Noodle

NOODLE

END USER LICENCE AGREEMENT

SOFTWARE (c) CONFABULATE LIMITED 2006. [PATENT PENDING.]

IMPORTANT: READ THIS LEGALLY BINDING AGREEMENT CAREFULLY BEFORE USING THE "NOODLE" SOFTWARE PRODUCT!

THIS END USER LICENCE AGREEMENT ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU AND CONFABULATE LIMITED TRADING AS NOODLE ("NOODLE") FOR THE EVALUATION AND/OR USE OF THE "NOODLE" COMPUTER SOFTWARE (INCLUDING ANY UPDATES WHICH MAY BE ISSUED BY NOODLE IN NOODLES SOLE DISCRETION FROM TIME TO TIME) AND NOODLE USER DOCUMENTATION AND OTHER DOCUMENTATION OR PRINTED MATERIAL WHETHER PROVIDED TO YOU ON PHYSICAL MEDIA OR RECEIVED BY YOU VIA ANY FORM OF ELECTRONIC DISTRIBUTION (TOGETHER REFERRED TO AS THE "SOFTWARE").

BY EITHER (A) CLICKING ON THE "YES" BUTTON ON INSTALLATION OF THE SOFTWARE AND/OR (B) INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE YOU ACCEPT THIS AGREEMENT IN ITS ENTIRETY. IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, CLICK ON THE "NO" BUTTON AND/OR DO NOT CONTINUE TO DOWNLOAD, INSTALL, COPY OR OTHERWISE USE THE SOFTWARE. IF YOU ARE ACCEPTING THIS LICENSE ON BEHALF OF A CORPORATE LICENSEE YOU REPRESENT THAT YOU ARE AUTHORISED TO DO SO. IF YOU ARE NOT SO AUTHORISED, NOR DEEMED IN LAW TO HAVE SUCH AUTHORITY, YOU ASSUME SOLE PERSONAL LIABILITY FOR THE OBLIGATIONS SET OUT IN THIS AGREEMENT.

Noodle is the owner of and retains the copyright and all other intellectual property rights in the Software and any copies of the Software that you are entitled to make in accordance with the terms of this Agreement. All applicable laws including copyright and other intellectual property laws of various jurisdictions, as well as international treaties, protect the Software. Your use of the Software does not give you ownership of any intellectual property rights in the Software. The Software represents the confidential information of Noodle that you agree to keep strictly confidential. You must not remove any confidential or proprietary notices on, or comprised in, the Software. The Software is licensed not sold. Your use of the Software is subject always to the terms of this Agreement.

LicenCe

Noodle grants you a non-exclusive, non-transferable licence to use the Software in accordance with the Noodle Terms of Use and any user documentation supplied with the Software. You may only load or install or use the Software on a single workstation under your direct control unless you have purchased a server version(s) of the Software. If you have purchased a server version(s) of the Software you may install the Software on the number of servers under your direct control for which you have purchased licences. Any copy of the Software is subject to the terms of this Agreement.

Restrictions

You may not:

* load the Software into two or more computers at the same time and if you want to transfer the Software from one computer to another you must erase the Software from the first computer before you install it onto a second computer;

* install or load or use the Software onto a server or other networked device or take other steps to make the Software available via any form of "bulletin board", on-line service, remote dial-in or network to any other person unless you have purchased a server version(s) of the Software;

* run the Software on more workstation(s) and/or server(s) than you have purchased licences for;

* sub-license, assign, rent, lease or transfer your licence of the Software or make or distribute copies of the Software;

* translate, reverse engineer, de-compile, disassemble, modify, create derivative works based on, or otherwise modify the Software except as permitted by law;

* make copies of the Software except as permitted under this Agreement or by applicable law. You may make one copy of the Software for backup purposes only;

* use the Software in breach of any applicable law or regulation, whether that law or regulation originates in the UK, any other jurisdiction or internationally;

* use any back-up copy of the Software (or allow anyone else to use such back-up copies) for any purpose other than to replace the original copy in the event that such original copy is destroyed or becomes defective; or

* download, install or otherwise use the Software if you reside in a jurisdiction where it is unlawful to do so.

Third Parties

You agree that you will not use the Software for the purposes of sending or transmitting any data or other material (a) in a manner that constitutes a violation or infringement of the rights of any third party (including but not limited to intellectual property rights) or (b) that has harmful or destructive or damaging properties or (c) which is likely to cause harm or damage to the computer systems, network or equipment of any third party. You agree to indemnify Noodle against all and any losses, costs, claims, liabilities, expenses or damages arising out of your breach of this paragraph.

Equipment

You are responsible for obtaining and maintaining at your own expense all computer hardware, software and communication equipment necessary to access and/or use the Software.

Limited Warranty

Noodle warrants for a period of 60 days from the date of distribution of the Software to you ("the Warranty Period") that the Software will materially conform to the Noodle user documentation that is supplied with the Software.

Your sole and exclusive remedy for any breach of this warranty is to obtain (at your option) either a replacement copy of the Software free of charge provided that you provide evidence of the problem causing the breach of this warranty. Any replacement Software or media is subject to the above warranty for either (i) a period of 30 days from receipt of the replacement Software by you or (ii) the remainder of the original 60-day period (whichever is the longer). This limited warranty gives you specific legal rights. Outside of the United Kingdom, you may also have other rights, which will vary depending on your jurisdiction.

