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<p class=MsoTitle>CONTENT PARTNER AGREEMENT</P>
<p> This Content Partner Agreement (ã<u>Agreement</u>ä) is entered into as of
____________ 200__ (the ã<u>Effective Date</u>ä), by and between AvantGo,
Inc. located at 1700 S. Amphlett Blvd., Suite 300, San Mateo, CA 94402 (ã<u>AvantGo</u>ä),
and <u> </u>located at <u> </u>(ã<u>Content Partner</u>ä).</p>
<p style="TEXT-INDENT: 0.5in"></p>
<p>1. <u>Definitions</u>.</p>
<p>ã<u>Channel</u>ä means web pages that are delivered via the Service to an
End Userâs Handheld Device when the Handheld Device is connected wirelessly,
connected through synchronization with such End Userâs desktop computer or
through any other means. </p>
<p>ã<u>Confidential Information</u>ä of a party means any information, including
information about technologies, content partners, business strategies, distribution
activities, product features, demographics, and usage patterns, disclosed
by that party to the other pursuant to this Agreement which is marked or identified
orally as being ãConfidentialä or ãProprietary.ä </p>
<p>ã<u>Content</u>ä means WWW content which conforms to the Style Guide, which
is developed by the Content Partner for delivery through the Channel, and
which is described in detail on <u>Exhibit A</u>.</p>
<p>ã<u>Content Partner WWW Site</u>ä means the WWW site owned or controlled
by Content Partner. The URL for the Content Partner WWW Site is set forth
on <u>Exhibit A</u>. </p>
<p><u></u></p>
<p>ã<u>End User</u>ä means any party that uses a Handheld Device and accesses
the Service. </p>
<p>"<u>Handheld Device</u>" means any device that is able to receive or store
information including, but not limited to, Palm OS devices, Windows CE devices,
Cell Phones, Pagers, Smartphones and other devices, whether wireless, wireline
or requiring cradle synchronization.</p>
<p>ã<u>Licensed Materials</u>ä means the AvantGo trademarks and Icons (as defined
in Section 2.2(ii) below).</p>
<p>"<u>Service</u>" means the service provided by AvantGo to users of Handheld
Devices facilitating the delivery of Content to users. </p>
<p>ã<u>Style Guide</u>ä means the AvantGo guide which specifies guidelines and
procedures for developing WWW content which is optimized for the small graphics
display of Handheld Devices, a copy of which is located at <a href="http://corp.avantgo.com/DevCorner/StyleGuide/">http://corp.avantgo.com/DevCorner/StyleGuide/</a>
and is incorporated herein by reference.</p>
<p>ã<u>WWW</u>ä means the part of the Internet commonly known as the World Wide
Web.</p>
<p>2. <u>License Grants</u>.</p>
<p> 2.1. <u>Content License</u>. Subject to the terms and conditions of this
Agreement, Content Partner hereby grants AvantGo a nonexclusive, non-transferable,
revocable, worldwide license to use, copy (including, without limitation,
caching for performance purposes), perform, display and redistribute to End
Users the Content solely for purposes of providing the Service. AvantGo, from
time to time, may offer the Service under the brand of a third party or co-branded
with such third party. If AvantGo wishes to include such third partyâs channel,
Content Partner may elect to have the Content excluded from such third party
branded or co-branded version of the Service by providing AvantGo with written
notice of such election.</p>
<p> 2.2 <u>Trademark License</u>. </p>
<p> (i) <u>By Content Partner</u>. Subject to the terms and conditions of this
Agreement, Content Partner hereby grants AvantGo a nonexclusive, non-transferable,
revocable, worldwide license to use Content Partnerâs trademarks, trade names
and logos set forth on <u>Exhibit A</u> (the ã<u>Content Partner Trademarks</u>ä)
solely in connection with the display of the Channel through the Service and
the marketing of the Content and AvantGo products, including the Service.
