agreement.

      (b)   Exchange Act Reporting. On2 has filed in a timely manner all             documents that it was required to file under the Exchange Act,             during the twelve (12) months preceding the date of this Agreement.

      (c)   Payment Shares. The Payment Shares to be issued by On2 to Wildform             hereunder: (i) are duly authorized; and (ii) when issued and             exchanged pursuant to the terms of this Agreement, will be validly             issued, fully paid, non-assessable and not subject to preemptive             rights; and (iii) when issued and exchanged pursuant to the terms of             this Agreement, shall have been approved for listing on the American             Stock Exchange (or such other trading market or exchange on which             the Common Stock is listed or quoted for trading on the date in             question).

      6.2 Wildform Warranties. Wildform makes the following representations and warranties to On2.

      (a)   Authorization; Power and Authority. Wildform (i) is a corporation             duly organized under the laws of the State of California, (ii) has             the requisite corporate power and corporate authority to enter into             and perform its obligations under this Agreement, and (iii) to the             best of Wildform's knowledge as of the Effective Date, the             Deliverables marked as Deliverable #2 will not infringe any             Intellectual Property Rights held by any third party.

      (b)   Investment Representation. Wildform acknowledges that it is aware             that the Payment Shares have not been registered under the Act.             Wildform represents and warrants to the Buyer that such Wildform is             acquiring the Payment Shares for investment purposes and not with a             view to or for sale in connection with any distribution thereof or             with any present intention of selling the Payment Shares in             connection with a distribution. Wildform has the capacity to protect             its own interest, can bear the economic risk of its investment, and             has such knowledge and experience in financial or business matters             that it is capable of evaluating the merits and risks of the             investment in the Payment Shares. Wildform acknowledges that an             investment in the Payment Shares represents a high degree of risk

            and that there is no assurance that Buyer's business or operations             will be successful. Wildform has considered carefully the risks             attendant to an investment in the Payment Shares and acknowledges             that, as a consequence of such risks, such Wildform could lose its             entire investment in the Payment Shares. Wildform acknowledges that,             at a reasonable time prior to the Effective Date, Buyer furnished to             it the information specified in paragraph (b)2(ii)(A) or (B) of, and             in either event the information specified in paragraph (b)(2)(ii)(C)             of, Rule 502 promulgated under Exchange Act.

      (c)   Restricted Securities. Wildform understands that the Payment Shares             will be restricted securities under applicable federal securities             laws and the rules of the Securities and Exchange Commission             promulgated thereunder. Wildform acknowledges that it may dispose of             the Payment Shares only pursuant to an effective registration             statement under the Act or an exception from registration if             available. Wildform further understands that, except as provided in             the Registration Rights Agreement (as defined below), Buyer has no             obligation to register the sale of the Payment Shares or take any             other action so as to permit sales pursuant to the Act. Wildform             further understands that applicable state securities laws may impose             additional constraints upon the sale of securities

      6.3 No Warranty. EXCEPT AS PROVIDED IN SUBSECTIONS 6.1 AND 6.2 ABOVE, THE DELIVERABLES AND INCORPORATED TECHNOLOGY ARE PROVIDED AS-IS WITHOUT WARRANTY OF ANY KIND AND BOTH PARTIES EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE DELIVERABLES AND INCORPORATED TECHNOLOGY ARE BEING PROVIDED WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS OR ADEQUACY FOR ANY PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS, CAPACITY, OR THAT THE OPERATION OF THE DELIVERABLES OR INCORPORTED TECHNOLOGY WILL BE ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A PARTY, ITS DIRECTORS, OFFICERS, EMPLOYEES, LICENSORS, SUPPLIERS, AGENTS, OR TO ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, LICENSING, SUBLICENSING, SUPPLY OR DELIVERY OF THE DELIVERABLES OR INCORPORATED TECHNOLOGY WILL CREATE A REPRESENTATION, CONDITION, OR WARRANTY AND NEITHER PARTY MAY NOT RELY ON SUCH INFORMATION OR ADVICE.