DISCLAIMER

THE SOFTWARE AND MEDIA ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OTHER THAN THOSE EXPRESSLY SET OUT IN THIS AGREEMENT. NOODLE EXCLUDES ALL OTHER WARRANTIES, TO THE MAXIMUM EXTENT PERMITTED BY, AND ENFORCEABLE UNDER, APPLICABLE LAW INCLUDING, (WITHOUT LIMITATION), ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY THAT THE SOFTWARE WILL BE NON-INFRINGING OR MEET YOUR SPECIFIC REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. YOUR STATUTORY RIGHTS AS A CONSUMER (IE; A PURCHASER FOR PRIVATE AS OPPOSED TO BUSINESS, GOVERNMENTAL OR ACADEMIC USE) ARE NOT AFFECTED.

NOODLES LIABILITY TO YOU FOR ANY DAMAGE OR LOSSES ARISING FROM YOUR USE OF THE SOFTWARE WILL NOT EXCEED THE AMOUNT YOU ORIGINALLY PAID FOR THE SOFTWARE OR THE SUM OF Ł1,000 (IF GREATER). NOODLE ACCEPTS NO LIABILITY FOR ANY LOSS OF OR DAMAGE TO DATA OR, SOFTWARE OR OTHER COMPUTER EQUIPMENT, LOSS OF PROFIT, LOSS OF SAVINGS, BUSINESS OR REVENUE OR LOSS OF USE HOWEVER ARISING. NOODLE ACCEPTS NO LIABILITY TO YOU FOR ANY FORM OF INDIRECT OR CONSEQUENTIAL LOSS EVEN IF NOODLE HAS BEEN ADVISED OF THE POSSIBILITY OF YOU INCURRING SUCH LOSS. NOODLE ACCEPTS NO LIABILITY TO YOU FOR ANY LOSS THAT IS CAUSED BY EVENTS BEYOND NOODLES REASONABLE CONTROL. NOTHING IN THIS AGREEMENT LIMITS NOODLES LIABILITY TO YOU FOR DAMAGES RELATING TO DEATH OR PERSONAL INJURY CAUSED BY NOODLES NEGLIGENCE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS AND EXCLUSIONS SUCH AS THOSE ABOVE; IF YOU HAVE PURCHASED THE SOFTWARE IN SUCH A JURISDICTION, THEN THE ABOVE LIMITATION AND EXCLUSIONS WILL ONLY APPLY TO THE EXTENT THEY ARE PERMITTED UNDER THAT JURISDICTION.

Termination

This Agreement and your rights to use and/or possess the Software automatically terminates if (a) you have breached any of its terms and failed to correct your breach within a reasonable time or (b) you destroy the copies of the Software in your possession or (c) you voluntarily return the Software to us. On termination of this Agreement you must destroy or delete all copies of the Software and any documentation supplied with it from all computers and/or storage media under your possession, custody, power or control.

General

You may not transfer your rights under this Agreement without the prior written approval of Noodle. You hereby agree that Noodle may assign any of Noodles rights and/or novate or otherwise transfer any of Noodles obligations under this Agreement. Noodle does not waive any of its rights under this Agreement by delaying to exercise such rights or by exercising only a part of them at any time. If a court of competent jurisdiction rules that a provision of this Agreement is unenforceable, Noodle shall amend that provision in such reasonable manner as achieves the intention of the parties without illegality or (at Noodles discretion) such provision may be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect. You acknowledge and agree that any violation by you of the provisions of this Agreement would cause Noodle irreparable harm for which Noodle would have no adequate remedy at law; and that, in addition to other remedies which may be available to Noodle under this Agreement, Noodle will be entitled to seek injunctive relief against any such violation.

Nothing in this agreement shall affect your statutory rights as a consumer.

Law

This Agreement and all matters arising from it are governed by and construed in accordance with English law. The courts of England and Wales shall have exclusive jurisdiction over all disputes arising out of, or in connection with, this Agreement.

Export Restrictions

This Agreement is expressly made subject to any regulations, orders, or other restrictions on the export from the UK/EU/USA or any other relevant territory of the Software or information about the Software that may be imposed from time to time by the relevant authorities. You agree that you will not (directly or indirectly) export or re-export the Software without first obtaining all such consents, permissions or authorisations that may be required under any applicable export control laws and the prior written consent of Noodle. You agree to indemnify Noodle against all and any losses, costs, claims, liabilities, expenses or damages arising out of your breach of this paragraph.

Contact Details

The Software is provided by Noodle. Noodle is a UK limited company (as Confabulate Ltd) with registration number 5605939 with registered offices at 9 Market Row, Saffron Walden, Essex CB10 1HB. VAT Registration Number [ ]. If you have any questions or problems relating to the Software or this Agreement (including refunds or replacements or complaints) then please contact Noodle at the address above.

No Waiver

The failure of either party at any time to enforce any provision of this Agreement shall in no way affects its rights thereafter to require complete performance by the other party, nor shall the waiver of any breach of any provision be taken or held to be a waiver of the provision itself. Any waiver to be effective must be in writing.