AvantGo shall comply with any usage guidelines which may be provided to AvantGo
by Content Partner from time to time. AvantGo shall not challenge the Content
Partnerâs ownership of such Content Partner marks.</p>
<p> (ii) <u>By AvantGo</u>. Subject to the terms and conditions of this Agreement,
AvantGo hereby grants the Content Partner a nonexclusive, non-transferable,
revocable, worldwide license to (i) use the ãDownload AvantGoä icon on the
Content Partner WWW Site to link WWW users to an AvantGo WWW Site where such
users may download AvantGo software and (ii) use the ãSubscribe to Channelä
icon on the Content Partner WWW Site to enable End Users to subscribe to the
Content Partner WWW Site as a Channel (collectively the ã<u>AvantGo Icons</u>ä).
Content Partner shall comply with any usage guidelines which may be provided
to the Content Partner by AvantGo from time to time, and upon request by AvantGo,
shall furnish AvantGo with samples of the Content Partnerâs usage of such
AvantGo Icons. Content Partner shall not challenge AvantGoâs ownership of
such AvantGo Icons or use or adopt any trademarks which might be confusingly
similar to such AvantGo Icons.</p>
<p style="tab-stops: 436.5pt"></p>
<p> 2.3 <u>Restrictions</u>. Neither party shall have the right to sublicense
any of the rights granted to such party in this Section 2; provided, however,
that End Users shall have the right to copy and use the Content on such End
Userâs Handheld Device solely for personal use. Content Partner shall not
rent, lease, reproduce, modify, translate, or create derivative works of the
Licensed Materials. AvantGo reserves all rights in the Licensed Materials
which are not expressly granted to Content Partner in this Agreement.</p>
<p> 2.4 <u>Proprietary Notices</u>. The parties agree they will not remove any
copyright or other proprietary rights notices from the other partyâs trademarks
or the Licensed Materials.</p>
<p>3. <u>Obligations of the Content Partner</u>.</p>
<p> 3.1 <u>Contacts</u>. Content Partner shall designate one person who shall
be the exclusive point of contact with AvantGo with respect to all technical
issues hereunder (ã<u>Technical Contact</u>ä), and one person who shall be
the exclusive point of contact with AvantGo with respect to all marketing
issues hereunder (ã<u>Marketing Contact</u>ä). The Technical Contact and Marketing
Contact are set forth on <u>Exhibit A</u>. Content Partner will have the right
to change the Technical Contact or the Marketing Contact upon prior written
notice to AvantGo.</p>
<p> 3.2 <u>Content Development and Change</u>. Content Partner shall use its
commercially reasonable efforts to develop and make Content available to End
Users. The procedure for ensuring compliance with this requirement is described
in the Style Guide. Content Partner shall provide AvantGo thirty (30) days
advance written notice prior to changing the Content if the revised Content
will substantially differ from the description set forth on <u>Exhibit A</u>.
Content Partner will be solely responsible for developing and formatting the
Content as follows;</p>
<p> 3.2.1 All static pages (those that don't update more than once per day)
and images from Content Partners must be cacheable for at least 1 day (this
is to improve delivery time to the End User.);</p>
<p> 3.2.2 Content Partners may make exactly one (1) page not cacheable. Each
sync will cause that page to be fetched. Content Partner will then count syncs
by counting hits on that page;</p>
<p> 3.2.3 Personalized dynamic pages do not need to be cacheable; and-</p>
<p> 3.2.4 Content Partner shall not disclose the URL to outside parties. The
Channel has been developed for optimized viewing on AvantGo enabled devices
and may not perform effectively outside of the AvantGo environment. </p>
<p> 3.3 <u>Exclusive Channel Access.</u> Content Partner represents and warrants
that the html pages to be accessed by the Service will only be accessible
by the AvantGo Interactive Service and by no other third party. The procedure
for ensuring compliance with this requirement is described in the Style Guide</p>
<p> 3.4 <u>Expenses</u>. Each party will bear its own expenses with respect
to the fulfillment of its obligations set forth under this Agreement.</p>
<p class=Item style="MARGIN-LEFT: 0in; TEXT-INDENT: 0.5in; mso-pagination: widow-orphan; tab-stops: .5in">3.5
<u>Revenue Bearing Services</u>. Content Partner shall describe in detail
on Exhibit A hereto any and all Content or other information or services that
will be offered or made available through the Service (whether as part of
the Channel or otherwise) for which Content Partner receives any monetary
value or any other form of consideration (from End Users or any third party)
directly or indirectly. All Content Partners electing to generate revenue
from their AvantGo channel are required to enter into a revenue sharing agreement
