the Product, including flowcharts, source code, object code, program procedures and descriptions (including descriptions of the source code and build procedures for the object code), procedures for maintenance and modification, testing data and similar written material relating to the design, structure and implementation of the Product. The term "Documentation" does not include end user documentation or manuals. The Documentation shall be sufficient to enable a reasonably skilled and experienced programmer to understand the design, structure and implementation of the Product.

(b). Developer shall perform bench testing and employ sufficient quality assurance standards to assure that the final release of the Product conforms to the Specifications and shall adequately test the final release of the Product prior to delivery to XXXXX. XXXXX will test the final release of the Product to verify whether the Product conforms to the Functional Requirements and the Specifications.

(c). If the final release of the Specifications, Product or Documentation fail to meet any of the requirements in this Agreement, XXXXX shall notify Developer in writing, and Developer shall have an additional _________ calendar days (the "Correction Period") in which to correct or modify the Specifications, Product and Documentation to meet the requirements, and to resubmit the Specifications, Product and Documentation to XXXXX for testing. If the Specifications, Product or Documentation fail to meet the requirements at the end of the Correction Period, then at XXXXX's option, (1) the Correction Period may be extended as may be agreed by the parties, (2) XXXXX may terminate this Agreement, return the Specifications, Product and Documentation to Developer, and Developer will refund to XXXXX any consideration previously given to Developer for development pursuant to this Agreement or (3) XXXXX may supply, correct or complete the deliverable item and either deduct an amount equal to one and one-half (11/2) times XXXXX's fully-burdened costs (including without limitation direct internal labor and fringe benefits and any sums, including royalties, paid to third parties) from any payments due to Developer or receive a refund from Developer for such costs up to the total amount paid by XXXXX hereunder.

3. Payment and Taxes.

(a). In consideration of Developer's obligations under this Agreement, XXXXX will pay Developer a development fee of _________ in accordance with the schedule set forth in Exhibit B. All fees payable hereunder are for the development of custom software to the special order of XXXXX.

(b). Developer agrees to pay, and to indemnify and hold XXXXX harmless from, any sales, use, excise, import or export, value added or similar tax or duty not based on XXXXX's net income, as well as the collection or withholding thereof, including penalties and interest, and all government permit or license fees and all customs and similar fees levied upon the delivery of the Product, Documentation, and Specifications, and any costs associated with the collection of any of the foregoing items.

(c). All out-of-pocket expenses incurred by Developer shall be paid by Developer.

4. Warranty.

(a). Developer warrants that the Specifications will represent an acceptable implementation of the Functional Requirements. Developer warrants that for a period of twelve (12) months after XXXXX's first commercial shipment of the Product excluding shipments for beta testing, (the "Warranty Period"), the Product will perform in accordance with the Specifications. During the Warranty Period, Developer shall correct any failure of the Product to perform in accordance with the Specifications, as soon as possible, but in no event less than fifteen (15) calendar days after notice from XXXXX of any failure to perform in accordance with the Specifications. Furthermore, without additional charge Developer will (i) assist with the installation of the Product, new versions, updates, and corrections; (ii) assist XXXXX with the identification and resolution of problems with the Product, new versions, updates, and corrections; and (iii) develop, to the extent necessary, temporary fixes and work arounds for emergency difficulties. Developer will supply XXXXX with source code and object code for all bug fixes and error corrections and all revised Documentation required for the Product to conform to the Specifications and to meet the Functional

Requirements. In addition to the foregoing, at XXXXX's request, Developer will make qualified technical personnel available for a minimum of _________ hours at reasonable times for training and consultation with representatives of XXXXX.

(b). At XXXXX's option, XXXXX may extend the period for which Developer must provide support pursuant to Paragraph 4(a) by additional twelve (12) month periods by paying an extended maintenance fee of _________ within thirty (30) days of notice to Developer that XXXXX wants extended maintenance.

5. Indemnity.

(a). Developer represents and warrants that the Specifications, Product and Documentation will be original creations of Developer and will not infringe any patent, copyright, trade secret or other proprietary rights of any third party; that Developer has not previously or otherwise granted any rights to any third party which conflict with the rights herein granted by Developer; and that Developer has the full power and ability to enter into this Agreement, to carry out its obligations set forth herein and to grant the rights granted to XXXXX herein.

(b). Developer will indemnify XXXXX and its customers for, and hold them harmless from, any loss, expense, damages, claims, demands, or liability arising from any claim, suit or recovery resulting from a breach of any warranty set forth in Paragraph 5(a) above provided Developer is given the right to participate in the investigation, preparation, defense and settlement of such claim or suit. XXXXX will promptly notify Developer in writing of any such claim or suit, and will fully cooperate in the defense thereof. XXXXX shall have the right, at its option, to participate in the defense of any such claim with counsel of its choice.