                                   ARTICLE VII

                          INTELLECTUAL PROPERTY RIGHTS

      7.1 The Incorporated Technology Works shall be the sole property of On2, and all right, title and interest therein shall vest solely in On2 and shall be deemed to be a work made for hire. To the extent that title to any of the Incorporated Technology Works may not, by operation of law, vest in On2 or such works may not be considered works made for hire, Wildform hereby irrevocably assigns to On2 all rights, title and interest in and to such works. All Incorporated Technology Works shall belong exclusively to On2, which shall have the right to obtain and to hold in its own name, copyrights, registrations, patents, or such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof. Wildform agrees to give On2 and any person designated by On2 such reasonable assistance, at On2's expense, as is On2 reasonably deems appropriate to perfect, secure, and protect On2's intellectual property and other rights set forth in this paragraph. Notwithstanding the foregoing, Wildform shall retain its existing right, title and interest in and to the Licensed Assets, subject to On2's rights to use such intellectual property pursuant to the Asset Purchase Agreement.

      7.2 On2 Intellectual Property. Wildform acknowledges that On2 retains all right, title, and interest in and to the Incorporated Technology and the Incorporated Technologies Works, and in all copies&sbsp;thereof, and no title to the Incorporated Technology or other rights therein are transferred to Wildform by virtue of this Agreement other than as explicitly stated herein or reasonably necessary to accomplish the purposes hereof. 7.3 Wildform Intellectual Property. Except for Purchased Assets (as defined in the Asset Purchase Agreement) and Incorporated Technology Works and subject to On2's license rights to the Licensed Assets, Wildform shall retain all right, title and interest in and to the Deliverables, excluding the Incorporated Technology.

      7.4 Restrictions. Wildform agrees not to cause or permit the porting, reverse engineering, reverse assembly or reverse compilation of any object code software provided to Wildform by On2 pursuant to this Agreement.

                                  ARTICLE VIII

                                 INDEMNIFICATION

      8.1 On2's Indemnification of Wildform. On2 agrees to defend, indemnify and hold harmless Wildform, its officers, directors, employees, agents and customers from and against any claim, action, damage or costs (including reasonable attorneys fees) based on any breach by On2 of Sections 5, 6 or 7 of this Agreement provided that: (i) On2 is promptly notified in writing of such claim or action, (ii) Wildform grants On2 sole control of the defense and any related settlement negotiations, and (iii) Wildform reasonably cooperates with On2 in defense of such claim.

      8.2 Wildform's Indemnification of On2. Wildform agrees to defend, indemnify and hold harmless On2 from and against any claim, action, damage or costs (including reasonable attorneys fees) (other than an action or claim which is subject to On2's indemnification of Wildform pursuant to Section 8.1 above) based on any breach by Wildform of Sections 5, 6 or 7 of this Agreement, provided that: (i) Wildform is promptly notified in writing of such claim or action, (ii) On2 grants Wildform sole control of the defense and any related settlement negotiations, and (iii) On2 reasonably cooperates with Wildform in defense of such claim.

                                   ARTICLE IX

                              TERM AND TERMINATION

      9.1 Term. Except as otherwise set forth in Sections 9.2 and 9.3 or Exhibit A hereof, the term of this Agreement shall be eighteen (18) months (Term).

      9.2 Termination. Either of Wildform or On2 may terminate this Agreement if the other Party is in material breach of this Agreement and fails to cure such breach within thirty (30) days after written notice. Either of On2 or Wildform may terminate this Agreement if the other Party becomes bankrupt or a receiver is appointed for a substantial part of its assets or business, or any order is made approving a petition or answer seeking reorganization under any applicable bankruptcy law.

      9.3 Events Upon Termination. Upon the termination of this Agreement by either Party on account of an uncured material breach by the other Party, without prejudice to any other rights that either Party may have, the following will occur:

(a) Wildform will immediately cease all use and distribution of the Incorporated Technology.

(b) Wildform will immediately return to On2, or destroy, all copies of the Incorporated Technology, and all documentation created under this agreement in its possession or control. Upon written request from On2, Wildform will promptly provide On2 with a written certification of Wildform's compliance with the foregoing.

      9.4 Sections which Survive Termination or Expiration of this Agreement. Articles 1, 4 (with respect to outstanding payments), 5, 6, 7, 8, 9 and 10 of this Agreement, any other provisions of this Agreement incorporated into or applicable to such Sections, and any other provisions of this Agreement that by their terms extend beyond any termination of this Agreement, shall survive any





termination or expiration hereof for any reason.