Whole Agreement

This Agreement constitutes the entire agreement between Noodle and you as to the subject matter hereof and supersedes all previous communications, representations and arrangements, either written or oral, and you hereby acknowledge that no reliance is placed on any representation made but not embodied in this Agreement.

Third Party Rights

The Contracts (Rights of Third Parties) Act 1999 shall not apply to this Agreement. No person who is not a party to this Agreement (including any employee, officer, agent, representative or subcontractor of either party) shall have the right (whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise) to enforce any term of this Agreement which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the parties which agreement must refer to this clause.

NOODLE

PRIVACY POLICY

When you register with Noodle you may be required to answer certain questions and provide certain personal information about yourself. In addition, such personal information may be disclosed to us during or as a consequence of our providing services to you. The Data Protection Act 1998 sets out your rights as a consumer in respect of information held about you by businesses.

These terms and conditions are provided to set out clearly the relationship between us. By registering with us and/or using this website and our services you consent to these terms and conditions. However, this shall not effect your rights in relation to your personal data.

Who will hold your information?

Your information will be held by Confabulate Limited (a company registered in England under number 05605939) doing business as Noodle (Noodle). Noodle is called the Data Controller because it has control over and responsibility for your personal information.

Noodle is the owner of this website and the Noodle voice over IP service and other services described on this website (the Service).

If the business of Noodle is sold or integrated with another business your details may be disclosed to our advisors and any prospective purchasers and their advisors and will be passed on to the new owners of the business.

The information about you which we COLLECT

The information about you which we will collect may include:

Personal contact details such as name, address, contact telephone numbers and email address; and

Details about the services offered by Noodle which you have expressed an interest and your preferences for the use of the Service;

[Details of conversations recorded by us (see 3.2 below) and] any image of yourself submitted for your Noodle Suit.

Information that is necessary in order to enable or assist the operation of the Service such as Cookie data (see below) and addressing information.

Source of the information we hold about you

We may receive information about you directly from you when you submit information to us by registering for and or using the Noodle Service or ask to join our mailing list.

[We may monitor or record communications in which you take part:

[to assist us with the development of the Service];

[to train our staff];

[if we have reason to believe monitoring that you are using the Service in breach of our Terms of Use]; <insert link to Terms> or

[if so requested by order of the Court, regulatory body or law enforcement organisation].

Purposes for which we hold and use your information

We may use your information for a number of purposes which are outlined below:

The provision of the Service to you:

To administer and maintain our records;

To ensure that the Service continues to be the most appropriate service for your needs;

To verify your identity;

To respond to any query that you may raise with us; and

To update our systems to provide an enhanced service to you.

We may share your data with third party companies and organisations contracted to us to help supply, maintain or facilitate the Service. These third parties may include (without limitation) carriers, technology providers or partners and providers of payment or banking services.

Marketing, selling, and trading in personal information purposes:

We do not currently trade or sell personal information. However, in the future, your information may be sold to suppliers of other goods and services which we feel may be of interest to you. These third parties may contact you directly or indirectly and offer their goods and services to you. If you would rather not receive this information, please send an email to [dataprotection@noodle.com] with the subject line no third parties or write to the data controller at the address below.

Your personal data may be used to keep you informed about other products and services offered by Noodle and our group companies. If you would rather not receive this information, please send a blank email to

[

dataprotection@noodle.com] with the subject line no marketing or write to the data controller at the address below.

Other purposes:

Your information may be used by Noodle for the purpose of research and statistical analysis;

Noodle may disclose information to other companies within the same group of companies as Noodle or to law enforcement agencies; and

Noodle may use information about your registration for our internal customer service monitoring.

The period of use of the personal data supplied by you will not be longer than we deem necessary but may, subject to clause 7.1.4, be unlimited.

Keeping information up to date

In order to help the Data Controller keep your information up to date registered users may be asked to provide details of any changes in their information at regular intervals.

If any of the information that you have provided to Noodle changes, for example if you change your email address, name or payment details or if you wish to cancel your registration, please let us know the correct details by sending an email to [dataprotection@noodle.com] or writing to us at the address below.

Security for your information

We have in place a level of security appropriate to the nature of the data and the harm that might result from a breach of security. However, all publicly accessible websites are susceptible to malicious practices, and we accept no liability if security is breached.

We further undertake that we will not hold information about you which is excessive in respect of the purposes for which it is processed.

COOKIES

The Service uses cookies. Cookies are small pieces of information which are sent by a website to your web browser and remain on your computer until they are deleted. Cookies are sent by the Service to ensure that it does not unnecessarily show you information that you have already seen. Cookies therefore enable Noodle to offer you a more personalised service. You agree to our use of cookies and/or any other data tracking or gathering technologies we employ in the future. However, if you do not wish to receive cookies from us, please adjust your browsers settings accordingly. Most browsers including Internet Explorer and Firefox can be set to reject cookies. Please note however that this may restrict your use of our Service.