(c). Following notice of a claim or suit, Developer shall, at Developer's expense, either procure for XXXXX the right to continue to use the Specifications, Product and Documentation as furnished, or replace or modify Specifications, the Product and Documentation to make them non-infringing. If Developer elects to replace or modify the Specifications, Product or Documentation such replacement shall be subject to acceptance testing pursuant to the terms of this Agreement.

(d). Developer will indemnify XXXXX and its customers for, and hold them harmless from, any loss, expense, damages, claims, demands, or liability arising from any claim, suit or recovery resulting from (i) the negligence or willful misconduct of Developer; or (ii) Developer's noncompliance with applicable federal, state and local laws and regulations pursuant to Paragraph 1(e).

6. Ownership of Work Product.

(a). In consideration of XXXXX's payment of the fees specified herein, Developer hereby assigns to XXXXX its entire right, title and interest in the Product, Documentation, Specifications, notes, drawings, designs, procedures, discoveries and inventions created pursuant to this Agreement, including, but not limited to, patents, copyrights, trade secrets and any other intellectual property right, whether in the United States or abroad. Developer agrees to cooperate with XXXXX in the procurement and maintenance of XXXXX's rights in the Product, Documentation and Specifications and to sign all papers which XXXXX may deem necessary and desirable for vesting XXXXX with such rights throughout the world, including litigation of applicable patents, copyrights and other proceedings, and executing an assignment of copyright in the form attached hereto as Exhibit C. In the event that XXXXX is unable for any reason whatsoever to secure a signature on behalf of Developer to any document it believes is reasonably required in order to apply for or execute any patent, copyright or other application with respect to the Product, Specifications or Documentation Developer hereby irrevocably designates and appoints XXXXX and its duly authorized officers and agents as Developer's agents and its attorneys-in-fact to act for and in its behalf and instead of it, to execute and file any such application and to do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights or other rights therein with the same legal force and effect as if executed by Developer.

(b). Developer hereby irrevocably transfers and assigns to XXXXX any and all Moral Rights (as defined below) Developer may have in or with respect to the Product, the Documentation or the Specifications (collectively, the "Works"). To the extent Developer cannot assign such rights, Developer hereby waives and agrees never to assert such rights against XXXXX or any of XXXXX's licensees. If Developer has any right to the Works that cannot be assigned to XXXXX or waived by Developer, Developer unconditionally and irrevocably grants to XXXXX, during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense throughout multiple levels of sublicensees, to reproduce, create derivative works of, distribute, publicly perform and publicly display by all means now known or later developed such rights. In addition, Developer agrees to obtain such assignment, waiver, covenant not to assert such rights, or license from any subsidiary, subcontractor, or employee who creates, either in whole or part, the Works. "Moral Rights" means any right to (i) divulge the Works to the public; (ii) retract the Works from the public; (iii) claim authorship of the Works; (iv) object to any distortion, mutilation or other modification of the Works; or (v) any and all similar rights, existing under judicial or statutory law of any country or jurisdiction in the world, or under any treaty regardless of whether or not such right is called or generally referred to as a moral right.

(c). Any data or other materials furnished by XXXXX for use by Developer in connection with the services performed hereunder shall remain the sole property of XXXXX and shall be used by Developer solely for the purposes set forth herein.

(d). Developer agrees that it will not create any product in direct competition with the Product during the term of this Agreement and for a period of _________ years after acceptance of the Product by XXXXX. A product is in "direct competition" if it is designed to perform the same scope of functions for the same target audience as the Product.

7. Confidentiality.

(a). "Confidential Information" as used in this Agreement shall mean the Functional Requirements, Specifications, Product, Documentation, any and all technical and non-technical information including patent, trade secret, and proprietary information, techniques, sketches, drawings, models, inventions, know-how, processes, apparatus, equipment, algorithms, software programs, software source documents, and formulae related to the current, future and proposed products and services of XXXXX, and includes, without limitation, its respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising, and marketing plans and information.

(b). Developer agrees that it will not make use of, disseminate, or in any way disclose Confidential Information to any person, firm or business, except to the extent necessary for performance of this Agreement. Developer agrees that it shall disclose Confidential Information only to those of its employees who need to know such information and who have previously agreed to be bound by the terms and conditions of this Agreement. Developer agrees that it shall treat all XXXXX Confidential Information with the same degree of care as it accords to its own confidential information and Developer represents that it exercises reasonable care to protect its own confidential information.

