MASTER SOFTWARE LICENSE, SOFTWARE DEVELOPMENT AGREEMENT, MAINTENANCE AND SERVICES AGREEMENT AND RESELLER AGREEMENT

1.

PARTIES

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2.

TERM

4

3.

DEFINITIONS

4

4.

SCOPE

7

5.

DEVELOPMENT

8

6.

LICENSE

9

8.

PRICE AND PRICE REVISIONS

12

9.

STATEMENTS OF WORK

12

10.

PAYMENT TERMS, BILLING

13

11.

RECORDS AND REPORTS

13

12.

DELIVERY

14

13.

DOCUMENTATION

15

14.

INSPECTION AND ACCEPTANCE

16

15.

MAINTENANCE

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16.

RELATED SERVICES

17

17.

REPRESENTATIONS AND WARRANTIES

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18.

ESCROW

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19.

TERMINATION

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20.

INFRINGEMENT

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21.

CONFIDENTIAL INFORMATION

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22.

PUBLICITY, DISCLOSURE AND SALES SUPPORT

24

23.

COMPLIANCE WITH LAWS, RULES AND REGULATIONS; PRIVACY; USER DATA; CONSUMER CLEAR DISCLOSURE; OWNERSHIP OF MIN AND EMAIL ADDRESSES; AGGREGATE INFORMATION; TRACKING FUNCTIONALITY

25

24.

FORCE MAJEURE

27

25.

ASSIGNMENT

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26.

TAXES

27

27.

PLANT AND WORK RULES AND RIGHT OF ACCESS

28

28.

INDEMNIFICATION

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INSURANCE

30

30.

RELATIONSHIP OF PARTIES

31

31.

NOTICES

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32.

NONWAIVER

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33.

SEVERABILITY

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34.

LIMITATION OF LIABILITY

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35.

SECTION HEADINGS

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36.

SURVIVAL OF OBLIGATIONS

32

37.

COMMITTEES, DESIGNATED MANAGERS, PLAN UPDATES AND ESCALATION OF DISPUTES.

32

38.

CHOICE OF LAW AND JURISDICTION

34

39.

PRECEDENCE OF DOCUMENTS

34

40.

ENTIRE AGREEMENT

34

41.

SIGNATURES

35

1.1 This Master Software License, Software Development Agreement, Maintenance and Services Agreement and Reseller Agreement (hereinafter the “Agreement”) is made between Intellisync Corporation (“Intellisync”), a Delaware corporation, having its principal office at 2550 North First St., Suite 500, San Jose, California 95131, (“Intellisync”) and Cellco Partnership d/b/a Verizon Wireless (“Verizon Wireless”), a Delaware general partnership, having an office and principal place of business at 180 Washington Valley Road, Bedminster, New Jersey 07921 on behalf of itself and for the benefit of its Affiliates.

1.2 An Affiliate that issues an SOW hereunder may enforce the terms and conditions of this Agreement with respect to any Software or Related Service purchased by such Affiliate as though it were a direct signatory to the Agreement.

3.1  “Acceptance” or “Accepted” means delivery to Intellisync by Verizon Wireless of its written certificate of acceptance pursuant to Section 14.

3.2  “Affiliate” means any entity that controls, is controlled by, or is under common control with Verizon Wireless; provided, however that, unless otherwise stated herein, Affiliate does not include Vodafone.

3.3  “Aggregate Information” shall mean usage data or other information about multiple Users that does not contain Personally Identifiable Information.

3.4  “API” means application program interface.

3.5  “Behind the Firewall Enterprise Model” means the model of deploying the Customized Software where the server portion of the Customized Software is maintained behind an enterprise firewall.

3.6  “Customer” means both Enterprise and Individual Customers, as each is defined herein.

3.7  “Customized Software” means an altered to specification version of the Software, in Object Code, to be distributed to Verizon Wireless and to Users pursuant to the terms of this Agreement.

3.8  “Deployment Models” means the three (3) models that Verizon Wireless will use to deploy the Customized Software to its Customers: (a) Individual Monitor Model, (b) Workgroup Monitor Model, and (c) Behind the Firewall Enterprise Model. “Deployment Models” does not include the Hosted Enterprise Model, however, this option is available to Verizon Wireless to be implemented at some point in the future.

3.9  “Documentation” means, whether in print or in electronic form: (i) Intellisync’s then current published specifications; (ii) user, maintenance and system administration documentation including but not limited to user guidelines, operating manuals, training manuals and technical materials; and (iii) any and all revisions to the above.

3.10  “Email Addresses” means the email addresses created by Users using the Customized Software as contemplated by the terms of this Agreement.

3.11  “Enterprise Customer” is a Verizon Wireless customer that elects to install the Customized Software: (i) inside of the enterprise firewall, (ii) within the enterprise network, or (iii) software and users managed via the enterprise internal IT department.

3.12  “Error” means failure of the Customized Software to perform in accordance with the Specifications.

3.13  “Hosted Enterprise Model” means a model of deploying the Customized Software where the enterprise servers are hosted outside of the enterprise firewall.

3.14  “Individual Customer” means a Verizon Wireless customer that is an individual User, not an Enterprise Customer.

3.15  “Individual Monitor Model” means a model of deploying the Customized Software where the Customized Software is located on an individual User’s personal computer and the server is maintained by Intellisync.

3.16  “Intellisync Marks” means those trademarks of Intellisync which are set forth on Exhibit C hereto, and such other trademarks, if any, that Intellisync may from time-to-time identify for Verizon Wireless, in writing, as being “Intellisync Marks” within the meaning of this Agreement.

3.17  “Maintenance” means those services provided by Intellisync in accordance with Section 15.

3.18  “Object Code” means computer code substantially in binary form, and includes header files of the type necessary for use or interoperation with other computer programs. It is directly executable by a computer after processing or linking, but without compilation or assembly.

3.19  “Outstanding SOW” means an SOW for which Acceptance has not occurred.

3.20  “Party” means either Verizon Wireless or Intellisync, as the context requires; both Verizon Wireless and Intellisync may be collectively referred to as the “Parties.”

3.21  “Personally Identifiable Information” means: (a) information about a Customer that identifies him or her (or it, in the case of an Enterprise) as a unique individual (e.g., stating his or her name, credit card number, social security number, user ID, or electronic serial number), or (b) contact information identifying the Customer as a unique individual (e.g., his or her phone number, mobile directory number, physical address, email address or alias email address).

3.22  “PI Engine” has the meaning ascribed to it in Exhibit A as the server software and APIs that manage the personalized information feature of the Customized Software allowing for the delivery of content, such as weather, maps, driving directions and travel itineraries to devices.

3.23  “Project” means all of the services and deliverables contemplated by this Agreement.

3.24  “Related Services” means installation, implementation, technical support, maintenance, modification, training, repair and other services related to the Customized Software that Intellisync will provide to Verizon Wireless hereunder.

3.25  “Release” means all new versions and successor products containing substantially similar functionality to that in the Software as described in Exhibit A and provided under Maintenance. Release does not include unrelated additional functionality that Intellisync makes available for a separate, additional license fee above the license fee Intellisync generally charges third parties for the Software.

3.26  “Self-Help Code” means any back door, “time bomb”, drop-dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of a person other than a licensee of the program. Self-Help Code does not include software routines in a computer program, if any, designed to permit the licensor of the computer program (or other person acting by authority of the licensor) to obtain access to a licensee’s computer system(s) (e.g., remote access via modem) for purposes of maintenance or technical support.

3.27  “Software” means the computer programs and applications, in Object Code form, including, but not limited to Intellisync Email Accelerator (IEA), Intellisync Systems Management, Intellisync File Sync, and Intellisync Personalized Information Engine, and as may be described in Exhibit A or in an SOW, and which shall include, but not be limited to, all operating programs, Updates and Documentation and all media on which it may be recorded or stored.