                                    ARTICLE X

                                OTHER PROVISIONS

      10.1 Status of Parties. Nothing contained in this Agreement nor performance hereunder shall render either Party, its employees or contractors to be an agent, employee, joint venturer or partner of the other Party. Neither Party, nor any of its officers or employees shall have authority to contract for or bind the other Party in any manner, and each Party agrees that it shall not represent itself as an agent of the other Party or as otherwise authorized to act for or on behalf of the other Party.

      10.2 Force Majeure. Any failure by either Party to perform, to the extent and only for so long as such Party is prevented from performing for one or more of the reasons described herein, any obligation hereunder arising under or in connection with this Agreement shall be excused (to such extent and for such period) if such failure shall have been caused by any act or circumstance beyond the reasonable control of such Party, including, but without limiting the

generality of the foregoing, any Act of God, fire, flood, explosion, lightning, windstorm, earthquake, general shortage of materials, general discontinuation of power supply, court order or governmental interference, civil commotion, riot, war, strike, labor disturbances, transportation difficulties or labor shortages.

      10.3 Notice. All notice and other communications required or permitted to be given under this Agreement must be in writing and will be effective when delivered personally, via overnight courier, or sent by facsimile later confirmed by overnight courier, or sent by registered mail, postage prepaid and addressed to the parties at their respective addresses set forth in the first paragraph of this Agreement, or at any new address or addresses subsequently designated in writing by either party to the other.

      10.5 Severability of Agreement Provisions. It is the desire and intent of the parties that the provisions contained in this Agreement shall be enforceable to the fullest extent permitted by law. The invalidity and/or unenforceability in whole or in part of any provision of this Agreement shall not render invalid or unenforceable any other provision of this Agreement, which instead will remain in full force and effect.

      10.6 Entire Agreement. This Agreement constitutes the entire understanding between the parties regarding to specific subject matter covered herein. This Agreement supersedes any and all prior written or verbal contracts or understandings between the parties hereto and neither party shall be bound by any statements or representations made by either party not embodied in this Agreement. No provisions herein contained shall be waived, modified or altered, except by an instrument in writing, duly executed by the parties hereto.

      10.7 Governing Law; Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule whether such provision or rule is that of the State of New York or any other jurisdiction.

      10.8 Dispute Resolution. Disputes arising in connection with this Agreement shall be resolved as follows:

      (a) General Intent. The parties intend that all problems and disputes relating to this Agreement or arising from the transactions contemplated hereby (Disputes) shall be resolved through the procedures of this Section 10.8; provided, however, that neither party shall be under any obligation to proceed in accordance with this Section 10.8 with respect to Disputes concerning any alleged breach of Article V of this Agreement, as to which a party may take any legal action in a court of law or equity (without the necessity of posting any bond) to assert or enforce a claim that it has against the other party under this Agreement. The procedures in this Section 10.8 shall not replace or supersede any other remedy to which a party is entitled under this Agreement or under applicable law.

      (b) Informal Resolution Efforts. The parties shall initially attempt to resolve Disputes through informal negotiations conducted by the Primary Coordinator of Wildform and Primary Coordinator of On2.

      (c) Mediation. If a Dispute cannot be resolved under Subsection 10.8(b) above, the Dispute shall be submitted to mediation by written notice of the party seeking mediation to the other party. In the mediation process, the parties shall attempt in good faith to resolve their differences voluntarily with the aid of an impartial mediator, who will attempt to facilitate negotiations. The mediator shall be selected by agreement of the parties. If the parties cannot agree on a mediator, the American Arbitration Association or JAMS shall designate a mediator at the request of either party. Any mediator so designated must be acceptable to both parties. The mediation shall be confidential, and the mediator may not testify for either party in any later proceeding relating to the Dispute. Each party shall bear its own costs in the mediation. The fees and expenses of the mediator shall be shared equally by the parties.