(c). Except for the Confidential Information relating to the Specifications, Product and Documentation, Developer's obligations with respect to any portion of Confidential Information shall terminate when Developer can document that (a) it was in the public domain at the time it was communicated to Developer by XXXXX; (b) it entered the public domain subsequent to the time it was communicated to Developer by XXXXX through no fault of Developer; (c) it was in Developer's possession free of any obligation of confidence at the time it was communicated to Developer by XXXXX; (d) it was rightfully in Developer's possession free of any obligation of confidence at or subsequent to the time it was communicated to Developer by XXXXX; (e) it was developed by employees or agents of Developer independently of and without reference to any information communicated to Developer by XXXXX; or (f) the communication was

in response to a valid order by a court or other governmental body, was otherwise required by law, or was necessary to establish the rights of either party under this Agreement.

(d). This Paragraph 7 shall survive any termination of this Agreement.

8. Termination.

(a). With Cause. XXXXX may terminate this Agreement upon thirty (30) days written notice of a material breach of this Agreement if such breach is not cured within such thirty (30) day period.

(b). Rights Upon Termination. Upon termination of this Agreement, Developer will deliver all Specifications, Product, Documentation and other deliverables in its possession to XXXXX and XXXXX shall have the right to supply, correct or complete the deliverable item and deduct an amount equal to one and one-half (1-1/2) times XXXXX's fully burdened costs (including without limitation direct internal labor and fringe benefits and any sums, including royalties, paid to third parties) from any payments due to Developer or receive a refund from Developer for such costs up to the total amount paid by XXXXX hereunder.

9. General Provisions.

(a). No Agency. Developer will in all matters relating to this Agreement act as an independent contractor. Developer will have no authority and will not represent that it has any authority to assume or create any obligation, express or implied, on behalf of XXXXX, or to represent XXXXX as agent, employee or in any other capacity. Neither execution nor performance of this Agreement shall be construed to have established any agency, joint venture or partnership.

(b). Governing Law. This Agreement shall be governed in all respects by the laws of the United States of America and _________[state] excluding the application of its conflict of laws rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

(c). Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, telegram, telex, telecopier, facsimile transmission or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. Notices shall be sent to the signatory of this Agreement at the address set forth at the end of this Agreement or such other address as either party may specify in writing. If the notice is to XXXXX, a copy shall also be sent to its Corporate Counsel.

(d). Injunctive Relief. It is understood and agreed that, notwithstanding any other provision of this Agreement, breach of the provisions of this Agreement regarding the protection of Confidential Information by Developer will cause XXXXX irreparable damage for which recovery of money damages would be inadequate, and that XXXXX shall therefore be entitled to obtain timely injunctive relief to protect XXXXX's rights under this Agreement in addition to any and all remedies available at law.

(e). Time of the Essence. The parties acknowledge that time is of the essence in the performance of their obligations under this Agreement.

(f). Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

(g). Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be

changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.

(h). Warranty. Developer warrants that it has full power to enter into and perform this Agreement, and the person signing this Agreement on Developer's behalf has been duly authorized and empowered to enter in this Agreement, understands it and agrees to be bound by it.

(i). Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement.

(j). Confidentiality of Agreement. Neither party will disclose any terms or the existence of this Agreement, except pursuant to a mutually agreeable press release or as otherwise required by law.

(k). Entire Agreement. This Agreement and the Exhibits hereto constitute the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior or collateral agreements with respect to the subject matter hereof with the exception of any prior confidentiality agreements between the parties. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.

(l). Assignment. Developer shall not assign any rights or obligations arising under this Agreement without the prior written consent of XXXXX. Subject to the above restriction on assignment, this Agreement shall inure to the benefit of and bind the successors and assigns of the parties.

(m). Attorney's Fees. In any legal proceeding between the parties, the prevailing party shall be entitled to recover attorney's fees and expenses.

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed by their respective authorized representatives. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same original.

Exhibit A.

FUNCTIONAL REQUIREMENTS

Exhibit B.

DEVELOPMENT SCHEDULE

Exhibit C.

ASSIGNMENT OF COPYRIGHT

For good and valuable consideration which has been received, the undersigned sells, assigns and transfers to XXXXX, a _________[state] corporation, and its successors and assigns, the copyright and all of the right, title and interest of the undersigned, vested and contingent, in and to the following work, which was created by the following indicated author(s):

Title:

_________

Author(s):

_________

Copyright Office Identification No. (if any):

_________

Executed this _________ day of _________[date].

Signature:

_________

Printed Name:

_________