3.28  “SOW” means a statement of work between and signed by the Parties in substantially the form attached hereto as Exhibit E, which is a purchase order, written order or other communication and/or electronic transmission from Verizon Wireless to Intellisync for the license or purchase from Intellisync of Software and/or Related Services.

3.29  “Specifications” means Documentation and the functional performance capabilities, capacities and specifications, including any testing and acceptance criteria or benchmark test results, for the Software or Related Service set forth in this Agreement, in an SOW, or in an applicable Intellisync response or proposal.

3.30  “Unauthorized Code” means any virus, Trojan horse, spyware, worm, or any other software routines or hardware components designed to permit unauthorized access to disable, erase, or otherwise harm software, hardware, or data or to perform any other such actions. The term Unauthorized Code does not include Self-Help Code.

3.31  “Updates” means all patches fixes, corrections, improvements, upgrades and updates relating to such Customized Software, as well as refinements, changes and corrections to the Customized Software as are required to keep the Customized Software in conformance with the applicable Specifications and that are created by Intellisync as corrections for defects in the Customized Software that are provided under Maintenance. Updates does not include unrelated additional functionality that Intellisync makes available for a separate, additional license fee above the license fee Intellisync generally charges third parties for the Customized Software.

3.32  “Use” means: (i) to read into or out of hardware memory and execute the Customized Software whether in whole or in part; (ii) to transfer into, and store in, equipment selected by Verizon Wireless all or any portion of the Customized Software; and (iii) to process and execute instructions, statements and data included in or output to the Customized Software.

3.33  “User” is an individual who has activated the Customized Software (whether an Individual Customer or an individual user who is part of an Enterprise Customer).

3.34  “User Data” means all information, whether Aggregate Information or personally identifiable information (including, but not limited to the MIN, the MDN or the Email Address), generated or collected by or for Verizon Wireless: (a) under the terms of any Verizon Wireless User agreement, (b) in connection with a Verizon Wireless User’s use of the Verizon Wireless Services and the Customized Software, and/or (c) under stand-alone terms and conditions, the terms and conditions of a Verizon Wireless customer agreement or under a similar agreement.

3.35  “Verizon Wireless Marks” means those trademarks of Verizon Wireless and/or Verizon Communications which are set forth on Exhibit C hereto, and such other trademarks, if any, that Verizon Wireless may from time-to-time identify for Intellisync, in writing, as being “Verizon Wireless Marks” within the meaning of this Agreement.

3.36  “Workgroup Monitor Model” means a model of deploying the Customized Software where the Customized Software is located on a personal computer for a small group of users and a server is hosted by either Intellisync or a third party.

3.37  “Warranty Period” means the period of time set forth in Section 17.2.4 unless a longer period is set forth in an SOW.

4.1 This Agreement is for the benefit of Verizon Wireless, its agents and its Affiliates (collectively “Verizon Wireless”). Verizon Wireless may license the Customized Software and purchase Intellisync’s Related Services for its own use and service, and for the use and service of its licensees, as set forth herein. Such Customized Software may be used to provide services to third parties.

4.2 This Agreement is a nonexclusive and “as ordered” contract. It is not intended and shall not be construed to require Verizon Wireless to purchase any specific amount of Software or Related Services from Intellisync. There is no minimum order quantity or volume required from Verizon Wireless when ordering Software and Related Services, unless specified otherwise in an exhibit.

4.3 Verizon Wireless may submit an additional SOW for any Software and/or Related Service listed in Exhibit A and Intellisync shall fulfill the SOW at the prices specified. If an SOW submitted by Verizon Wireless to Intellisync conforms to the requirements of Section 9, is within the guidelines for Software or Related Service quantities and for the price or prices set forth in Exhibit A, and does not make a material change to any of the terms of this Agreement applicable to such SOW, then Intellisync shall be obligated to accept the SOW as issued and also to acknowledge its receipt within two (2) days, without further conditioning, acceptance, or acknowledgement on Verizon Wireless’ acceptance of any terms or conditions inconsistent with, or in addition to, those set forth in this Agreement.

4.4 Under no circumstances shall any Intellisync shrink-wrap and/or click-wrap license be given any force or effect in connection with any Software delivered to Verizon Wireless pursuant to this Agreement, and Verizon Wireless specifically rejects all such licenses and replaces their terms with the terms of this Agreement.

4.5 Initial Delivery Commitment. Intellisync commits to develop and deliver the initial delivery of the Customized Software as described in the Customized Software delivery schedule, and to make the hosting of the initial delivery of Customized Software available as of April 30, 2004 (the “Initial Delivery”). Verizon Wireless agrees to work in good faith to allow Intellisync to meet the April 30, 2004 date, and will use commercially reasonable efforts to provide Intellisync with all assistance reasonably requested by Intellisync in a timely manner. If the Initial Delivery date is not met, then Intellisync will “refund” the Customized Software Development Fee described in Exhibit A. Verizon Wireless acknowledges that Intellisync has satisfied its obligations under this Section 4.5, and that Verizon Wireless is not and will not seek the refund described in this Section 4.5.

5.1 Customized Software. The Customized Software will include the following services as per the Customized Software Specifications: (a) system implementation, (b) customization of the authentication process, (c) integration of the Verizon Wireless website with the Intellisync User home page, (d) the Software Product Functionality Document and (e) branding as “powered by Intellisync” per Intellisync’s branding guidelines for the Software.

5.2 Future Customizations. Verizon Wireless may request additional customization work to the Customized Software by agreeing to an SOW with Intellisync. Such additional customization will be performed under and governed by the terms of the SOW, at Intellisync’s then-current rates for such services, unless otherwise stated in the SOW.

5.3 Continued Customized Software Branding. Branding will include the “Powered by Intellisync” logo in those places specified by the Parties as agreed to in the Intellisync branding kit, attached hereto as Exhibit H.

5.4 Device Compatibility.

5.4.1 Within 30 days of the Effective Date the Parties will meet to discuss device roadmap requirements and Customized Software compatibility and establish a matrix of those devices which shall be supported by this Project. The Parties further agree to hold monthly meetings, as mutually agreed by the parties, for exposure to new device roadmaps, to prioritize devices for support, as determined by Verizon Wireless, and to discuss testing, device operating system client support requirements and demonstration units. Verizon Wireless will provide Intellisync with all devices and operating systems upon any changes to the devices or operating systems which Verizon Wireless deems as requiring re-certification. The device and operating system testing methodology is attached hereto as Exhibit 1 to Exhibit F to this Agreement. The Parties acknowledge that the testing methodology can be updated and modified upon mutual agreement of the parties. The Parties acknowledge that the Customized Software does not work on all mobile devices; rather, it works on those certified by Intellisync as compatible with the Customized Software. The Customized Software created by Intellisync will work with all devices that it has certified as compatible with the Software in its Product Functionality Document (Exhibit G to this Agreement) as of the Effective Date. For so long as Intellisync is providing managed services, Intellisync and Verizon Wireless shall continue to identify areas for Intellisync’s continuous improvement in cost, quality and service over the Term of the Agreement. Intellisync shall afford Verizon Wireless the ability to realize the benefit of such improvements, including possible price reductions, to the extent the Parties mutually agree. Furthermore, a list of continuous improvement initiatives may be created by the Parties. Unless otherwise set forth in this Agreement, Intellisync and Verizon Wireless may meet, as mutually agreed, to assess opportunities to implement potential continuous improvement initiatives and customer satisfaction issues, such initiatives and issues to be mutually agreed to by the Parties. Any device provided to Intellisync by Verizon Wireless shall

not be used for the purpose of developing or certifying software over other wireless networks, and such devices are strictly protected under the confidentiality provisions of this Agreement.

