Licensed Works Agreement

This Base Agreement ( “Base Agreement” ) between International Business Machines Corporation ( “Buyer” ) and Avistar Communications Corp.( “Supplier” ), establishes the basis for a multinational procurement relationship under which Supplier will provide the Deliverables and Services described in SOWs and/or WAs issued under this Base Agreement.  This Base Agreement is effective from the last date of mutual execution  ("Effective Date")  and will remain in effect until terminated.

"Affiliates" means entities that control, are controlled by, or are under common control with, a party to this Agreement.

"Agreement" means this Base Agreement and any relevant Statements of Work ( "SOW" ), Work Authorizations ( "WA" ), and other attachments or appendices specifically referenced in this Agreement.

"Code" means computer programming code, including both "Object Code" (computer programming code substantially in binary form that is directly executable by a computer after processing, but without compilation or assembly) and "Source Code" (computer programming code that may be displayed in a form readable and understandable by a programmer of ordinary skill, excluding Object Code).

"Deliverables" means items that Supplier prepares for or provides to Buyer as described in a SOW and/or WA. Deliverables include Licensed Works and Tools.

"Electronic Self-Help" means a process where Supplier electronically disables, removes, or otherwise prevents the use of its software product without the Buyer's or Buyer's Customer's cooperation or consent. Electronic Self-Help could be done through electronic or other means (for example: remotely through "back doors" or hidden entrances in the software or through hidden shut-down commands in the software that can be activated by phone or in other ways).

"Enhancements" means changes or additions, other than Error Corrections, to the Licensed Work. If an Enhancement adds substantial value to the Licensed Work and is offered to customers for an additional charge it will be considered a "Major Enhancement", and all other Enhancements, including those that support new releases of operating systems and devices, will be considered "Basic Enhancements".

"Error Corrections" means revisions that correct errors and deficiencies (collectively referred to as "errors") in the Licensed Work.

"Externals" means any pictorial, graphic, audiovisual works, reports or data generated by execution of code and any programming interfaces, languages or protocols implemented in the code to enable interaction with other computer programs or end users. Externals do not include the code that implements them.

"Licensed Work" is any material described in or that conforms to the Description of Licensed Work in the relevant SOW and/or WA and includes Code, associated documentation, Externals, Error Corrections, and Enhancements.

"Participation Agreement" or "PA" means an agreement signed by one or more Affiliates which incorporates by reference the terms and conditions in this Base Agreement, any relevant SOW, and other attachments or appendices specifically referenced in the PA.

"Personal Data" means any information that may identify an individual.

"Personnel” means agents, employees or subcontractors engaged or appointed by Buyer or Supplier.

"Prices" means the agreed upon payment and currency for Deliverables and Services, exclusive of Taxes but including all applicable fees and royalty payments, as specified in the relevant SOW and/or WA.

"Products" means an offering to customers or other users, whether or not branded by Buyer or its Affiliates that includes the Licensed Work or a derivative work of a Licensed Work.

"Services" means work that Supplier performs for Buyer as described in a SOW and/or WA.

"Statement of Work" or "SOW" means any document that:

1. identifies itself as a statement of work;

2. is signed by both parties;

3. incorporates by reference the terms and conditions of this Base Agreement; and

4. describes the Deliverables and Services, including any requirements, specifications or schedules.

“Taxes” means any and all applicable taxes, charges, fees, levies or other assessments imposed or collected by any governmental entity worldwide or any political subdivision thereof and however designated or levied on sales of Deliverables or Services, or sales, use, transfer, goods and services or value added tax or any other duties or fees related to any payment made by Buyer to Supplier for Deliverables and/or Services

provided by Supplier to Buyer under or pursuant to this Agreement; exclusive, however, of any taxes imposed upon the net income or capital of Supplier, any taxes in lieu of such net income taxes and any other taxes which are to be borne by Supplier under law.

"Tools" means software that is not commercially available, and its Externals, required for the development, maintenance or implementation of a software Deliverable.

"Work Authorization” or "WA" means Buyer’s authorization in either electronic or tangible form for Supplier to conduct transactions under this Agreement in accordance with the applicable SOW (i.e., a purchase order, bill of lading, or other Buyer designated document). A SOW is a WA only if designated as such in writing by Buyer.

Supplier will deliver to Buyer:

1. one complete copy of the Licensed Work described in the relevant SOW and/or WA;

2. a completed Certificate of Originality in the form specified in the SOW with the Licensed Work and with each Enhancement to the Licensed Work;

3. complete copies of all Tools, including updates to Tools as soon as practicable; and

4. a complete list of all commercially available software required for the development, maintenance or implementation of a software Deliverable, including updates to the list as soon as practicable.