with AvantGo. For revenue generated from Channels Sponsorships and Advertising
on Content Partner's AvantGo Channel, Content Partner will remit 25% of gross
revenue generated to AvantGo. All other revenue generating activities, including
but not limited to commerce, subscription fees, and transactions, will require
additional terms negotiated on a case by case basis. In the event Content
Partner proceeds without negotiating such additional terms, Content Partner
will remit 25% of all gross revenues generated from such additional revenue
generating activity until such time that the parties negotiate an alternative
arrangement. In the event Content Partner is in breach of this subsection
3.5, AvantGo may restrict access to the Content Partner WWW Site, the Content
or the Channel and, in AvantGoâs sole discretion, may immediately terminate
this Agreement. If Content Partner chooses to add revenue-bearing services
in the future, an amendment to this Agreement must be made. AvantGo reserves
the right to refuse the displaying advertisements which it determines to be
inappropriate for delivery through its Service.</p>
<p class=Item style="MARGIN-LEFT: 0in; TEXT-INDENT: 0.5in; mso-pagination: widow-orphan; tab-stops: .5in"></p>
<p style="MARGIN-LEFT: 0in; TEXT-INDENT: 0.5in; mso-list: none">3.6 <u>Payment</u>.
Content Partner will remit all such payments to AvantGo within thirty (30)
days following the end of each calendar month. All payments shall be made
in United States currency, unless otherwise specified by AvantGo. Any amounts
not paid when due will be subject to a finance charge equal to one and one-half
percent (1.5%) per month or the highest rate allowable by law, whichever is
less, determined and compounded daily from the date due until the date paid.
Payment of such finance charges will not excuse or cure any breach or default
for late payment. Each party may accept any check or payment without prejudice
to its rights to recover the balance due or to pursue any other right or remedy.
No endorsement or statement on any check or payment or letter accompanying
any check or payment or elsewhere will be construed as an accord or satisfaction.
</p>
<p class=MsoBodyTextIndent>3.7 <u>Audit Rights</u>. Content Partner shall maintain
accurate records to the activities which give rise to a payment obligation
under this Agreement and calculations of the fees payable to AvantGo, and
shall provide monthly reports thereof. AvantGo shall have the right, upon
no less than fifteen (15) days prior written notice to Content Partner, to
inspect, during Content Partner's normal business hours, the records of Content
Partner upon which Content Partner's revenue calculations are to be based.
The costs of such audit shall be paid by AvantGo provided, however, that if
said inspection shall reveal an error in excess of five percent (5%) in monies
due to AvantGo, Content Partner shall pay for the audit. Such audit rights
as shall continue for six (6) months after the expiration or termination of
this Agreement.</p>
<p style="MARGIN-LEFT: 0.5in">3.8 <u>Marketing</u>. </p>
<p style="TEXT-INDENT: 1in"></p>
<p style="TEXT-INDENT: 1in">3.8.1 <u>Subscribing to Channel</u>. Content Partner
shall conspicuously display and use the AvantGo Icons on the Content Partner
WWW Site home page to enable End Users to subscribe to Content Partner's Channel.
Content Partner will allow End Users to link to a page that describes Content
Partner's Channel, enables existing AvantGo users to subscribe to the Channel,
and enables individuals to sign up for AvantGo. </p>
<p style="TEXT-INDENT: 1in"></p>
<p style="TEXT-INDENT: 1in">3.8.2 <u>Banner Ads</u>. Content Partner shall promote
its Channel via Banner Ads on the Content Partner's Web Site. Content Partner
will promote its Channel with page views equivalent to a minimum 10 times
the number of unique users accessing the Channel during the immediately preceding
month. As an example, if Content Partner has 1,000 AvantGo users who have
subscribed to the Content Partner's Channel, the Content Partner shall run
a banner ad for a minimum of 10,000 impressions. Content Partner shall provide
proof of compliance with this requirement. </p>
<p style="TEXT-INDENT: 1in">3.8.3 <u>Other Marketing Obligations:</u> Content
Partner shall promote the AvantGo Channel in a reasonable manner, including:____________________________________________________<span style="BACKGROUND: lime; mso-highlight: lime">[CONTENT
PARTNER TO COMPLETE]</span></p>
<p style="TEXT-INDENT: 1in"></p>
<p style="TEXT-INDENT: 0.5in">3.9 <u>Press Release</u>: Content Partner shall
issue a press release, mutually agreeable to the parties, within 30 days of
the Effective Date.</p>
<p>4. <u>Obligations of AvantGo</u>.</p>
<p class=vlg-1 style="TEXT-INDENT: 0.5in; tab-stops: .5in">4.1 Joint Marketing.