5.4.2 Intellisync will make commercially reasonable efforts to provide a version of the Customized Software that will be compatible with any Verizon Wireless device that is based on the Palm and Microsoft operating systems, including all updates to such operating systems.

5.4.3 For devices which do not fall under Section 5.4.1 or 5.4.2, Verizon Wireless may request that Intellisync create a compatible version of the Customized Software for another such device for a mutually agreed upon fee. Verizon Wireless must provide Intellisync with at least ninety (90) days written notice of the model, device number, manufacturer and intended launch date of such device.

5.4.4 For devices falling under Section 5.4.2 or 5.4.3, Verizon Wireless must provide Intellisync, at no charge, with at least ten (10) activated devices for which Intellisync is making the Customized Software compatible, for purposes of development, testing and ongoing support of the Customized Software on such device. Devices and activated accounts will be provided back to Verizon Wireless and closed accordingly, upon the request of Verizon Wireless.

5.5 Personalized Information Options. Verizon Wireless shall have the following options for offering Users a personalized content service using the Customized Intellisync Personalized Information Engine:

5.5.1 Full Feature. Verizon Wireless may offer Users both the Customized Intellisync PI Engine and all of Intellisync's personalized information content from existing sources; or

5.5.2 Component Approach. Verizon Wireless may offer Users the Customized Intellisync PI Engine without any of Intellisync's personalized information content from existing content sources under existing content terms; provided, however, subject to said third party content providers' agreement, Intellisync agrees to make the APIs between the PI Engine and the third party content providers' sources available to Verizon Wireless at no additional cost.

6.1 License Grant.

6.1.1 Internal Use License. Intellisync hereby grants to Verizon Wireless a world-wide, non-exclusive, nontransferable (except in connection with a permitted assignment of this Agreement) license for the Term to use the Customized Software. The aforesaid license includes all future releases, updates and upgrades provided through maintenance services offered by Intellisync for the Customized Software, for Verizon Wireless for its demonstration and use of the Customized Software at any of its locations in a Behind the Firewall Enterprise Installation for Users who are employees or contractors of Verizon Wireless. Verizon Wireless shall not sublicense the Customized Software under this Section. First and second level technical support for this Internal Use License shall be provided by Verizon Wireless’ internal IT department, with Intellisync providing third level technical support. Any internal use by Verizon Wireless’ agents shall be for demonstration purposes only. The licenses shall remain in effect for so long as Verizon Wireless satisfies its payment obligations hereunder.

6.1.2 License to Resell, Sublicense. Intellisync hereby grants to Verizon Wireless, a world-wide license to resell, and thereby sublicense (through Verizon Wireless Affiliates), the Customized Software to its Customers and Users via the Deployment Models so that the Users may use the Customized Software. Each such sublicense to a User shall be pursuant to a written

end user license agreement which protects Intellisync’s proprietary rights in the Customized Software in a manner which is consistent with the terms and conditions of this Agreement and which is at least as protective of Intellisync’s rights as those contained herein. The User shall be required to affirmatively agree to the terms of such license before downloading or installing the Customized Software. The licenses shall remain in effect for so long as Verizon Wireless satisfies its payment obligations hereunder.

6.1.3 Evaluation License. Without obligation to pay any additional fees, Verizon Wireless may sublicense the Customized Software to Enterprise Customers that it has pre-qualified as prospective customers of the Customized Software pursuant to prequalification requirements mutually agreed upon by Verizon Wireless and Intellisync. In such instances, the prospective Enterprise Customer may allow up to five (5) Users to evaluate the Customized Software for up to thirty (30) days. Verizon Wireless will report (at the Parties’ quarterly meetings) to Intellisync which Enterprise Customers are evaluating the Customized Software and the results of such evaluations. At the conclusion of the evaluation period, Verizon Wireless will terminate the Users rights’ to use the Customized Software unless the Enterprise Customer has entered into a valid agreement to purchase rights to continue use of the Customized Software. Each such sublicense to a User shall be pursuant to a written end user license agreement which protects Intellisync’s proprietary rights in the Customized Software in a manner which is consistent with the terms and conditions of this Agreement and which is at least as protective of Intellisync’s rights as those contained herein. The User shall be required to affirmatively agree to the terms of such license before downloading or installing the Customized Software.

6.1.4 Verizon Wireless shall also have the right, at no additional charge, to Use the Customized Software by means of remote electronic access at locations other than the locations at which the Customized Software is stored. Intellisync also grants to Verizon Wireless the right to authorize Use or to transfer or sublicense such license to its subcontractors, agents, contractors, outsourcing entities and others for use when performing services for Verizon Wireless. In addition, if Verizon Wireless transfers or assigns the Customized Software to an Affiliate or a third party in connection with the provision or support of network services, then the license granted hereunder shall extend to such transferee or assignee. No such authorization, transfer or sublicense shall release Verizon Wireless from its obligations hereunder.

Additionally, Verizon Wireless shall have the right to distribute the Software, including the email services, through its direct and indirect distribution channels, including its agents.

6.2 License Term . Unless otherwise stated in any SOW, the term of each Customized Software license granted under this Agreement or any SOW shall commence on the applicable delivery date, or such other date as set forth in an SOW, and shall remain in effect during the Term, provided however, the termination of this Agreement or any SOW shall not affect the ability of a User to use the Customized Software, so long as Verizon Wireless is providing the hosting of the Customized Software.

6.3 Bankruptcy Code 365(n) .

All rights and licenses granted under or pursuant to this Agreement or any SOW by Intellisync to Verizon Wireless are, and shall otherwise be deemed to be, for the purposes of Section 365(n) of the United States Bankruptcy Code (“Code”), licenses to rights to “intellectual property” as defined in the Code. The Parties agree that Verizon Wireless, as licensee of such rights under this Agreement, shall retain and may fully exercise all of its rights and elections under the Code. The Parties further agree that, in the event of a bankruptcy proceeding by or against Intellisync under the Code, Verizon Wireless shall be entitled to retain all of its rights (including all licenses) under this Agreement

and/or any SOW. Time is of the essence. In the event of filing a petition for relief under the Code, Intellisync shall assume or reject the Agreement within thirty (30) days.

6.4 Restrictions. Verizon Wireless shall not copy, use, modify, distribute, resell, or access the Customized Software except as expressly permitted in this Agreement. Verizon Wireless will not, and will not cause or permit any Verizon Wireless contractor to, copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the Customized Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the Customized Software or any trade secret information or process contained in the Customized Software or remove any product identification, copyright or other notices. Verizon Wireless shall not create any derivative works based on the Customized Software unless such derivative works are the subject of a signed agreement between the Parties.

6.5 Exclusivity on Individual Monitor Model. Intellisync will not license to any United States based wireless cellular telephone provider any customized version of the Software which would enable such wireless cellular provider to provide its subscribers with an Individual Monitor Model prior to July 20, 2004.

6.6 Software Ownership . As between the Parties, Intellisync and its licensors shall retain all right, title and interest in the Software and Customized Software, Documentation, and all copies and derivative works thereof (except any derivative works created by Verizon Wireless subject to a separate SOW between the Parties), including, without limitation, all patent, copyright, trade secret, trademark, and all other proprietary and intellectual property rights therein. Except as expressly permitted under this Agreement, Intellisync and its licensors reserve all, and Verizon Wireless does not acquire any, rights, express or implied, in the Software, Customized Software or Documentation. Except as otherwise stated in this Agreement, Verizon Wireless shall have no right to receive any source code with respect to the Software or Customized Software.