Your Rights

You have certain rights under the Data Protection Act in relation to the information that we hold about you. These rights include the rights set out below:

You are entitled to have access to your personal data. You may request by writing to Noodle (at the address given in Clause 8 below), details of your information which we hold and the purposes for which it is held. We will provide this information within 40 days of your request, subject to any routine processing continuing between that time and the time of response. You may be charged a reasonable fee (as permitted by the Data Protection Act 1998) for this information.

You are entitled, by writing to Noodle, to require that Noodle not commence using the information and request that Noodle stop using information about you for the purpose of direct marketing i.e. the communication to you (by whatever means) of any advertising or marketing material;

You are entitled, by writing to Noodle, to require us to ensure that no decision taken by or on behalf of Noodle and which significantly affects you is based solely on the automated processing of your information, for the purpose of evaluating such matters as, for example, your creditworthiness, reliability or conduct; and

if it is held by a court that the personal information held is inaccurate, you are entitled to apply to ask the court for an order that such inaccurate information be rectified, blocked, destroyed, or erased.

YOUR CONSENT

By submitting your information you consent to the use of that information as set out in this policy. If we change our privacy policy we will post the changes on this page and may place notices on other pages of the website, so that you may be aware of the information we collect and how we use it at all times.

Contact Details for the Data Controller at Noodle

If you would like to contact us with any queries or comments regarding our privacy policy, please send an email or write to:

[dataprotection@noodle.com]

Confabulate Limited trading as Noodle

9 Market Row
Saffron Walden
Essex

CB10 1HB

DATED 2006

CONFABULATE LIMITED (1)

- and -

[ ] (2)

LICENCE FOR NOODLE

SOFTWARE AND DEVELOPMENT KIT

THIS AGREEMENT is made on 2006

BETWEEN:-

CONFABULATE LIMITED, a company incorporated in England under number 05605939) whose registered office is at 9 Market Row, Saffron Walden, Essex CB10 1HB (Confabulate); and

[ ], a company incorporated in England under number [ ], whose registered office is at [ ] ("the Licensee'')

WHEREAS:

Confabulate has agreed to grant the Licensee a non-exclusive licence to use certain software and associated documentation upon the terms and conditions hereinafter contained.

NOW IT IS HEREBY AGREED as follows:

Definitions

In this Agreement, unless the context otherwise requires, the following expressions have the following meanings:

Affiliate	means any company, partnership or other entity which directly or indirectly Controls, is Controlled by or is under common Control with either party as a Subsidiary or Holding Company
Agreement	means the terms and conditions of this agreement including the Clauses and Schedules
Commencement Date	means the date of this Agreement
Control	means the ownership of more than 50% of the issued share capital or the legal power to direct or cause the direction of the general management and policies of the Party in question
the Delivery Date	means 7 days from the Commencement Date or such extended date as may be agreed between the parties
Development Software	means the SDK (Software Development Kit) software package details of which are set out in Schedule 2

End Users	means the employees or users of the person who uses the services and or products of the Licensee
End User Licence	means a licence by an End User of the use of the Licensed Programs as set out in Schedule 4
the Licence	means the licences granted by Confabulate pursuant to Clause 2.1.1 and 2.1.3
the Licence Fee	means the fee for the Licence and the services to be provided under this Agreement as specified in Schedule 3
the Licensed Programs	means [name of Noodle software and version number] software programs for voice over internet protocol applications with the specification and functionality set out in Schedule 1
the Licensed Program Materials	means the Licensed Programs, the Program Documentation and the Media
the Media	means the media on which the Licensed Programs and Development Software is recorded as provided to the Licensee by Confabulate
the Permitted Purpose	means to distribute to End Users via electronic distribution as a combined or standalone product, and in each case using Licensee branding
the Program Documentation	means the documentation supplied to the Licensee by Confabulate for aiding the use of the Licensed Programs and Development Software
the Specification	means the specification of the Licensed Programs, a copy of which is set out in the Schedule 1
Subsidiary or Holding Company	means that this term shall have the meaning ascribed to it by Section 736 of the Companies Act 1985
Initial Term	means a period of [two] years from the Commencement Date
Use the Licensed Programs	means to use and sub-licence the use of the Licensed Programs in accordance with the terms of this Agreement

all references to Clauses and Schedules are reference to clauses and schedules to this Agreement unless the context otherwise requires;

all references to statutory provisions shall, except where the context requires otherwise, be construed as references to those provisions as respectively amended or re-enacted or as their application is modified by other provisions (whether before or after the date of this Agreement from time to time);

unless the context otherwise requires, references to the singular include the plural and vice versa; references to any gender include all other genders, and references to "persons" shall include individuals, bodies corporate, unincorporated associations, businesses and partnerships;

the headings shall be ignored in construing this Agreement; and

references to the words "includes" or "including" shall be construed without limitation to the generality of the preceding words.

Products and services to be provided

Subject to the terms of this Agreement Confabulate hereby agrees to:

grant to the Licensee a non-exclusive [world wide] licence to Use the Licensed Program Materials in accordance with the Permitted Purpose;

deliver the Licensed Programs to the Licensee on the Delivery Date;

grant the Licensee a non-exclusive, non-transferable personal licence to use and copy the Development Software for the sole purpose of developing, maintaining and supporting the Licensed Programs;

provide the Program Documentation to the Licensee on the Delivery Date;

provide the other services hereinafter described;

upon the terms and conditions hereinafter contained.