      (d) Court Actions. If the parties cannot resolve a Dispute through mediation pursuant to Subsection 10.8(c) above, either party may seek further redress by taking legal action in a court of law or equity to assert or enforce a claim that it has against the other party under this Agreement. The parties agree that any legal action, suit or proceeding arising out of or relating to





this Agreement or the transactions contemplated hereby shall be instituted by a party in a Federal or state court sitting in the jurisdiction and venue of the other party, which shall be the exclusive jurisdiction and venue of said legal proceedings and each party hereto waives any objection which such party may now or hereafter have to the laying of venue of any such action, suit or proceeding, and irrevocably submits to the jurisdiction of any such court in any such action, suit or proceeding. Any and all service of process and any other notice in any such action, suit or proceeding shall be effective against such party (or the subsidiary of such party) when transmitted in accordance with Section 10.8. Nothing contained herein shall be deemed to affect the right of any party hereto to serve process in any manner permitted by law.

      10.9 No Implied Waivers. No delay or omission by either party to exercise its rights and remedies in connection with the breach or default of the other shall operate as or be construed as a waiver of such rights or remedies as to any subsequent breach.

      10.10 Counterparts. This Agreement may be executed in any number of counterparts, but all counterparts hereof shall together constitute but one agreement.

      10.11 Assignment. Neither party will have the right to assign, pledge or transfer all or any part of this Agreement without the prior written consent of the other, and any such purported assignment, pledge or transfer by a party without such prior written consent shall be void ab initio; provided, however, that either party may assign all or part of its rights and obligations under this Agreement in connection with a Change of Control (as defined in the Asset Purchase Agreement). In the event of an assignment pursuant to the proviso contained in the preceding sentence, the surviving entity shall be bound to this Agreement in place of such assigning party and this Agreement shall inure to the benefit of such surviving entity.

      10.12 Capacity. Each party represents one to the other that it is under no incapacity to enter into or perform this Agreement and that each person signing this Agreement on its behalf has the authority to do so, and each shall never otherwise assert.

      10.13 Captions, Gender and Number. The captions appearing in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope and intent of this Agreement or any of the provisions hereof.

      10.14 UN Convention Does Not Apply. The United Nations Convention on Contracts for the Sale of Goods shall not apply to this Agreement and any products and/or services provided pursuant thereto.

      IN WITNESS WHEREOF, the parties hereto have caused this Transition Services Agreement to be executed the Effective Date.

On2 Technologies, Inc                          Wildform, Inc.

By:                                            By:     ---------------------------------              ----------------------------- Name:                                          Name: Title:                                         Title:

                                    Exhibit A

                               Transition Services

1. Program Errors. On2 shall promptly report to Wildform any Program Errors accompanied by documentary evidence in a mutually agreeable form that permits the defect or error to be reproduced. During the first twelve (12) months of the Term, Wildform shall use commercially reasonable efforts to correct Program Errors within the response times set forth below. For purposes of the response times set forth below a Serious Program Error shall be defined as a Program Error that (a) causes the Deliverables to crash (malfunction), or (b) substantially degrades the performance, usability or appearance of the Deliverables. A Minor Program Error shall be defined as a bug that causes a less than substantial degradation in the performance, usability or appearance of the Deliverables.

Program Error        Response                           Correction -------------        --------                           ----------

Serious              Within 1 business day              Within 8 business days

Minor                Within 4 business days             Within 15 business days

Failure by Wildform to provide a correction for a Program Error within the specified period shall not be deemed a breach of this Agreement provided that Wildform has used commercially reasonable efforts to correct such Program Error.

Wildform shall not be required to provide corrections for defects in or conflicts with products developed by other companies, including On2, Macromedia and Microsoft provided that such defect or conflict cannot reasonably be corrected except through modification of the product of such other companies. If a Deliverable, including the Macromedia Flash Player that is shipped with the Deliverable, does not exhibit the Program Error, then no Program Error shall be deemed to exist.

2. Deliverable Support During the first twelve (12) months of the Term, Wildform





will provide On2 with reasonable technical support for the Deliverables via phone and email during Wildform's normal business hours with respect to the following:

      o     Train On2 personnel in the way the code works.

      o     Train On2 personnel in how the software is designed, maintained and             compiled.

      o     Provide ongoing support during the 12-month term for On2's further             development and integration.