7.1 Verizon Wireless Marks License . Subject to Section 7.3 directly below, Verizon Wireless hereby grants Intellisync the non-exclusive, royalty free, personal, revocable, non-transferable right to use, reproduce, publish, perform and display the Verizon Wireless Marks during the Term in connection with the development, use, reproduction in promotional and marketing materials, content directories and indices, electronic and printed advertising, publicity, newsletters and mailings, only with the prior written consent of Verizon Wireless and only in accordance with the procedures and guidelines set forth in Section 7.3 below.

7.2 Intellisync Marks License . Subject to Section 7.3 directly below, Intellisync hereby grants Verizon Wireless the non-exclusive, royalty free, personal, revocable, non-transferable right to use, reproduce, publish, perform and display the Intellisync Marks in connection with the development, use, reproduction in promotional and marketing materials, content directories and indices, electronic and printed advertising, publicity, newsletters and mailings, only with the prior written consent of Intellisync and only in accordance with the procedures and guidelines in Section 7.3 below.

7.3 Use of Marks . Prior to the first use of any of the other Party’s Marks in the manner permitted herein, the Party using such Marks shall submit a sample of such proposed use to the other Party for its prior written approval. Following any such “first use” of a Party’s Mark as described above, the using Party shall not be required to gain the owning Party’s approval to use the Mark provided the use is substantially similar to the first use.

7.3.1 In addition, if there are modifications to the use of a Party’s Marks after the first approved use of such Marks, such modifications must be submitted to the owner of such Marks for approval prior to the modified use.

7.3.2 Without limiting the generality of the foregoing, each Party shall strictly comply with all standards with respect to the use of the other Party’s Marks which may be furnished by such Party from time-to-time, and all uses of the other Party’s Marks in proximity to the trade name, trademark, service name or service mark of any other person shall be consistent with the standards furnished by the other Party from time-to-time.

7.3.3 Further, neither Party shall create a combination mark consisting of one or more Marks of the other Party.

7.3.4 All uses of the other Party’s Marks shall inure to the benefit of the Party owning such Mark. Each Party hereby acknowledges and agrees that, as between the Parties hereto, the other Party is the owner of the Marks identified as its Marks on the applicable Exhibit to this Agreement, and all goodwill associated therewith shall inure to the benefit of the Party owning said Marks.

7.3.5 Either Party may update or change the list of Marks usable by the other Party hereunder at any time by written notice to the other Party.

7.3.6 During the Term of this Agreement, neither Party shall use, register, or attempt to register, in any country, any name or trademark identical or confusingly similar to the other Party’s Marks. The owner Party shall have the sole right to and in its sole discretion may control any action concerning its Marks.

7.3.7 Any materials, activities, products, or services distributed or marketed by a Party in conjunction with the other Party’s Marks shall: (i) meet all terms of this Agreement, (ii) meet or exceed standards of quality and performance generally accepted in the industry, and (iii) comply with all applicable laws, rules, and regulations. Each Party shall fully correct and remedy any deficiencies in its use of the other Party’s Marks and/or the quality of any materials, activities, products, or services it offers or markets in conjunction with the other Party’s Marks, upon reasonable notice from the other Party.

8.1  The prices for all Customized Software or Related Service ordered by Verizon Wireless are those prices set forth in Exhibit A and there shall be no price increases during the Term of this Agreement on Customized Software or Related Services ordered under this Agreement.

8.2  For the Term of this Agreement, *** Intellisync represents and warrants that ***. If during the Term of this Agreement ***.

8.3  Any price decrease or discount increase shall be effective immediately upon announcement by Intellisync. Such pricing shall apply to all SOWs that have not been invoiced by Intellisync. Notice of price decrease shall be given both in writing and in the Verizon Wireless-defined electronic format and addressed or directed to the respective Parties indicated in Section 29.

9.1 Intellisync may enforce each SOW only against the Affiliate that has submitted the SOW. Default shall not affect any other Affiliate party to this Agreement.

9.2 Unless expressly set forth in an exhibit or SOW, Verizon Wireless may cancel or reschedule SOWs for convenience, in whole or in part, by providing written notice to Intellisync at least fifteen

(15) days before scheduled ship date of Customized Software or date Related Services, including but not limited to maintenance services, are to be rendered. In such case, Verizon Wireless shall pay Intellisync all expenses and costs, including Intellisync’s professional services expenses (such expenses to be billed on a time and materials basis at Intellisync’s then existing hourly rates or those hourly rates as stated in the SOW) associated with the work performed by Intellisync through the date of termination. If the charges for such terminated SOWs were paid in advance, Intellisync shall promptly refund remaining charges to Verizon Wireless after deducting Intellisync’s above-mentioned costs and expenses.

9.3 Modification of and SOW by Verizon Wireless or its Affiliates will extend the date of delivery of Customized Software and/or Related Services.

10.1 Intellisync shall render invoices following the date of Acceptance. Payment for Software of Related Services shall be due sixty (60) days from date of receipt of an undisputed invoice, unless payment terms more favorable to Verizon Wireless are stated on Intellisync’s invoice and Verizon Wireless elects to pay on such terms. Payment for Related Service shall be due sixty (60) days after receipt of an undisputed invoice. However, payment shall not indicate acceptance of any Software or Related Service performed.

10.2 Invoices for charges specified in an SOW shall be submitted by Intellisync to the address specified in the SOW. Invoices shall include, but not be limited to, (a) SOW number; (b) Software description and identification number; (c) ship to name and address; (d) delivery method (i.e., electronic or physical); (e) date of delivery (f) quantity shipped and billed or quantity of service units performed and billed; (g) maintenance service details; (h) net unit cost; (i) discounts applied; (j) net invoice amount; (k) contract information for invoice disputes; and such other detail as Verizon Wireless may request.

11.1 Intellisync shall maintain complete and accurate records of all invoices, all amounts billable to and payments made by Verizon Wireless, in accordance with generally accepted accounting practices. Intellisync shall retain and make available upon request such records for a period of *** from the date of acceptance of the Software or rendering of Related Services covered by this Agreement.

11.2  Intellisync shall permit a mutually agreed upon third party certified public accountant to examine and audit such records at all reasonable times as may reasonably be required to verify compliance with this Agreement, at such times as Verizon Wireless may reasonably request upon reasonable written notice. Intellisync shall have the right to require the aforesaid third party CPA to enter into a non-disclosure agreement with Intellisync, prior to conducting the audit. Verizon Wireless shall pay the cost of audits unless the audit reveals that Verizon Wireless has made an overpayment in excess of *** due for any ***, in which event Intellisync shall reimburse Verizon Wireless for the cost of such audits in addition to all other amounts to which Verizon Wireless may be legally entitled. Audits shall not unreasonably interfere with Intellisync’s business activities, and shall not be conducted more than *** in any *** period. However, in the event prior audits indicate problems with record keeping, reporting and/or payment, said audits shall not be limited to *** in any *** period until such time as a subsequent audit reflects a proper accounting. The books and records being audited, as well as the results of the audit shall be considered Confidential Information of Intellisync disclosed to Verizon Wireless under the terms of this Agreement.