Content Partner and AvantGo will use commercially reasonable efforts to participate
in marketing opportunities with respect to the promotion of the Content Partner
Channel and the Service.</p>
<p style="MARGIN-LEFT: 0in; TEXT-INDENT: 0.5in; tab-stops: list 0in left .5in; mso-list: l9 level2 lfo14">4.2
<u>User Reporting</u>. At Content Partner's request, AvantGo will provide
Content Partners with the total number of unique users currently subscribed
to Content Partner's Channel at each calendar month-end.</p>
<p style="TEXT-INDENT: 0.5in; tab-stops: .5in"></p>
<p style="TEXT-INDENT: 0.5in; tab-stops: .5in">4.3 <u>Linking</u>. AvantGo will
enable End Users to subscribe to the Content Partnerâs Channel from the AvantGo
WWW Site. AvantGo will have no obligation to list, and will have the right
to remove from such list, in AvantGoâs sole discretion, Channels with content
which does not conform to the Style Guide; provided, however, that prior to
such removal, AvantGo will notify Content Partner in writing, and Content
Partner will have thirty (30) days to conform the Channel to the Style Guide.
AvantGo may restrict or prevent access to the Content, the Content Partner
WWW Site and/or the Channel (and, at AvantGoâs option, immediately terminate
this Agreement), if AvantGo believes, in its sole discretion, that all or
any portion thereof: (i) promotes or contains any information or content,
including but not limited to visual images, that is unlawful, false or misleading
or that promotes illegal conduct or purposes; (ii) promotes bigotry, racism,
hatred, or harm of any kind against any group or individual; (iii) is or could
be in any way harmful to minors; (iv) is harassing, libelous, invasive of
anotherâs privacy, abusive, threatening, vulgar, obscene, tortious, or otherwise
objectionable, or that infringes or may infringe the intellectual property
or other rights of another; (v) involves the transmission of ãjunk mailä,
ãspamä, ãchain lettersä, or unsolicited mass distribution of email; (vi) distributes
or allows access to corporate or Intranet information that is not generally
made available for free to users of the WWW; or (vii) is otherwise inappropriate
for inclusion in the Service.</p>
<p style="TEXT-INDENT: 0.5in; tab-stops: .5in"></p>
<p style="TEXT-INDENT: 0.5in; tab-stops: .5in">4.4 <u>Technical Support</u>.