The foregoing obligations of Wildform shall be limited to a maximum of forty (40) hours, or up to a maximum of two hundred twenty (220) emails, whichever accumulates first.

3. Customer Technical Support email During the first twelve (12) months of the Term, Wildform will provide On2 via email during Wildform's normal business hours reasonable technical support for customer technical support questions received by On2 as follows:

      o     During the first thirty (30) days of the Term, Wildform will             continue to respond to customer technical support email questions             via email. The foregoing support will be provided as follows: (i)             customer shall be directed to send technical support emails will be             sent to On2; (ii) On2 shall forward such emails to Wildform; (iii)             Wildform shall respond to On2 within 24 hours, except for holidays             and weekends; and (iv) On2 will, in turn, respond to the customer.

      o     For the remaining eleven (11) months of the Term, On2 may send             customer technical support inquiries via email to Wildform and             Wildform shall respond within 48 hours, except for holidays and             weekends.

      o     During the first twelve (12) months of the Term, Wildform agrees to             forward to On2 Flix related customer technical support emails             received by Wildform from customers who have purchased the software             from On2 after the Closing. Failure by Wildform to forward these             emails shall not be deemed to be a breach of this Agreement.

The foregoing obligations of Wildform, following the initial thirty (30) day period, shall be limited to a maximum of thirty (30) hours, or up to a maximum of two hundred (200) emails, whichever accumulates first.

4. Customer Pre-Purchase Inquiries During the first twelve (12) months of the Term, Wildform will provide On2 via email during Wildform's normal business hours reasonable technical support for customer pre-purchase inquiries received by On2, including the following:

      o     During the first thirty (30) days of the Term, Wildform will respond             to customer pre-purchase email inquiries. The foregoing support will             be provided as follows: (i) customer shall be directed to send             technical support emails will be sent to On2; (ii) On2 shall forward             such emails to Wildform; (iii) Wildform shall respond to On2 within             24 hours, except for holidays and weekends; and (iv) On2 will, in             turn, respond to the customer.

      o     For the remaining eleven (11) months of the Term, On2 may send             customer pre-purchase inquiries via email to Wildform and Wildform             shall respond within 48 hours, except for holidays and weekends.

The foregoing obligations of Wildform, following the initial 30 day period, shall be limited to a maximum of twenty (20) hours, or up to a maximum of one hundred twenty five (125) emails, whichever accumulates first.

5. PR & Marketing During the first twelve (12) months of the Term (except as expressly noted below), Wildform will provide On2, via phone and email during Wildform's normal business hours, reasonable marketing support for the following:

      i)    Guide the execution of the On2 Flash 8 Flix product launch:

            a.    Provide On2 with the press list for approximately 300 leading                   tech publications and press, as well as Flash and video                   evangelists and web sites to publish news of launch and/or do                   product reviews. On2 shall contact these people directly.

            b.    Assist On2 with doing follow up contact with press to ensure                   maximum press coverage, and issue review copies of software                   with Wildform's assistance.

            c.    Write first draft press releases for product releases. (All                   subsequent drafts shall be written by On2, with Wildform                   providing input as requested on subsequent drafts.)

            d.    Create digital banners, buttons and product screenshots (based                   on existing Flix artwork) announcing On2's next version of                   Flix for distribution to sites, and press that request them.                   Such digital banners shall be based on the existing artwork                   used by Wildform in the marketing of the Flix product line.                   Wildform shall not be responsible for creating any new logos,                   or other artwork requested by On2 which Wildform does not





                  already possess. Any additional expenses for additional logos                   or artwork shall be borne by On2.

      ii)   Wildform will provide the following marketing and promotion of the             new Flix products:

            a.    Within 10 business days of closing publish one (1) issue of                   the Wildform newsletter featuring the news of On2's purchase                   of Wildform's Flix assets and instructions to Wildform                   customers on how and where to buy the new On2 Flix products.                   On2 shall provide the text for these mailings up to 150 words,                   subject to Wildform's approval, not to be unreasonably                   withheld.

            b.    Announce in one (1) issue of the Wildform newsletter the                   launch of On2's next version of Flix with introductory upgrade                   offer to Wildform customers per approval of On2's marketing                   department. This issue will come out after the release of Flix                   5 with Flash 8 codec. On2 shall provide the text for these                   mailings up to 150 words, subject to Wildform's approval, not                   to be unreasonably withheld.