11.3  Verizon Wireless agrees to keep complete and accurate books and records of all Users of the Customized Software as necessary to demonstrate Verizon Wireless’s compliance with this Agreement. Verizon Wireless shall permit a mutually agreed upon third party certified public accountant to audit copies of Verizon Wireless’ books and records as may reasonably be required to verify compliance with this Agreement, at such times as Intellisync may reasonably request upon reasonable written notice. Verizon Wireless shall have the right to require the aforesaid third party CPA to enter into a non-disclosure agreement with Verizon Wireless, prior to conducting the audit. Intellisync shall pay the cost of audits unless the audit reveals under-reporting by *** or more of the amount due for any month, in which event Verizon Wireless shall reimburse Intellisync for the cost of such audits in addition to all other amounts to which Intellisync may be legally entitled. Audits shall not unreasonably interfere with Verizon Wireless’s business activities and shall not be conducted more than *** in any *** period. However, in the event prior audits indicate problems with record keeping, reporting and/or payment, said audits shall not be limited to *** in any *** period until such time as a subsequent audit reflects a proper accounting. The books and records being audited, as well as the results of the audit shall be considered Confidential Information of Verizon Wireless disclosed under the terms of this Agreement.

12.1 Delivery.

12.1.1  Unless otherwise specified in an SOW, shipment of Software shall be made electronically. Where delivery in other than electronic format is specified in an SOW, shipment of Software shall be FOB Verizon Wireless designated location, freight prepaid, and added to Verizon Wireless’ invoice. Intellisync shall select a carrier based on the best rate as negotiated by Intellisync, and Verizon Wireless shall only pay Intellisync’s actual net transportation costs, reduced by any and all setoffs, including but not limited to, all applicable discounts, allowances and refunds. Failure to ship in accordance with Verizon Wireless’ instructions may result in charge backs to Intellisync.

12.1.2  The Parties agree and understand that time is of the essence for Software purchased pursuant to this Agreement. Delivery intervals as set forth in this Agreement or an SOW shall begin from the date of Intellisync’s receipt of Verizon Wireless’ SOW.

12.1.3  Unless instructed otherwise by Verizon Wireless, Intellisync shall, for SOWs placed: (a) see that all subordinate documents bear Verizon Wireless’ SOW number; (b) enclose a packing list with each shipment and when more than one package is shipped, identify the one containing the packing list; (c) mark Verizon Wireless’ SOW number on all packages and shipping papers; (d) render invoices showing Verizon Wireless’ SOW number; (e) render separate invoices for each shipment or SOW; (f) forward shipping notices with invoices; (g) invoice Verizon Wireless by mailing or otherwise transmitting invoices, bills, and notices to the billing address on the SOW; and (h) make available a bill of lading upon request.

12.1.4  Intellisync shall ship the Customized Software to Verizon Wireless as authorized pursuant to this Agreement or an SOW. If the Customized Software is delivered ahead of the delivery date, Verizon Wireless may withhold payment for the Customized Software until after the specified delivery date and, if necessary, place the Customized Software in storage, at Intellisync’s expense, until the specified delivery date.

12.1.5  Where delivery in other than electronic format, the Customized Software shall be packaged for shipment, at no additional charge, in commercially suitable containers, consistent with all applicable laws, that provide protection against damage during the shipment, handling and storage of the Software.

12.2 Late Delivery.

If Intellisync fails to deliver to Verizon Wireless the Customized Software on or before the ordered delivery date, Verizon Wireless may either cancel the SOW or extend such ordered delivery date to a subsequent date and may require an expedited delivery, with any additional costs to be borne by Intellisync, unless such failure to deliver or the delay is caused by a party other than Intellisync, its Affiliates or agents. If Verizon Wireless elects to extend the ordered delivery date due to Intellisync’s failure to timely deliver the Customized Software, the Parties agree that Intellisync will pay Verizon Wireless a performance compensation payment in an amount equal to *** of the maximum dollar amount available under the related SOW for each week or part thereof of delay occurring after the ordered delivery date originally specified on the SOW until either the delivery date or the date on which Verizon Wireless cancels the SOW, whichever first occurs. Under normal circumstances resort to, and utilization of, performance compensation payments shall preclude the subsequent exercise of the cure period set forth in Section 19.1 for the specific Intellisync failures for which performance compensation payments have been assessed and reimbursed. However, such failures shall be counted in determining the repeated, consistent or cumulative failure of Intellisync to meet the performance requirements of this Agreement or the requirement that Intellisync cure the specific failure to perform for which performance compensation payments were assessed. In consideration of the fact that damages sufferable by Verizon Wireless as the result of late delivery may be difficult to discern, the aforesaid performance compensation payments shall be deemed liquidated damages and not a penalty.

12.3 Risk of Loss.

Intellisync shall bear the risk of loss of or damage to the Customized Software until receipt of all Customized Software specified in an SOW. Intellisync shall promptly replace such Software when lost or damaged at no additional charge.

13.1 For so long as Verizon Wireless is receiving Maintenance, with each license of Software ordered hereunder, Intellisync shall support the Software by maintaining and providing to Verizon Wireless, at no additional charge, copies of all Documentation, in a machine readable format unless another format is agreed to by Verizon Wireless, which is provided by Intellisync to any of its other customers for the Software. Documentation shall comply with commonly accepted industry standards with respect to content, size, legibility and reproducibility. For so long as Verizon Wireless is receiving Maintenance, Intellisync shall provide, at no additional charge, all future updates of such Documentation. Verizon Wireless shall have the right to reproduce all Documentation including all machine-readable documentation for the Customized Software, provided that such reproduction is made solely for Verizon Wireless’ permitted uses hereunder. Any such reproductions shall include any copyright or similar proprietary notices contained on the items being reproduced. Documentation shall include, but not be limited to, the following areas:

13.1.1 Administration;

13.1.2 Features and technical specifications;

13.1.3 Installation and testing criteria;

13.1.4 Operations, provisioning;

13.1.5 Maintenance and diagnostics; and

13.1.6 Other documentation mutually deemed necessary by the Parties to support the installation, acceptance testing, administration, maintenance and engineering and operation of the Software.

13.2 Intellisync shall maintain a record of Software Documentation that has been distributed among Verizon Wireless’ personnel and provide updates of such Documentation, at no additional charge, in accordance with that record.

13.3 Intellisync hereby grants to Verizon Wireless a fully paid-up license, at no additional charge, to copy or otherwise reproduce all or portions of the Documentation for use in accordance with the license granted in Section 6. Any such reproductions shall retain any copyright or similar proprietary notices contained on the items being reproduced.

14.1 Benchmark Testing.

Upon Verizon Wireless’ request, before Verizon Wireless places an order, Intellisync shall, at no cost to Verizon Wireless, demonstrate the functional capabilities of the Software at agreed times and places. The result of this demonstration or benchmark test may, at Verizon Wireless’ option, be incorporated into the SOW.

14.2 Inspection and Acceptance Testing.

All Customized Software delivered shall be subject to inspection and Acceptance by Verizon Wireless to determine if the Customized Software functions in all material ways in conformity with the Specifications (collectively “Acceptance Test Criteria”). Inspection or failure to inspect shall not be deemed Acceptance of Customized Software. Verizon Wireless’ right to test does not relieve Intellisync from its testing, inspection and quality control obligations. Verizon Wireless shall certify to Intellisync Acceptance of the Customized Software upon the successful achievement of the performance standards set forth below.

14.2.1 If the Customized Software, including any Update is to be installed by Verizon Wireless, Verizon Wireless shall have *** following delivery, within which to perform acceptance testing of the Customized Software to determine its conformity with the Acceptance Test Criteria.

14.2.2  If the Customized Software, including any Update is to be installed by Intellisync, Verizon Wireless shall have *** following successful conclusion of Intellisync’s standard test procedures (or other mutually agreed upon evaluation and test procedures set forth in an SOW) within which to perform acceptance testing of the Customized Software to determine its conformity with the Acceptance Test Criteria.