Licence Fee

Subject to the payment by the Licensee of the amounts set out in Clause 3.2, the Licensee shall be free to determine the price at which they licence the Licensed Programs to End Users.

In consideration of Confabulate granting the Licensee the Licence, the Licensee shall pay to Confabulate the Licence Fee.

The Licensee shall only grant licenses of the Licensed Programs to End Users subject to the End User Licence Agreement.

Payment

The Licence Fee shall be paid by the Licensee.

The Licensee undertakes to pay the relevant Licence Fee to Confabulate in respect of any use of the Licensed Programs by any End Users. Monies shall accrue on the date on which the Licensee invoices the Net Invoice Value in respect of such End User Licence, and the Licensee shall within thirty days (30) days of the end of each Month submit to Confabulate an account setting out in reasonable detail the amount of Licence Fee accruing during such Month and the calculation thereof (a "Monthly Account") payable in respect of each End User Licence.

The Licence Fee and any additional charges payable under this Agreement are exclusive of Value Added Tax which shall be paid by the Licensee at the rate and in the manner for the time being prescribed by law.

Any charges payable by the Licensee hereunder in addition to the Licence Fee shall be paid within 30 days after the receipt by the Licensee of Confabulate's invoice therefore.

If any sum payable under this Agreement is not paid within 7 days after the due date then (without prejudice to Confabulate's other rights and remedies) Confabulate reserves the right to charge interest on such sum on a day to day basis (as well after as before any judgment) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 3 per cent above the base rate of Barclays Bank pic (or such other London clearing bank as Confabulate may nominate) from time to time in force compounded quarterly. Such interest shall be paid on demand by the Licensee.

The Licensee shall throughout the duration of this Agreement:

keep complete and accurate books and records of accounts relating all End Users to which it distributes or licenses the Licensed Programs; and

permit Confabulate or an accountant appointed by Confabulate upon reasonable notice and not more than once every six months to inspect and make and retain copies of the books and records for the purposes of verifying any amount due under Clauses 3.1 and 4.1 (provided the accountant is bound by equivalent obligations of confidentiality to those contained in Clause 13).

The Licensee shall be responsible for collecting any amounts due and payable to Confabulate from the third parities that it contracts with through End User Licences.

Confabulate shall bear the costs of any investigation as described in Clause 4.6 except that in the event that the amount paid by the Licensee has understated the Licence Fee properly due under this agreement for the relevant period by more than five percent (5%) then the Licensee shall (in addition to making good such shortfall together with the interest accruing thereto) refund Confabulate costs incurred in undertaking such investigation.

Delivery and installation

On the Delivery Date Confabulate shall deliver the Licensed Programs and Development Software to the Licensee and will work with them to integrate the Licensed Programs and Development Software into the licensee's software. The Licensed Programs shall consist of one copy of the object code of the Licensed Programs in machine-readable form only, on the storage media specified in Schedule 1.

Risk

Risk in the Media shall pass to the Licensee on delivery. If any part of the Media shall thereafter be lost, destroyed or damaged Confabulate shall at the request of the Licensee replace the same promptly (embodying the relevant part of the Licensed Programs Development Software) subject to the Licensee paying the cost of such replacement. Confabulate shall not make any further or additional charge for such replacement.

Warranty

Confabulate warrants that the Licensed Programs Materials will provide the facilities and functions set out in the Specification.

If Confabulate receives written notice from the Licensee after the Commencement Date of any breach of the said warranty in Clause 7.1 then Confabulate shall at its own expense and within a reasonable time after receiving such notice remedy the defect or error in question provided that Confabulate shall have no liability or obligations under the said warranty in Clause 7.1 unless it shall have received written notice of the defect or error in question no later than the expiry of 12 months after the Commencement Date.

The said warranty in Clause 7.1 shall be subject to the Licensee complying with its obligations hereunder and to there having been made no alterations to the Licensed Programs, other than those permitted by this Agreement, by any person other than Confabulate or a person authorised by Confabulate. When notifying a defect or error the Licensee shall (so far as it is able) provide Confabulate with a documented example of such defect or error.

Confabulate shall have no liability or obligations under the said warranty in Clause 7.1 other than to remedy breaches thereof by the provision of materials and services within a reasonable time and without charge to the Licensee.

If Confabulate shall fail to comply with such obligations under Clause 7.1 (but subject to Clauses 7.2, 7.3 and 7.4) its liability for such failure shall be limited to a sum equal to the Licence Fee. The foregoing Clause 7 states the entire liability of Confabulate, whether in contract or tort (including negligence), for defects and errors in the Licensed Program Materials.

The Licensee acknowledges that neither the Licensed Programs nor the Development Software have been prepared to meet the Licensee's individual requirements and that it is therefore the responsibility of the Licensee to ensure that the facilities and functions described in the Specification meet its requirements. Confabulate shall not be liable for any failure of the Licensed Programs and or the Development Software to provide any facility or function not specified in the Specification or Schedule 2.

Licence

The Licensee shall only Use the Licensed Program Materials for the Permitted Purpose and shall not use the Development Software other than as permitted in accordance with Clause 2.1.3 and the Licensee shall not otherwise permit any third party to use the Licensed Program Materials or Development Software nor use the Licensed Program Materials or Development Software on behalf of or for the benefit of any third party in any way whatever.