            c.    On2 Flix advertisement in 2 consecutive issues of Wildform's                   newsletter. On2 shall provide the text for these mailings up                   to 150 words, subject to Wildform's approval, not to be                   unreasonably withheld.

            d.    In addition to a.-c. above, two (2) dedicated On2 branded                   mailings during the 12 months following closing to Wildform                   Flix customers who have opted to receive email from Wildform.                   On2 shall provide the text for these mailings up to 150 words,                   subject to Wildform's approval, not to be unreasonably                   withheld.

            e.    In the event that Flash 8 is released later than 11 months                   following closing and the release of the On2 version of Flix                   is delayed as a result of this, Wildform will do the dedicated                   mailings and newsletter promotions after the 12 month period                   for no additional fee, provided that Wildform will have no                   obligation to do any mailings or promotions later than 18                   months following closing.

            f.    Wildform represents that as of April 1, 2005, its newsletter                   list consists of approximately seventy thousand (70,000)&bbsp;email                   addresses.

      ii)   Wildform will perform the following marketing services for On2:

            a.    Search Engine Optimization -Assist On2 personnel in optimizing                   the newly updated Flix product pages based on current                   keywords. - Assist On2 personnel with initial submission of                   new product pages to search engines.

            b.    Google AdWords sponsored links program

                  o     Delivery of sponsored links advertising data history for                         Flix, including keywords, and knowledge of how to best                         manage the paid links as well as providing the current                         most effective keywords for selling Flix via Google                         AdWords.

            c.    Bring On2 Marketing people up to speed on Internet marketing                   for Flix:

                  - How to best to attract traffic to the Flix web site.

                  - Strategies for up-selling to current Flix customers.

                  - How to optimize site for search engines

                  - How to manage sponsored links

                  - Strategies for online advertising and marketing

                  - How to market to Flix customers via a newsletter.

                  - How to run a newsletter.

It shall be On2's responsibility and On2 shall ensure that On2 has personnel capable of understanding and executing software marketing.

The foregoing obligations of Wildform shall be limited to a maximum of forty five (45) hours, or up to a maximum of three hundred (300) emails, whichever accumulates first.

6. Wildform will establish and maintain the following presence on www.wildform.com site (18-month Time Period):

a) During first 30 days following closing:

*     Conversion of www.wildform.com/flix, the Flix main page, to explain On2's       purchase of Flix, with links to On2's site (e.g. On2's main Flix       information page, and shopping cart) as well as explanation to current       Wildform Flix on how to download their license and get continued support.





*     Link to www.wildform.com/flix in the well of Wildform's front page no       smaller than 150x75 pixels

*     Link to www.wildform.com/flix in the product drop down menu of main       navigation bar.

*     Link to www.wildform.com/flix in the main product navigation menu

*     Link to www.wildform.com/flix on www.wildform.com/products

*     Link to www.wildform.com/flix on www.wildform.com/demos

      b) For first 90 days after closing:

*     Link to www.wildform.com/flix in the product drop down menu of main       navigation bar. Should Wildform cease to use drop-down menus this may be       removed without penalty provided that a link to the Flix product will be       included in the Wildform product navigation that replaces the old version.

*     Link to www.wildform.com/flix in the main product navigation menu. Should       Wildform cease to use main product navigation menus this may be removed       without penalty provided that a link to the Flix product page will be       included in the Wildform product navigation that replaces the old version.       .

*     Continued presence of www.wildform.com/flix, the Flix main page, to       explain&bbsp;On2's purchase of Flix, with links to On2's site (e.g. On2's main       Flix information page, and shopping cart).

      c) Months 4-12 after closing:

*     Link to www.wildform.com/flix in the product drop down menu of main       navigation bar. Should Wildform cease to use drop-down menus Wildform may       substitute a link to www.wildform.com/flix in the main product navigation       menu. Should Wildform cease to use main product navigation menus this may       be removed without penalty provided that a link to the Flix product page       will be included in the Wildform product navigation that replaces the old       version.