14.3 If Software successfully conforms to the Acceptance Test Criteria, Verizon Wireless shall notify Intellisync in writing of its acceptance of the Customized Software (“Acceptance”). If the Customized Software fails the test procedures, Verizon Wireless may, provide notice to Intellisync rejecting such Customized Software. Following such notification, Verizon Wireless may, at its option: (a) return the Customized Software to Intellisync within ***, at Intellisync’s risk and expense, and receive a full refund of all amounts paid with respect to returned Customized Software and Related Services; or (b) grant Intellisync the opportunity to correct all deficiencies by repairing or replacing any non-conforming Customized Software, within *** for material launch impacting issues; or (c) grant Intellisync the opportunity to correct all deficiencies by repairing or replacing any non-conforming Customized Software, within ***, or within such other time as the Parties may agree, for all other issues. If Verizon Wireless grants Intellisync such opportunity and after the cure period the Customized Software still fails to perform, Verizon Wireless shall have the right to reject

the Customized Software, and return the Software to Intellisync at Intellisync’s expense, and receive a full refund of all amounts paid with respect to the returned Software. Software shall not be deemed accepted unless such acceptance is in writing or as provided in Section 14.5 below.

14.4 If Verizon Wireless elects not to perform specific acceptance tests, the Software shall be deemed accepted upon commercial availability.

14.5 If applicable, any amounts for the Software and Related Services paid to Intellisync by Verizon Wireless shall be refunded to Verizon Wireless within *** after return of Software.

15.1 Subject to Verizon Wireless’ payment of the Maintenance Fees in accordance with Exhibit A, Intellisync will provide annual technical support and assistance relating to the Customized Software via email and telephone only, directly to authorized personnel who are employees of Verizon Wireless and are trained in the usage of the Customized Software. Intellisync will not be responsible for any direct Verizon Wireless User support pursuant to this Agreement.

15.2 Subject to Verizon Wireless’ payment of the Maintenance Fees in accordance with Exhibit A, Intellisync will provide to Verizon Wireless all Updates, and Releases to the Customized Software promptly upon their commercial release. Verizon Wireless acknowledges that Intellisync may, in its sole discretion, limit its technical support and assistance as set forth above to the most recent *** of the Customized Software if such recent versions have been offered to Verizon Wireless, provided that Intellisync will continue providing technical support for the former *** for *** after release of the new ***.

15.3 Subject to Verizon Wireless’ payment of the Maintenance Fees, Intellisync will provide annual maintenance as described in 15.1 and 15.2 above (“Maintenance”) at the rates described in Exhibit A. On the anniversary of the Effective Date, Verizon Wireless shall elect whether it wants to receive twelve (12) months (the “Maintenance Term”) of Maintenance. If elected, Verizon Wireless agrees to pay Intellisync the maintenance fees as described in Exhibit A (“Maintenance Fees”). If Verizon Wireless ceases to pay for and receive Maintenance and later requests Maintenance, Verizon Wireless will be required to pay to Intellisync the Maintenance Fees not paid during the period in which the Maintenance was discontinued. Intellisync has no obligation to provide Verizon Wireless with any Maintenance unless Verizon Wireless has paid for the Maintenance in advance as required hereunder.

15.4 Service Level Agreement. Attached as Exhibit F is a Service Level Agreement (“SLA”) setting forth the respective responsibilities of the Parties regarding support of the Customized Software and Related Services.

17.1 Ownership.

Intellisync represents and warrants that it owns the Customized Software and has the right to license the Customized Software to Verizon Wireless. Intellisync also represents and warrants to the best of its knowledge that ***. As to Customized Software which Intellisync does not have title, Intellisync represents and warrants that it has rights in the Customized Software sufficient to permit the license and sublicense of the Customized Software to Verizon Wireless and that Intellisync has full right, power and authority to license the Customized Software and other rights granted hereunder to Verizon Wireless and its Customers and Users.

17.2  Limited Term Warranties .

17.2.1 For the Warranty Period specified below, Intellisync warrants to Verizon Wireless that:

17.2.1.1  The Customized Software and media containing the Customized Software and the Related Services will be free from defects in design, material and workmanship;

17.2.1.2  The Customized Software will substantially conform to and perform in all material ways in accordance with the Specifications and SOW;

17.2.1.3  So long as Verizon Wireless is receiving maintenance, if Intellisync makes generally available any Updates or other enhancements or upgrades, such Updates, enhancements or upgrades shall be included within this warranty;

17.2.1.4  Each Update will conform to and perform in all material ways in accordance with the Specifications; and

17.2.1.5  If Customized Software furnished contains one or more manufacturers’ warranties, other than Intellisync’s, Intellisync hereby assigns such warranties to Verizon Wireless.

17.2.2 If the Customized Software does not meet its warranties during the Warranty Period and Intellisync has not: (a) replaced the Customized Software with Customized Software that will perform in accordance with the Specifications, or; (b) modified the Customized Software to perform in accordance with the Specifications within *** subsequent to the expiration of the Warranty Period, then in addition to any other rights or remedies Verizon Wireless may have at law or in equity, Verizon Wireless may terminate this Agreement or any SOW issued hereunder, and Intellisync shall refund to Verizon Wireless the amount paid to it for the nonconforming Customized Software.

17.2.3 EXCEPT FOR THE WARRANTIES IN THIS SECTION 17, INTELLISYNC MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE SOFTWARE OR CUSTOMIZED SOFTWARE. INTELLISYNC EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING IN LAW, CUSTOM, CONDUCT OR OTHERWISE. NOTWITHSTANDING THE FOREGOING, INTELLISYNC DOES NOT DISCLAIM VERIZON WIRELESS’ RIGHT TO INDEMNIFICATION PURSUANT TO SECTIONS 20 AND 28 OF THIS AGREEMENT.

17.2.4 Warranty Period.

The Warranty Period for Customized Software or Related Services will be in effect for *** from the Effective Date. Thereafter the Warranty Period shall be *** from the date of Acceptance; provided, however, that such Warranty Period for Software shall be extended by a period equal to the time during which such Software does not meet its warranties. The Warranty Period for replacement Customized Software shall be the remaining Warranty Period of the replaced Customized Software or ***, whichever is the greater. Notwithstanding the foregoing, the Warranty Period related to Ownership and *** shall extend for the Term of the Agreement.

17.3 Software Virus Protection.

17.3.1 Intellisync represents and warrants to Verizon Wireless that the Customized Software does not contain or will not contain any Self-Help Code or any Unauthorized Code. Intellisync shall remove promptly any such Self-Help Code or Unauthorized Code in the Customized Software of which it is notified or may discover. Intellisync shall indemnify Verizon Wireless against any loss or expense arising out of any breach of this warranty.

17.3.2  Intellisync also represents and warrants that there are no copy protections or similar mechanisms within the Customized Software, which will, either now or in the future, interfere with the grants made in this Agreement. Furthermore, Intellisync represents and warrants unless: (a) requested in writing by Verizon Wireless and Verizon Wireless approves Intellisync’s response, or (b) Intellisync advises Verizon Wireless in writing that it is necessary to perform valid duties under this Agreement and authorized in writing by Verizon Wireless, the Customized Software shall: (i) contain no hidden files; (ii) not replicate, transmit or activate itself without control of an authorized person operating computer equipment on which it resides; (iii) not alter, damage or erase any data or computer programs without control of an authorized person operating the computer equipment on which it resides; and (iv) contain no encrypted imbedded key, node lock, spyware, time out or other function, whether implemented by electronic, mechanical or other means, which restricts or may restrict Use or access to any programs or data developed under this Agreement, based on residency on a specific hardware configuration, frequency or duration of Use, or other limiting criteria (collectively “Illicit Code”). Should any Customized Software have any of the foregoing attributes, and notwithstanding anything elsewhere in this Agreement to the contrary, Intellisync shall be in default of this Agreement, and no cure period shall apply. It is agreed that a breach of the above representation and warranty may cause irreparable harm and injury and Verizon Wireless shall be entitled, in addition to any other rights and remedies it may have at law or in equity, to seek an injunction enjoining and restraining Intellisync from doing or continuing to do any such act and any other violations or threatened violations of the Agreement. In addition to any other remedies available to it under this Agreement, Verizon Wireless reserves the right to pursue any civil and/or criminal penalties available to it against the Intellisync.