The Licence shall not be deemed to extend to any other programs or materials of Confabulate other than the Licensed Program Materials and Development Software unless specifically agreed to in writing by Confabulate.

The Licensee hereby acknowledges that it is licensed to use the Licensed Program Materials and Development Software only in accordance with the express terms of this Agreement and not further or otherwise.

Duration of Licence

The Licence shall commence on the Commencement Date and shall continue for the Initial Term unless terminated earlier in accordance with Clause 22, and thereafter shall continue for successive periods of twelve (12) months unless and until terminated by either party on not less than 90 days notice prior to the expiry of the Initial Term or subsequent twelve (12) month period or as otherwise provided in this Agreement.

Proprietary rights

The Licensed Programs and the Development Software and the copyright and other intellectual property rights of whatever nature in the Licensed Programs and Development Software, which are owned by Confabulate, are and shall remain the property of Confabulate and Confabulate reserves the right to grant licences to use the licensed Programs or Development Software to third parties.

The Licensee shall notify Confabulate immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the licensed Programs or Development Software by any unauthorised person.

The Licensee will permit Confabulate to check the use of the Licensed Programs and/or Development Software by the Licensee at all reasonable times and for that purpose Confabulate shall be entitled to enter any of the Licensee's premises (and so that the Licensee hereby irrevocably licenses Confabulate, its employees and agents to enter any such premises for such purpose).

Technical Support

Confabulate shall provide the following assistance in respect of Use of the Licensed Programs and Development Software:

advice by telephone and email on the Use of the Licensed Programs and Development Software;

information and advice by telephone and email on forthcoming upgrades of the Licensed Programs and Development Software;

upgrades to the Licensed Program Materials and Development Software as and when made available by Confabulate to its licensees; and

upon request by the Licensee the diagnosis of faults in the Licensed Programs and Development Software and the rectification of such faults remotely by the issue of fixes in respect of the Licensed Programs and the making of all necessary consequential amendments (if any) to the Program Documentation.

Licensee shall only use the current release of the Licensed Programs.

Intellectual property rights indemnity

Confabulate shall indemnify and hold harmless the Licensee from and against any and all losses, liabilities, demands, claims, costs and expenses (including reasonable legal costs and disbursements) and damages incurred or suffered by the Licensee, and any damages awarded against Licensee, arising directly or indirectly (and whether in contract or tort, including negligence, or otherwise) as a result of or in connection with a claim that the use or possession of the Licensed Program Materials in compliance with this Agreement infringes the intellectual property rights of any third party provided that the claim does not arise as a result of the use of the Licensed Program Materials in combination with any other equipment or programs not supplied or approved by Confabulate (a Relevant Claim).

Confabulate shall be given immediate and complete control of such claim.

The Licensee shall not prejudice Confabulate's defence of such claim.

The Licensee shall give Confabulate all reasonable assistance with such claim.

The Licensee shall promptly notify Confabulate of any claim, demand or action for infringement or alleged infringement of any intellectual property rights of any third party by the Licensed Program Materials and Confabulate shall have the right to either:

procure the right for the Licensee to continue to Use the Licensed Program Materials;

make such alterations, modifications, or adjustments to the Licensed Program Materials so that they become non-infringing without incurring a material change to the specification; or

replace the Licensed Program Materials (or relevant part thereof) with non-infringing substitutes provided that such substitutes materially conform to the specification.

If Confabulate is not able to exercise any of the options set out in Clauses 12.5.1- 12.5.3 above within 14 days of the date it receives notice of intellectual property infringement or alleged infringement then (without prejudice to 12.1) the Licensee shall be entitled to terminate this Agreement.

The foregoing states the entire liability of Confabulate to the Licensee in respect of the infringement of the intellectual property rights of any third party.

Confidentiality of Licensed Program Materials

The Licensee undertakes to treat as confidential and keep secret all information contained or embodied in the Licensed Programs and/or the Development Software, Program Documentation, Pricing and the Specification and all information conveyed to the Licensee by training (hereinafter collectively referred to as 'the Information').

The Licensee shall not without the prior written consent of Confabulate divulge any part of the Information to any person except:

the Licensee's own employees and then only to those employees who need to know the same;

the Licensee's auditors, Tax Authorities, HM Inspector of Taxes, HM Customs & Excise and any other persons or bodies having a right duty or obligation to know the business of the Licensee and then only in pursuance of such right duty or obligation;

any person who is from time to time appointed by the Licensee to maintain any equipment on which the Licensed Programs are being used (in accordance with the terms of the Licence) and then only to the extent necessary to enable such person properly to maintain such equipment.

The Licensee undertakes to ensure that the persons and bodies mentioned in Clause 13.2 are made aware prior to the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to Confabulate. The Licensee shall indemnify Confabulate against any loss or damage which Confabulate might sustain or incur as a result of the Licensee failing to comply with such undertaking. Confabulate shall comply with equivalent obligations to those contained in Clauses 12.2 to 12.4 in relation to the indemnity in this Clause.