*     Continued presence of www.wildform.com/flix, the Flix main page, to       explain On2's purchase of Flix, with links to On2's site (e.g. On2's main       Flix information page, and shopping cart).

      d) Months 13-18:

*     Continued presence of www.wildform.com/flix, the Flix main page, to       explain On2's purchase of Flix, with links to On2's site (e.g. On2's main       Flix information page, and shopping cart).

7. Website front end

      a.    Wildform will deliver the following:

            -All  relevant Flix product web pages (approximately 25) and                   content, including product pages, sample videos and faq's                   (based on existing artwork).

            -All  Flix digital graphics including existing Flix sample videos,                   logos, banners, buttons, screenshots and other Flix-related                   artwork (based on existing artwork).

            -All  Wildform Flix tutorials (approximately 35) for On2's                   non-exclusive use. Should any tutorial author request that On2                   remove the tutorial from On2's website, On2 shall comply with                   such request.

            -All  of the following additional resource sections of Wildform's                   site: Wildform in advertising, Wildform in CDRoms, and                   Wildform in Email for On2's nonexclusive use.

      b.    Wildform will provide On2, via phone and email during Wildform's             normal business hours, reasonable support for the website front end             deliverables.

It shall be On2's responsibility and On2 shall ensure that On2 has personnel capable of understanding, supporting and maintaining websites and all website materials provided by Wildform.

8. Website Back End

      a.    Wildform will deliver the following pursuant to the Asset Purchase             Agreement, which shall govern On2's use of the following:

            -     shopping cart system and pages.

            -     affiliate system, which includes ability to add affiliates,                   and track affiliate sales.

            -     promotion code system that lets you create and track                   promotions.

            -     administrative system that handles:





                  o     software license generation

                  o     automated customer emails

            -     ecommerce transactions

            -     banned email address check

            -     credit card hash check

            -     Whois queries.

            -     Ability to generate free licenses of Flix

            -     Ability to search through all issued licenses

            -     Serial code generator

            -     Ability to issue invoices

            -     Ability to automatically email customers once they install a                   demo of Flix

            -     E-commerce fraud detection tips

            -     Email list of over 22,000 email addresses from free email                   providers and bad customers

Wildform shall deliver the website front end and website back end electronically. Ensuring that the website works with On2's own merchant account and databases shall be On2's responsibility and On2 shall ensure that On2 has personnel capable of handling this transition.

During the first twelve (12) months of the Term, Wildform will provide On2, via phone and email during Wildform's normal business hours, reasonable support for the website front end deliverables. The foregoing obligations of Wildform, shall be limited to a maximum of forty (40) hours, or up to a maximum of two hundred twenty (220) emails, whichever accumulates first.

Wildform shall deliver the deliverables listed in paragraphs 7 and 8 of this exhibit and shall provide reasonable support for On2's use of these deliverables. However, it is On2's responsibility to ensure that On2 has personnel capable of handling this transition with all requisite skillsets including C++ programming, Linux, PHP, MYSQL, HTML etc. It is not Wildform's responsibility to instruct On2 staff in the basic functioning of computer systems and languages, nor is it Wildform's responsibility to maintain the deliverables once they have been delivered, except as specifically set forth herein.

In the event that Flash 8 is released later than 11 months following closing and the release of the On2 version of Flix is delayed as a result of this On2 can elect to have Wildform perform whatever PR and marketing services cannot be performed until immediately prior to the launch of the On2 version of Flix (other than the above referenced marketing emails and reduced website presence that Wildform will provide at no additional cost) for a one-time cash payment of $100,000, provided, however that Wildform shall have no obligation to perform any services beyond the 18 month anniversary of the closing.

                                    Exhibit B

                                  Deliverables

A. Deliverable #1 (source code for each to be delivered electronically after the Closing Date, subject to payment of the Closing Payment.):

o     Flix Pro 4 for Windows:

o     Flix Pro 4 for Windows Demo:

o     Flix Pro 3 for Mac:

o     Flix Pro 3 for Mac Demo:

o     Flix Engine 3.5 for Windows:

o     Flix Engine 3.5 for Windows Demo:

o     Flix Exporter 4 for Windows (including Flix FLV player):

o     Flix Exporter 4 for Windows Demo (including Flix FLV player):

o     Flix Exporter 4 for Mac (including Flix FLV player):

o     Flix Exporter 4 for Mac Demo (including Flix FLV player):

o     Flix Lite 3 for Windows:

o     Flix Lite 3 for Windows Demo:

o     Flix Lite 3 for Mac:





o     Flix Lite 3 for Mac Demo:

o     Flix Pro Power Players

B. Deliverable #2 (source code for each to be delivered according to the following schedule (the start date shall be after On2 has delivered to Wildform the new Flash 8 video codec with the required Flash 8 player and player specification (the Flash 8 Materials). The Deliverables shall be provided to On2 in electronic form and in the order shown below.