17.4 Assignment of Warranties.

If Verizon Wireless transfers or assigns the Customized Software to an Affiliate, or to a third party in connection with the provision or support of network services, then Intellisync’s Ownership and *** warranty and its warranty that all Software will conform in all material ways to all Specifications, SOWs, and other requirements set forth in this Agreement, including that all Customized Software will be free from material defects in materials, workmanship and design, will extend to Verizon Wireless’ transferees and assignees.

17.5 Services.

17.5.1 Intellisync represents and warrants to Verizon Wireless that Related Services shall be rendered by qualified personnel, certified for the applicable Customized Software, who will perform the tasks assigned consistent with professional standards.

17.5.2 Intellisync represents, warrants, and covenants that no service performed by Intellisync pursuant to this Agreement shall be provided, directed, controlled, supervised, or managed, and no data or Verizon Wireless customer communication (voice or data) relating to any such service shall be stored or transmitted, at, in, or through, a site located outside of the United States without the advance written consent of Verizon Wireless.

17.6 Remedies.

All warranties shall survive inspection, acceptance and payment. If any breach of warranty occurs during the Warranty Period, Intellisync shall correct material errors, defects and nonconformities and restore the Customized Software to conforming condition without additional charge to Verizon Wireless. If such breach or nonconformity has not been corrected within a reasonable time (not to exceed fifteen (15) days from Verizon Wireless’ notice to Intellisync of the breach), or if during the

Warranty Period two (2) or more such breaches of warranty occur within any thirty (30) day period, in addition to any other rights or remedies Verizon Wireless may have at law or in equity, Verizon Wireless may cancel the SOWs covering such defective Customized Software and any other Software affected by such breach. In the event of such cancellation, Intellisync shall promptly remove such Customized Software and refund to Verizon Wireless all monies previously paid to Intellisync for the defective Customized Software and Related Services.

18.1  Upon the written request of Verizon Wireless, in order to protect the rights of Verizon Wireless, Intellisync shall, at Verizon Wireless’ sole cost and expense, deposit, keep and maintain current a copy of the Source Code Materials identified in Section 18.2 below for any Software licensed by Intellisync to Verizon Wireless in escrow with a commercial escrow agent mutually agreeable to the parties, pursuant to an escrow agreement by and among Intellisync, Verizon Wireless and such agent, or if Intellisync has deposited and maintains such Source Code Materials in an escrow account with an escrow agent in the United States, acceptable to Verizon Wireless, then Intellisync shall at Verizon Wireless’ sole cost and expense and within thirty (30) days of the Effective Date of this Agreement, register Verizon Wireless as a listed beneficiary under such source code agreement (“Escrow Agreement”). Such Escrow Agreement shall authorize the escrow agent to release such Source Code Materials to Verizon Wireless if and when Verizon Wireless shall have a right thereto pursuant to this Agreement. Intellisync shall be deemed to have granted to Verizon Wireless a license and right to Use the Software and Source Code Materials under the terms and conditions of this Agreement, effective upon such time as, but only in the event that, Verizon Wireless obtains the Source Code Materials due to a release event.

18.2 To protect the rights and interests of Verizon Wireless, Intellisync shall immediately place in escrow materials on machine readable media compatible with Intellisync’s equipment and accompanied by full documentation thereof sufficient to allow a reasonably skilled and experienced engineer build the Customized Software from source code (collectively, “Source Code Materials”) which will enable Verizon Wireless to maintain, support and enhance such Software or to contract with others for such work in accordance with the escrow release events indicated in Section 18.3 below (“Escrow Release Events”).

18.3 Escrow Release Events.

The “Escrow Release Events” defined and agreed to herein, and in any Escrow Agreement that may be entered into by the Parties, shall include, but not be limited to, these conditions upon which the Source Code Materials shall be released to Verizon Wireless, temporarily or permanently, if one or more of the following events occur:

18.3.1 permanently, if Intellisync becomes insolvent or admits insolvency or admits a general inability to pay debts as they become due or fails to maintain the accuracy and satisfy the requirements supporting the accuracy of its representations;

18.3.2 permanently, if Intellisync files a petition for protection under the Bankruptcy code of the United States, or an involuntary petition is filed against the Intellisync and is not dismissed within sixty (60) days, or Verizon Wireless exercises its rights under 365(n) of the Bankruptcy Code; and

18.3.3  temporarily, if during the Term, Intellisync fails to provide technical support during any emergency or out-of-service condition or, at any time, ceases to provide warranty or maintenance support for a period of thirty (30) days or otherwise to perform its obligations under this Agreement. Verizon Wireless shall only use Source Code Materials released during this

event for the purpose of placing the Software back into operation or otherwise maintaining or supporting the Software.

18.4 Intellisync's Responsibilities.

Verizon Wireless shall pay all costs of providing and maintaining the Source Code Materials in escrow, including the fees of the escrow agent and Intellisync shall annually certify compliance. Verizon Wireless shall have the right at any time to verify that the copy of the source code placed in escrow shall be reproduced and maintained on machine readable media compatible with Intellisync’s equipment and shall be accompanied by full documentation thereof. All Source Code Materials will be refreshed by the Intellisync at least every *** to include all new fixes, and within *** of the date when Intellisync provides Verizon Wireless with a new maintenance release or upgraded version of Software. As a baseline to insure that all Source Code Materials placed in escrow are complete, Intellisync will confirm, through the escrow agent, that an independent third party can indeed produce the Source Code Materials listed above.

18.5  Supplementary Agreement.

Intellisync acknowledges that this escrow provision, or any Escrow Agreement the Parties may enter into, is an “agreement supplementary to” (the “Supplementary Agreement”) the license agreement as provided in Section 365(n) of the Bankruptcy Code. Intellisync acknowledges that if Intellisync as a debtor-in-interest or a trustee-in-bankruptcy (individually or collectively “Debtor”) in a case under the Bankruptcy Code rejects this Agreement or the Supplementary Agreement, Verizon Wireless may elect to retain its rights under the Agreement and this Supplementary Agreement as provided in Section 365(n) of the Bankruptcy Code. After the commencement of a case under the Bankruptcy Code by or against Intellisync, and unless and until the Agreement is rejected, upon written request of Verizon Wireless, Debtor shall: (a) not interfere with the rights of Verizon Wireless as provided in the Agreement and this Supplementary Agreement, including the right to obtain the Source Code Materials from the escrow agent; and (b) provide the Source Code Materials to Verizon Wireless. If Debtor rejects the Agreement or this Supplementary Agreement and Verizon Wireless elects to retain its rights as set forth in Section 365 of the Bankruptcy Code, upon written request of Verizon Wireless, the escrow agent shall provide the Source Code Materials to Verizon Wireless.

19.1 Either Party shall be in default if it fails to perform any of its material obligations under this Agreement. If either Party shall be in material breach or default of this Agreement, and such breach shall continue for a period of *** after receipt of written notice thereof, then, in addition to all other rights and remedies under this Agreement at law or in equity or otherwise, the non-breaching Party shall have the right, upon written notice, to immediately cancel any or all affected SOWs or at its option to terminate this Agreement without any obligation or liability to the breaching Party for said termination or cancellation. Notwithstanding the foregoing, if Intellisync fails to tender delivery of Software or render Related Services, due to circumstances solely within Intellisync’s control, and within *** of the respective date mutually agreed upon, then Verizon Wireless shall have the right to immediately cancel any or all affected SOWs or this Agreement without further obligation or liability to Intellisync for said cancellation or any obligation to provide Intellisync a time period to cure said breach.