The Licensee shall promptly notify Confabulate if it becomes aware of any breach of confidence by any person to whom the Licensee divulges all or any part of the Information and shall give Confabulate all reasonable assistance in connection with any proceedings which Confabulate may institute against such person for breach of confidence.

Confabulate shall treat as confidential all information supplied by the Licensee under this Agreement which is designated as confidential by the Licensee or which is by its nature clearly confidential.

The obligations in Clauses 13.1 to 13.5 shall not extend to any information which was rightfully in the possession of either party prior to the commencement of the negotiations leading to this Commencement Date or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this Clause). Confabulate shall not divulge any confidential information to any person except to its own employees and then only to those employees who need to know the same. Confabulate shall ensure that its employees are aware of and comply with the provisions of this Clause. The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or this Agreement.

Copying

The Licensee may make only so many copies of the Licensed Programs and Development Software as are reasonably necessary for operational security and use in accordance with the terms of this Agreement. Such copies and the media on which they are stored shall be the property of Confabulate and the Licensee shall ensure that all such copies bear Confabulate's proprietary notices. The Licence shall apply to all such copies as it applies to the Licensed Programs and/or the Development Software as appropriate.

No copies may be made of the Program Documentation without the prior written consent of Confabulate.

Security and control

The Licensee shall during the continuance of the Licence:

effect and maintain adequate security measures to safeguard the Licensed Program Materials and Development Software from access or use by any unauthorised person;

retain the Licensed Program Materials and the Development Software and all copies thereof under the Licensee's effective control; and

maintain a full and accurate record of the Licensee's copying and disclosure of the Licensed Program Materials and Development Software and shall produce such record to Confabulate on request from time to time.

Alterations

Licensee may modify the Licensed Programs at its own expense and responsibility. Licensee shall indemnify and hold harmless Confabulate from and against any and all losses, liabilities, demands, claims, costs and expenses (including reasonable legal costs and disbursements) and damages incurred or suffered by Confabulate and any damages awarded against Confabulate, arising directly or indirectly (and whether in contract or tort including negligence or otherwise) as a result of or in connection with a claim that the use or possession of such modifications infringe the intellectual property rights of any third party.

The Licensee shall promptly notify Confabulate of all such modifications and shall supply to Confabulate without charge copies of all documentation relating to such modifications including specifications and source codes with a right for Confabulate to use such modifications. For the avoidance of doubt, the combination of the Licensed Programs with other programs shall not be a 'modification' unless the Licensee has access to, and has modified, the source code to the Licensed Program.

The Licensee may combine, at its own expense and responsibility, the Licensed Programs with other programs to form a combined work. Any of the Licensed Programs included in the combined work shall continue to be subject to the terms and conditions contained herein. Where such other programs are the property of a third party the Licensee shall be responsible for obtaining all necessary consents to their use with the Licensed Programs. Subject to the compliance by Confabulate with equivalent obligations to those contained in Clauses 12.2 to 12.4 licensee shall indemnify and hold Confabulate harmless from and against any and all losses, liabilities, demands, claims, costs and expenses (including reasonable legal costs and disbursements) and damages incurred or suffered by Confabulate and any damages awarded against Confabulate, arising directly or indirectly (and whether in contract or in tort or otherwise) as a result of or in connection with any claim that the use of the licensed Programs in combination with such other programs infringes the intellectual property rights of any third party. Upon termination of the Licence the Licensee shall completely remove the Licensed Programs from such combined work before returning or destroying it together with the Development Software in accordance with Clause 22.5.

Confabulate shall not be responsible for any error in the Licensed Programs or failure of the licensed Programs to fulfil the Specification insofar as such error or failure occurs in or is caused by any part of the Licensed Programs being modified or combined by Licensee (save where the modification or combination is properly in accordance with Confabulate's written instructions).

Marketing

The Licensee will use its reasonable efforts to actively and properly market and promote the use of the Licensed Programs. Such efforts shall include promotion through the Licensee's press releases, brochures, catalogues, website(s), and other appropriate advertising and marketing media calculated to increase the use of the Licensed Programs by the End Users.

The Licensee shall provide Confabulate with a tentative projection of the quantity of customers that the Licensee reasonably expects to become End Users, which projection shall be in the form of a report on a quarterly basis.

The Licensee shall ensure that its staff are properly trained in accordance with the recommendations of Confabulate. The Licensee shall make available adequate demonstration libraries, equipment and facilities for the marketing of the Licensed Programs.

The Licensee shall ensure that in any marketing or promotion of the Licensed Programs or other press relations relating to it, Confabulate is mentioned as being the developer of the voice over internet protocol software.

Announcements

Any public announcement, communication, circular or other publicity concerning the signing of this Agreement shall be made or despatched at any time by either party with the consent of the other party.

0perating manuals

Confabulate shall provide the Licensee with two copies of a set of operating manuals for the Licensed Programs containing sufficient information to enable proper use of all the facilities and functions set out in the Specification. If the Licensee requires further copies of such operating manuals then these may be obtained under licence from Confabulate in accordance with its standard scale of charges from time to time in force.

Training

Confabulate undertakes to provide basic training in the use of the Licensed Programs and Development Software for the staff of the Licensee.