AvantGo will provide electronic mail support with respect to the development
of Content to the Technical Contact. AvantGo will use its commercially reasonable
efforts to respond to all electronic mail requests received during normal
business hours within twenty-four (24) hours. AvantGo will provide additional
support to Content Partners, in AvantGoâs sole discretion, subject to AvantGoâs
then-current time and materials rates.</p>
<p>5. <u>Ownership</u>.<u></u></p>
<p style="TEXT-INDENT: 0.5in">5.1 <u>By Content Partner</u>. Content Partner
shall own all right, title and interest in and to the Content, Content Partner
Trademarks and other intellectual property rights pertaining thereto. Except
as expressly provided herein, nothing in this Agreement shall confer in AvantGo
any right of ownership in, or license to, the Content or other intellectual
property rights pertaining thereto. AvantGo shall not challenge Content Partnerâs
ownership of such trademarks or related intellectual property rights. AvantGo
shall keep the Content and the Content Partner Trademarks free and clear of
all claims, liens and encumbrances.<u></u></p>
<p> </p>
<p style="TEXT-INDENT: 0.5in">5.2 <u>By AvantGo</u>. AvantGo shall own all right,
title and interest in and to the Licensed Materials, and all intellectual
property rights pertaining thereto. Except as expressly provided herein, nothing
in this Agreement shall confer in Content Partner any right of ownership in,
or license to, the Licensed Materials nor other intellectual property rights
pertaining thereto. Content Partner shall not challenge AvantGoâs ownership
of such Licensed Materials or related intellectual property rights. Content
Partner shall keep the Licensed Materials free and clear of all claims, liens
and encumbrances.</p>
<p>6. <u>Proprietary Rights and Confidential Information</u>.<u></u></p>
<p><u></u></p>
<p> 6.1 <u>Nondisclosure</u>. Each party shall treat as confidential all Confidential
Information of the other party, shall not use such Confidential Information
except as set forth herein, and shall use reasonable efforts not to disclose
such Confidential Information to any third party. Without limiting the foregoing,
each of the parties shall use at least the same degree of care which it uses
to prevent the disclosure of its own confidential information of like importance
to prevent the disclosure of Confidential Information disclosed to it by the
other party under this Agreement. Each party shall promptly notify the other
party of any actual or suspected misuse or unauthorized disclosure of the
other partyâs Confidential Information.</p>
<p class=vlg-1 style="TEXT-INDENT: 0.5in">6.2 <u>Exceptions</u>. Notwithstanding
the above, neither party shall have liability to the other with regard to
any Confidential Information of the other which the receiving party can prove:
(a) was in the public domain at the time it was disclosed or has entered the
public domain through no fault of the receiving party; (b) was known to the
receiving party, without restriction, at the time of disclosure; (c) is disclosed
with the prior written approval of the disclosing party; (d) was independently
developed by the receiving party without any use of the Confidential Information;
(e) became known to the receiving party, without restriction, from a source
other than the disclosing party, without breach of this Agreement by the receiving
party and otherwise not in violation of the disclosing party's rights; (f)
is disclosed generally to third parties by the disclosing party without restrictions
similar to those contained in this Agreement; or (g) is disclosed pursuant
to the order or requirement of a court, administrative agency, or other governmental
body; provided, however, that the receiving party shall provide prompt notice
thereof to the disclosing party to enable the disclosing party to seek a protective
order or otherwise prevent or restrict such disclosure.</p>
<p class=vlg-1 style="TEXT-INDENT: 0.5in">6.3 <u>Return of Confidential Information</u>.
Upon expiration or termination of this Agreement, each party shall return
all Confidential Information received from the other party within 30 days.</p>
<p> 6.4 <u>Remedies</u>. Any breach of the provisions in this Section 6 is a
breach of this Agreement which may cause irreparable harm to the non-breaching
party. Any such breach shall entitle the non-breaching party to injunctive
relief in addition to all legal remedies.</p>
<p>7. <u>Representations and Warranties</u>: Content Partner represents and
warrants to AvantGo that: </p>
<p class=MsoBodyTextIndent2>7.1 it has the full corporate right, power and authority
to enter into this Agreement and to perform the acts required of it hereunder;</p>
<p style="TEXT-INDENT: 0.5in">7.2 its Trademarks do not infringe any third party
trademark rights;</p>
<p style="TEXT-INDENT: 0.5in">7.3 it has not granted any rights with respect
to the Content or its Trademarks to any third party which grant is inconsistent
with the rights granted to AvantGo in this Agreement.</p>
<p style="MARGIN-LEFT: 0.5in; TEXT-INDENT: -0.5in; tab-stops: list .5in; mso-list: l13 level1 lfo11">8.