Supplier will provide to Buyer, at no additional charge, Basic Enhancements and Error Corrections for the Licensed Work beginning when Buyer accepts the Licensed Work and continuing for the Error Correction Warranty Period specified in the relevant SOW and/or WA. Supplier will also provide to Buyer, at no additional charge, Major Enhancements to the Licensed Work beginning when Buyer accepts the Licensed Work and continuing for the Major Enhancements Warranty Period identified in the SOW and/or WA. After that period, Supplier will offer to Buyer *** of availability Major Enhancements to the Licensed Work that Supplier creates or authorizes others to create *** . If Buyer accepts Supplier's offer, the parties will amend the relevant SOW and/or WA to include such charges, terms and conditions, and the Major Enhancements will become part of the Licensed Work.

Supplier agrees to accept all WA's that conform with the terms and conditions of this Agreement.

Supplier will provide Deliverables and Services to Buyer for the Prices. The Prices for Deliverables specified in a SOW and/or WA and accepted by Buyer plus the payment of applicable Taxes will be the only amount due to Supplier from Buyer. The relevant SOW or WA shall contain Prices for each country receiving Deliverables and Services under this Agreement.

Supplier’s invoices shall state all applicable Taxes, if any, by tax jurisdiction and with a proper breakdown between taxable and non-taxable Deliverables and Services. Supplier assumes responsibility to timely remit all Tax payments to the appropriate governmental authority in each respective jurisdiction. Supplier and Buyer agree to cooperate to minimize, wherever possible and appropriate, any applicable Taxes, and provide reasonable notice and cooperation in connection with any audit. Supplier shall also bear sole responsibility for all taxes, assessments, or other levies on its own income, leased or purchased property, equipment or software. If Buyer provides a direct pay certificate, certification of an exemption from Tax or reduced rate of Tax imposed by an applicable taxing authority, then Supplier agrees not to invoice nor pay any such Tax unless and until the applicable taxing authority assesses such Tax, at which time Supplier shall invoice and Buyer agrees to pay any such Tax that is legally owed.

Buyer shall withhold taxes as required under applicable law on payments made to Supplier hereunder and shall be required to remit to Supplier only the net proceeds thereof. Buyer agrees to remit in a timely

manner all taxes withheld to the appropriate government authority in each respective jurisdiction.

Supplier will reimburse Buyer for any claims by any jurisdiction relating to Taxes paid by Buyer to Supplier; and for any penalties, fines, additions to Tax or interest thereon imposed as a result of Supplier’s failure to timely remit the Tax payment to the appropriate governmental authority in each respective jurisdiction. Supplier shall also reimburse Buyer for any claims made by a taxing jurisdiction for penalties, fines, additions to Tax and the amount of interest thereon imposed with respect to Supplier's failure to invoice Buyer for the correct amount of Tax.

Payment of royalties or invoices will not be deemed acceptance of Deliverables, but rather such Deliverables will be subject to inspection, test, acceptance or rejection in accordance with the acceptance or completion criteria as specified in the relevant SOW and/or WA. Buyer may, at its option, either reject Deliverables that do not comply with the acceptance or completion criteria for a refund, or require Supplier, upon Buyer’s written instruction, to repair or replace such Deliverables, without charge and in a timely manner.

Royalties for Licensed Works will be specified in the relevant SOW and/or WA. Buyer may suspend payments to Supplier for a Licensed Work if Supplier does not provide a properly completed Certificate of Originality. Payment will resume upon Buyer’s receipt of an acceptable Certificate. If Supplier fails to perform any of its obligations, Buyer may reduce any amounts due Supplier by an amount equal *** , or have Supplier *** for *** .

Royalties, if any, are paid against sales recorded by Buyer for a *** . Payment will be made by *** of the *** following the royalty payment *** . All payments will be made in U.S. dollars. Payments based on foreign revenue will be converted to U.S. dollars on a monthly basis at the rate of exchange published by Reuters Financial Service on approximately the same day each month. Terms for payment of any non-royalty payments will be specified in the relevant SOW and/or WA.