Any additional training required by the Licensee shall be provided by Confabulate in accordance with its standard scale of charges from time to time in force.

Limitation of Liability

Nothing in the Agreement shall be taken to exclude or limit any party's liability for death or personal injury caused by negligence or any liability for fraudulent misrepresentation or the tort of deceit.

Except as otherwise expressly provided in the Agreement, all warranties, conditions and other terms implied by statute or common law, custom, trade usage course of dealing or otherwise are, to the fullest extent permitted by law, excluded from the Agreement.

Subject to Clause 21.1 neither party shall be liable for:

loss of revenue, loss of business, loss of profits; loss of sales or turnover; loss of or damage to reputation; loss of production; loss of anticipated savings; loss of goodwill or business opportunities; loss of customers; loss of, or loss of use of, any software or data; loss under or in relation to any other contract; and

any sort of consequential, special or indirect loss or damage, costs, expenses or other claims for consequential compensation whatsoever (howsoever caused);

which arise out of or in connection with the Agreement.

Each party's total liability in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise, arising under or in connection with the Agreement shall not exceed an amount equal to the amount of the Licence Fee Confabulate has received from the Licensee in the 12 months proceeding the event (or series of events) giving rise to liability.

The exclusions and limitations of liability in this Clause 21 shall not apply to any failure of the Licensee to pay the Licence Fee due to Confabulate under this Agreement.

Termination

Either party may terminate this Agreement forthwith on giving 90 days notice in writing if the other party commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within 30 days after the receipt of a request in writing to do, to remedy the breach (such request to contain a warning the intention to terminate);

Confabulate may terminate this Agreement forthwith on giving 90 days notice in writing to the Licensee if the Licensee permanently discontinues the use of the Licensed Program Materials.

Either party may terminate this Agreement if the other party shall have a receiver or administrative receiver appointed of it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if that party enters into any voluntary arrangement with its creditors or shall become subject to an administration order or shall cease to carry on business.

Save as expressly provided in Clauses 22.1 to 22.3, or elsewhere in this Agreement this Agreement may not be terminated.

Forthwith upon the termination of the Licence the Licensee shall return to Confabulate the Licensed Program Materials and Development Software including any modifications thereof made by the Licensee and all copies of the whole or any part thereof or, if requested by Confabulate, shall destroy the same (in the case of the Licensed Programs and Development Software by erasing them from the media on which they are stored or destroying such media) and certify in writing to Confabulate that they have been destroyed. The Licensee shall also cause the Licensed Programs and Development Software to be erased and shall certify to Confabulate that the same has been done.

Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

Assignment

The Licensee shall not be entitled to assign, sub-license, sub-contract or otherwise transfer the Licence or this Agreement whether in whole or in part unless with prior written agreement which will not be unreasonably withheld.

Confabulate shall be permitted to assign the whole or any part of the benefit of this Agreement to an Affiliate.

Each party shall be excused non-performance or late performance of its obligations under this Agreement (and the other party shall have no right or remedy in respect thereof) to the extent the same is caused by any circumstances beyond the reasonable control of such party, including without limitation, acts of God, floods, fires, exceptionally inclement weather conditions and natural disasters, strikes, lockouts and other industrial action (other than by the affected party's employees), failure of power, water and other supplies and failures of telecommunications services or other means of communication.

Waiver of remedies

No forbearance, delay or indulgence by either party in enforcing the provisions of this Agreement shall prejudice or restrict the rights of that party nor shall any waiver of its rights operate as a waiver of any subsequent breach and no right, power or remedy herein conferred upon or reserved for either party is exclusive of any other right, power or remedy available to that party and each such right, power or remedy shall be cumulative

Entire agreement

This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding upon the parties unless made by a written instrument signed by a duly authorised representative of each of the parties.

Notices

Any notice or warning affecting this Agreement and any invoices (together, "Notices") will unless otherwise specifically provided in this Agreement be in writing signed by or on behalf of the party giving it and may be served by hand delivery during normal office hours at, or sending it by fax, prepaid recorded delivery or registered post to the address set out above or such other address as the relevant party may from time to time notify in writing to the other party on no less that five business day's notice.

Proof of posting or dispatch of any Notice will be deemed to be proof of receipt in the case of a fax, the business day after dispatch and in the case of recorded delivery or registered post, 48 hours from the date of posting.

Law and jurisdiction

This Agreement shall be governed by and construed in accordance with the laws of England.

Any dispute which may arise between the parties concerning this Agreement shall be determined by the English Courts and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts for such purpose.

Severability

Notwithstanding that the whole or any part of any provision of this Agreement may prove to be illegal or unenforceable the other provisions of this Agreement and the remainder of the provision in question shall remain in full force and effect.

Third Party Rights

Nothing in this Agreement shall confer on any third party any right to enforce any term of this Agreement under the Contract (Rights of Third Parties) Act 1999.

AS WITNESS the hands of the authorised representatives of the parties the day month and year first above written:

SIGNED by )

for and on behalf of )

CONFABULATE LIMITED )

SIGNED by )

for and on behalf of )

[ ] )

SCHEDULE 1

THE SPECIFICATION

SCHEDULE 2

DEVELOPMENT SOFTWARE

SCHEDULE 3