<u>Indemnity.</u> </p>
<p style="MARGIN-LEFT: 0in; TEXT-INDENT: 0.5in; tab-stops: list 0in; mso-list: l13 level2 lfo11">8.1
<u>By Content Partner</u>: Content Partner will indemnify, defend and hold
harmless AvantGo and its other content partners, vendors, licensors, partners,
licensees, and their respective subsidiaries, affiliates, directors, officers,
employees and representatives from any and all liabilities, losses, expenses
(including reasonable attorneyâs fees), costs and damages of any kind arising
out of or relating to any third party claim that the Content or Content Partner
Trademark violates, infringes or misappropriates such third partyâs intellectual
property rights or other legal rights, or that it contains material or information
that is false, deceptive, misleading, obscene, defamatory, libelous, slanderous
or that violates any right of publicity or privacy. Content Partner agrees
that each party named in this section shall be deemed a third party beneficiary
of this Section.</p>
<p style="MARGIN-LEFT: 0in; TEXT-INDENT: 0.5in; tab-stops: list 0in; mso-list: l13 level2 lfo11">8.2
<u>By AvantGo</u>: AvantGo will indemnify, defend and hold harmless Content
Partner, and its respective subsidiaries, affiliates, directors, officers,
employees and representatives from any and all liabilities, losses, expenses
(including reasonable attorneyâs fees), costs and damages of any kind arising
out of or relating to any third party claim that the Licensed Material violates,
infringes or misappropriates such third partyâs intellectual property rights
or other legal rights, or that it contains material or information that is
false, deceptive, misleading, obscene, defamatory, libelous, slanderous or
that violates any right of publicity or privacy.</p>
<p>9. <u>Disclaimer of Warranties</u>. EXCEPT WITH RESPECT TO THE INDEMNITY
OBLIGATIONS HEREIN, AVANTGO PROVIDES THE LICENSED MATERIALS ãAS IS.ä AVANTGO
MAKES NO PROMISES, REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND AVANTGO SPECIFICALLY DISCLAIMS
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NONINFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.</p>
<p>10. <u>Limitation of Liability</u>.<u></u></p>
<p><u></u></p>
<p>EXCEPT WITH RESPECT TO CLAIMS ARISING UNDER SECTIONS 6 AND 8, IN NO EVENT
WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS OF BUSINESS,
INTERRUPTION OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, OR FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND
ON ANY THEORY OF LIABILITY, WHETHER CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR OTHERWISE, UNDER OR ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVANTGOâS MAXIMUM LIABILITY
FOR ANY CLAIM UNDER THIS AGREEEMENT OR RELATED TO THE SUBJECT MATTER OF THIS
AGREEMENT SHALL BE THE AMOUNT OF MONEY ACTUALLY PAID BY CONTENT PARTNER HEREUNDER.</p>
<p>11. <u>Term and Termination</u>.</p>
<p> 11.1 <u>Term</u>. Unless earlier terminated in accordance with the terms
hereof, the term of this Agreement and the license granted hereunder shall
commence on the date set forth at the beginning of this Agreement and shall
have an initial term of one year and, thereafter, shall continue for additional
successive one (1) year renewal periods unless and until either party provides
the other party written notice of its intention to terminate at least thirty
(30) days prior to the expiration of initial term or the then-current renewal
period.</p>
<p> 11.2 <u>Termination for Convenience</u>. Either party may, at its option,
terminate this Agreement upon forty-five (45) days prior written notice to
the other party.</p>
<p> 11.3 <u>Surviving Terms</u>. Sections 1, and 5 through 12 shall survive
termination of this Agreement. Within thirty (30) days after termination of
this Agreement, the Content Partner shall return to AvantGo or destroy, at
the Content Partnerâs option, all Licensed Materials in the possession of
the Content Partner.</p>
<p>12. <u>General Provisions</u>.</p>
<p> 12.1 <u>Assignment</u>. All the terms and provisions of this Agreement shall
be binding upon and inure to the benefit of the parties to this Agreement
and to their respective heirs, successors, assigns and legal representatives.