Buyer has no royalty obligation for:

(a) the Licensed Work or its derivative works used for:

1. Buyer's or Buyer Personnel’s internal use:

2. development, maintenance or support activities conducted by Buyer or Buyer Personnel, or third parties under contract with Buyer;

3. marketing demonstrations, customer testing or trial periods (including early support, prerelease, encrypted or locked sampler distributions not resulting in a license for full productive use, or other similar programs), Product training or education; or

4. backup and archival purposes;

(b) a copy of the Product installed by a licensed end user on an alternate work station (e.g., home terminal or laptop), provided the end user may not use the Product on both work stations at the same time;

(c) the Licensed Work (or a functionally equivalent work) that becomes available generally to third parties without a payment obligation;

(d) documentation provided with, contained in, or derived from the Licensed Work;

(e) Error Corrections or Basic Enhancements;

(f) warranty replacement copies of the Product; and

(g) Externals.

In the event Buyer provides outsourcing services to licensees of a Product, Buyer *** owe Supplier a *** access to or assignment of a license to such Product or for transfer of the applicable Product to a Buyer

computer system which is of like configuration as the computer system for which the Product was licensed. The foregoing is subject to Buyer providing Supplier notice of such Product to be managed by Buyer and provided the Product will only be used on behalf of the licensee. Upon expiration or termination of the agreement to provide outsourcing services to the licensee, Buyer’s right to use that copy of the Product will end.

Unless otherwise provided by local law without the possibility of contractual waiver or limitation, Supplier will submit invoices, corrected invoices, or other such claims for reimbursement, to Buyer *** from the date of *** or the *** . Exceptions must be specifically authorized by Buyer.

To the extent permitted by local law, the parties will conduct transactions using an electronic commerce approach under which the parties will electronically transmit and receive legally binding purchase and sale obligations ("Documents"), including electronic credit entries transmitted by Buyer to the Supplier account specified in the relevant SOW and/or WA. The parties will enter into a separate agreement governing the transmission of such electronic transactions and associated responsibilities of the parties.

Supplier makes the following ongoing representations and warranties:

1. it has the right to enter into this Agreement and its performance of this Agreement will comply, at its own expense, with the terms of any contract, obligation including any between Supplier and its end-users; or any law, regulation or ordinance to which it is or becomes subject;

2. no claim, lien, or action exists or is threatened against Supplier that would interfere with Buyer’s rights under this Agreement;

3. Deliverables and Services do not infringe any privacy, publicity, reputation or intellectual property right of a third party;

4. it has disclosed to Buyer in writing the existence of any third party code, including without limitation open source code, that is included in or is provided in connection with the Deliverables and that Supplier and the Deliverables are in compliance with all licensing agreements applicable to such third party code;

5. all authors have agreed not to assert their moral rights (personal rights associated with authorship of a work under applicable law) in the Deliverables, to the extent permitted by law;

6. Deliverables are safe for use consistent with and will comply with the warranties, specifications and requirements in this Agreement;

7. Deliverables do not contain harmful code;

8. Services will be performed using reasonable care and skill and in accordance with the relevant SOW and/or WA;

9. it will not engage in Electronic Self-Help;

10. Deliverables and Services which interact in any capacity with monetary data are euro ready such that when used in accordance with their associated documentation they are capable of correctly processing monetary data in the euro denomination and respecting the euro currency formatting conventions (including the euro sign);

11. it is knowledgeable with, and is and will remain in full compliance with all applicable export and import laws, regulations, orders, and policies (including, but not limited to, securing all necessary clearance requirements, export and import licenses and exemptions from, and making all proper filings with appropriate governmental bodies and/or disclosures relating to the release or transfer of technology and software to non U.S. nationals in the U.S., or outside the U.S., release or transfer of technology and software having U.S. content or derived from U.S.-origin software or technology); it is knowledgeable with applicable supply chain security recommendations issued by applicable governments and industry standards organizations and will make best efforts to comply with such recommendations;

12. unless authorized by applicable government license or regulation, including but not limited to any U.S. authorization, Supplier will not directly or indirectly export or reexport, at any time, any technical information, technology, software, or other commodity furnished or developed under this, or any other,

agreement between the parties, or any other product that is developed or produced from or using Buyer’s technical information, technology, software, or other commodity provided under this Agreement to any prohibited country (including release of such technical information, technology, software, or other commodity to nationals, wherever they may be located, of any prohibited country) as specified in applicable export, embargo, and sanctions regulations;

13. it will not use, disclose, or transfer across borders any Personal Data that is processed for Buyer, except to the extent necessary to perform under this Agreement; and

14. it will comply with all applicable data privacy laws and regulations, will implement and maintain appropriate technical and organizational measures and other protections for the Personal Data, (including, without limitation, not loading any Personal Data provided to Supplier on (a) any laptop computers or (b) any portable storage media that can be removed from Supplier’s premises unless (in the case of (b) only) (i) such data has been encrypted and (ii) such data is loaded onto portable storage media solely for the purpos