19.2 This Agreement may be terminated, by written notice, only as follows:

19.2.1 ***

19.2.1.1 ***

19.2.1.2  ***

19.2.1.3  ***

19.2.2 By Verizon Wireless, immediately in the event of the following:

19.2.2.1 Intellisync judged bankrupt or insolvent; or

19.2.2.2 Intellisync makes a general assignment for the benefit of its creditors; or

19.2.2.3 A trustee or receiver is appointed for Intellisync or for any of its property; or

19.2.2.4  Any petition by or on behalf of Intellisync is filed to take advantage of any debtor’s act or to reorganize under the bankruptcy or similar laws; or

19.2.2.5  A legal complaint filed against Verizon Wireless alleging infringement or misappropriation of a patent, copyright or trade secret, made by a third party relating to the Customized Software or use thereof, that is not dismissed within ninety (90) days from the date the complaint is served on Verizon Wireless; or

19.2.2.6 Either party fails to comply with laws, ordinances, rules, regulations or orders of any public authority where such failure to comply materially impacts either party's ability to perform under this Agreement and/or any SOW.

19.3 Termination of SOW for Related Services for Convenience.

Unless otherwise provided in this Agreement, or an SOW, Verizon Wireless may terminate an SOW for Related Services, effective immediately, upon written notice to Intellisync. In such cases, Verizon Wireless will pay Intellisync for Related Services satisfactorily performed in accordance this Agreement up to the effective date of termination.

19.4 Effect of Termination.

With the exception of those Sections of this Agreement which shall survive same, as stated in Section 36, Termination shall be absolute.

The Parties agree that prior to any Termination, they shall negotiate in good faith, taking into consideration the relationship of the Parties and the revenue share received by Intellisync under this Agreement, for a license to maintain and support the Customized Software for the Verizon Wireless then-current User-base of the Customized Software.

Upon termination of this Agreement by Verizon Wireless, Verizon Wireless shall not be liable to Intellisync, either for compensation or for damages of any kind or character whatsoever, whether on account of the loss by Intellisync of present or prospective profits on sales or anticipated sales, or expenditures, investments or commitments, made in connection with the establishment, development or maintenance of Intellisync’s business, or on account of any other cause or thing whatsoever. Termination shall not prejudice the rights or liabilities of the Parties with respect to any indebtedness then owing by either Party to the other.

19.5 Additional Rights.

The rights set forth in this Section are in addition to, and not in limitation of, any other right and remedy either party may have at law or in equity.

20.1 Intellectual Property (IP) Indemnity.

Intellisync shall indemnify, defend and hold harmless Verizon Wireless, its present and future parents (including Vodafone), subsidiaries and Affiliates, and its and their respective present and future Customers, Users, directors, officers, partners, vendors, employees, agents, successors and assigns (“Indemnified Parties”) from and against all claims, suits, demands, damages, liabilities, expenses (including, but not limited to, reasonable fees and disbursements of counsel and court costs), judgments, settlements and penalties of every kind arising from or relating to any actual or alleged infringement or misappropriation of any patent, trademark, copyright, trade secret or any actual or alleged violation of any other intellectual property or proprietary rights arising from or in connection with the Software, Customized Software provided or the Related Services performed under this Agreement or their Use (“IP Claim”). Notwithstanding anything to the contrary contained in this Agreement, the provisions of this Section, shall govern the rights of Verizon Wireless and its Affiliates, shareholders, directors, officers, employees, contractors, and agents to indemnification for IP Claims.

20.2 Indemnification Procedures.

The procedures set forth in Section 28 shall apply in the case of any claims of infringement, misappropriation or violation of intellectual property rights for which indemnification will be sought.

20.3 IP Claim Obligations.

Without limitation of Sections 20.1 and 20.2, if sale, use or, if applicable, distribution, of the Customized Software or Related Services becomes subject to an IP Claim, Intellisync shall with the informed consent of Verizon Wireless and at Intellisync’s expense:

20.3.1 Procure for the Indemnified Parties the right to use the Customized Software and/or Related Services; or

20.3.2 Replace the Customized Software and/or Related Services with equivalent, non-infringing Software and/or Related Services; or

20.3.3 Modify the Customized Software and/or Related Services so they become non-infringing; or

20.3.4 Remove the Customized Software and/or Related Services and refund the purchase price for the infringing Customized Software and/or Related Services, including transportation, installation, removal and other incidental charges which Verizon Wireless has paid depreciated on a straight-line basis over a five-year period.

20.4 Limitations. Unless otherwise stated in this Agreement, the rights granted to Verizon Wireless in this Section 20 shall be its sole and exclusive remedy and Intellisync’s sole obligation for any alleged infringement of any patent, copyright, trademark, trade secret, or other proprietary right. Intellisync shall have no liability, including under this Section 20, if any claim of infringement or misappropriation results solely from: (a) any modification of the Customized Software by anyone other than Intellisync without Intellisync’s assent, or any person not under Intellisync’s direction or control, if such claim would have been avoided by use of un-modified Customized Software; (b) any Verizon Wireless or third party application; (c) use of the Customized Software in connection or in combination with the equipment, devices or software not provided by Intellisync (but only to the extent that the Customized Software alone would not have infringed); (d) Customized Software developed or modified in compliance with Verizon Wireless’ design requirements or specifications unless such design requirements or specifications were at the direction, request or written consent of

Intellisync; (e) the Use of the Customized Software other than as permitted under this Agreement; (f) Verizon Wireless’ continued allegedly infringing activity after being provided modifications by Intellisync that would have avoided the alleged infringement, provided that the modification is commercially and logistically feasible to Verizon Wireless and provided that Verizon Wireless is allowed a reasonable amount of time to implement the modification, and provided that the modification allows continued operation of the Software and Customized Software in accordance with this Agreement; (g) Use of other than the most current Release or version of the Customized Software (if such infringement or claim would have been prevented by the Use of such Release or version without any substantial additional direct or indirect cost, expense or inconvenience to Verizon Wireless, Customers and Users).

23.1Intellisync shall comply with the provisions of all applicable federal, state, county and local laws, ordinances, regulations and codes (including procurement of required permits or certificates) in manufacturing, assembling, selling and providing Software and/or Related Services and in performing its other obligations under this Agreement and applicable equal employment opportunity laws, rules and regulations, which are expressly incorporated herein by reference. Irrespective of whether a specification is furnished, if Software or Related Services furnished are required to be constructed, packaged, labeled, or registered in a prescribed manner, Intellisync shall comply with applicable federal, state, county and local laws. Intellisync shall indemnify, defend, and hold harmless Verizon Wireless against all Claims arising out of or related to any such noncompliance.

23.2  Software furnished shall comply, to the extent applicable, with the requirements of the Federal Communications Commission’s Rules and Regulations, as may be amended, including those sections concerning the labeling of such Software and the suppression of radiation to specified levels. If the Software generates interference harmful to radio communications, and such Software was installed in accordance with such Rules and Regulations, then Intellisync shall provide to Verizon Wireless methods for suppressing the interference. If the interference cannot be reasonably suppressed, Intellisync shall accept return of the Software, refund to Verizon Wireless the price paid for the Software and bear all expenses for removal and shipment of such Software. Nothing herein shall be deemed to diminish or otherwise limit Intellisync’s obligations under Section 15 or any other rights or remedies available to Verizon Wireless, whether at law or in equity.

23.3  Intellisync represents and wa