Neither party may assign this Agreement in whole or in part without the other
partyâs prior written consent. However, either party shall be entitled to
assign this Agreement in the event of a merger, consolidation, any sale of
all or substantially all of its assets or any other transaction in which more
than fifty percent (50%) of its voting securities are transferred. Any such
assignment by the Content Partner shall not result in an increase in the scope
of the license granted pursuant to this Agreement.</p>
<p> 12.2 <u>Governing Law</u>. This Agreement shall in all respects be governed
by the laws of the State of California for contracts to be performed wholly
within California and without reference to conflicts of laws principles. The
parties hereby agree that all disputes arising out of this Agreement shall
be subject to the exclusive jurisdiction of and venue in the federal and state
courts located within Santa Clara County, California. The parties hereby consent
to the personal and exclusive jurisdiction and venue of these courts.</p>
<p> 12.3 <u>Severability</u>. If any of the provisions of this Agreement are
held to be invalid under any applicable statute or rule of law, they are,
to that extent, deemed omitted.</p>
<p> 12.4 <u>No Waiver</u>. The waiver of any particular breach or default or
any delay in exercising any rights shall not constitute a waiver of any subsequent
breach or default.</p>
<p> 12.5 <u>Notices</u>. All notices required or permitted hereunder shall be
given in writing addressed to the respective parties as set forth below and
shall either be (i) personally delivered, (ii) transmitted by postage prepaid
certified mail, return receipt requested, or (iii) transmitted by nationally-recognized
private express courier, and shall be deemed to have been given on the date
of receipt if delivered personally, or two (2) days after deposit in mail
or express courier. Either party may change its address for purposes hereof
by written notice to the other. The addresses for the parties are set forth
at the beginning of this Agreement, and notices shall be direct to the attention
of each partyâs CEO.</p>
<p> 12.6 <u>Force Majeure</u>. Neither party will be responsible for any failure
or delay in performance of its obligations under this Agreement due to circumstances
beyond its reasonable control, including, without limitation, acts of God,
war, riot, embargoes, acts of civil or military authorities, fire, floods,
accidents, service outages resulting from equipment and/or software failure
and/or telecommunications failures, power failures, network failures, failures
of third party service providers (including providers of Internet Services
and telecommunications). The party affected by any such event shall notify
the other party within a maximum period of fifteen (15) days from its occurrence.
The performance of this Agreement shall then be suspended for as long as any
such event shall prevent the affected party from performing its obligations
under this Agreement.</p>
<p class=5 style="MARGIN-BOTTOM: 0pt; TEXT-INDENT: 0in"></p>
<p class=5 style="MARGIN-BOTTOM: 0pt; TEXT-INDENT: 0in"> 12.7 <u>Independent
Contractors</u>. Notwithstanding the use of the term ãPartnerä in this Agreement
or in marketing materials, the relationship of AvantGo and the Content Partner
is that of independent contractors, and nothing contained in this Agreement
shall be construed to (i) give either party the power to direct or control
the day-to-day activities of the other, (ii) constitute the parties as partners,
joint venturers, co-owners or otherwise as participants in a joint undertaking,
or (iii) allow the either party to create or assume any obligation on behalf
of the other party for any purpose whatsoever.</p>
<p> 12.8 <u>Counterparts</u>. This Agreement may be executed in counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument.</p>
<p> 12.9 <u>Entire Agreement</u>. This Agreement represents the entire agreement
between the parties, and supersedes all prior agreements and understandings
with respect to the matters covered by this Agreement. The parties agree that
the have not entered into this Agreement based on any representations other
than those contained herein. This Agreement may only be amended by a written
agreement signed by both parties.</p>
<p>AGREED AND ACCEPTED:</p>
<p>AVANTGO, INC. CONTENT PARTNER</p>
<p> </p>
<p>By: <u> </u> By: <u> </u></p>
<p>Title: <u> </u> Title: <u> </u></p>
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<p align=center style="TEXT-ALIGN: center"><b style="mso-bidi-font-weight: normal"><u>EXHIBIT
A</u></b></p>
<p>1. <u>Content Partner Trademarks</u>.</p>
<p>2. <u>Technical Contact (please include email, phone, fax and mailing address)</u>.</p>
<p>3. <u>Marketing Contact</u>. <u>(please include email, phone, fax and mailing
address)</u>.</p>
<p>4. <u>Description of Channel</u>(s)</p>
<p style="MARGIN-LEFT: 0.5in; TEXT-INDENT: -0.5in; mso-list: l7 level1 lfo2">5.
<u>Content Partner WWW Site</u>.</p>
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