     o     Flix Pro Power Players            Change branding from Wildform to On2.            Delivery within 10 days.

     o     Flix Pro 5 for Windows            Which shall be comprised of Flix Pro 4 for Windows with the On2            branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 30 days.

     o     Flix Pro 5 for Windows Demo            Which shall be comprised of Flix Pro 4 for Windows Demo with the On2            branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 30 days.

     o     Flix Engine 5 for Windows            Which shall be comprised of Flix Engine 3.5 for Windows with the On2            branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 60 days.

     o     Flix Engine 5 for Windows Demo            Which shall be comprised of Flix Engine 3.5 for Windows Demo with the            On2 branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 60 days.

     o     Flix Pro 5 for Mac            Which shall be comprised of Flix Pro 3 for Mac with the On2 branding            and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 90 days.

     o     Flix Pro 5 for Mac Demo            Which shall be comprised of Flix Pro 3 for Mac Demo with the On2            branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 90 days.

     o     Flix Exporter 5 for Windows (including Flix FLV player)            Which shall be comprised of Flix Exporter 4 for Windows with the On2            branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 90 days.

     o     Flix Exporter 5 for Windows Demo (including Flix FLV player)            Which shall be comprised of Flix Exporter 4 for Windows Demo with the            On2 branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 90 days.

     o     Flix Exporter 5 for Mac (including Flix FLV player)            Which shall be comprised of Flix Exporter 4 for Mac with the On2            branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 120 days.

     o     Flix Exporter 5 for Mac Demo (including Flix FLV player)            Which shall be comprised of Flix Exporter 4 for Mac Demo with the On2            branding and addition of the new On2 Flash 8 codec. Update help file.            Change branding from Wildform to On2.            Delivery within 120 days.

     o     Flix Lite 5 for Windows            Which shall be comprised of Flix Lite 3 for Windows with the On2            branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 120 days.

     o     Flix Lite 5 for Windows Demo            Which shall be comprised of Flix Lite 3 for Windows Demo with the On2





           branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 120 days.

     o     Flix Lite 5 for Mac            Which shall be comprised of Flix Lite 3 for Mac with the addition of            the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            Delivery within 150 days.

     o     Flix Lite 5 for Mac Demo            Which shall be comprised of Flix Lite 3 for Mac Demo with the On2            branding and addition of the new On2 Flash 8 codec.            Update help file.            Change branding from Wildform to On2.            . Delivery within 150 days.

Aside from the addition of the On2 Flash 8 codec, no other features shall be added to the above listed Deliverables.

Delayed delivery by Wildform of the above listed Deliverables shall not be considered a violation of this Agreement, provided that Wildform has worked in good faith to provide the Deliverables in a timely fashion, provided however,

that failure to deliver (a) the Flix Pro Windows Deliverables prior to the 91-day anniversary of delivery of the Flash 8 Materials to Wildform or (ii) all of the Deliverables prior to the 270-day anniversary of the delivery of the Flash 8 Materials to Wildform, shall be considered a violation of this Agreement..

It shall be On2's responsibility and On2 shall ensure that On2 has personnel capable of understanding, supporting and maintaining the software source code provided by Wildform pursuant to Deliverables #1 and #2. 
Question: Highlight the parts (if any) of this contract related to Ip Ownership Assignment that should be reviewed by a lawyer. Details: Does intellectual property created  by one party become the property of the counterparty, either per the terms of the contract or upon the occurrence of certain events?
answer:

The Incorporated Technology Works shall be the sole property of On2, and all right, title and interest therein shall vest solely in On2 and shall be deemed to be a work made for hire.