10-K/A

UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

Form 10-K/A

(Amendment No. 1)

(Mark One)

þ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended December 31, 2009.

OR

o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.

Commission File Number: 000-24643

DIGITAL RIVER, INC.

(Exact name of registrant as specified in its charter)

DELAWARE	41-1901640
(State or other jurisdiction of	(I.R.S. Employer
Incorporation or organization)	Identification No.)

9625 WEST 76TH STREET
EDEN PRAIRIE, MINNESOTA 55344
(Address of principal executive offices)

(952) 253-1234
(Registrant’s telephone number, including area code)

Securities registered pursuant to Section 12(b) of the Act:	Name of each Exchange on which registered:
Common Stock $0.01 par value	Nasdaq Global Select Market

Securities registered pursuant to Section 12(g) of the Act:
None

Indicate by checkmark if the registrant is a well-known seasoned issuer as defined in Rule 405 of the Securities Act. Yes þ No o

Indicated by checkmark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes o No þ

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to filing requirements for the past 90 days. Yes þ No o

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer þ	Accelerated filer o	Non-accelerated filer o	Smaller reporting company o
		(Do not check if a smaller reporting company)

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes o No þ

As of June 30, 2009, there were 38,588,928 shares of Digital River, Inc. common stock, issued and outstanding. As of such date, based on the closing sales price as quoted by The Nasdaq Global Select Market, 37,783,401 shares of common stock, having an aggregate market value of approximately $1,372,293,000 were held by non-affiliates. For purposes of the above statement only, all directors and executive officers of the registrant are assumed to be affiliates.

The number of shares of common stock outstanding at February 1, 2010 was 38,653,851 shares.

DOCUMENTS INCORPORATED BY REFERENCE

Certain sections of the Registrant’s definitive Proxy Statement for the 2010 Annual Meeting of Stockholders are incorporated by reference in Part III of this Form 10-K to the extent stated herein.

DIGITAL RIVER, INC.

FORM 10-K/A
Fiscal Year Ended December 31, 2009

TABLE OF CONTENTS

PART IV	4
Item 15. Exhibits and Financial Statement Schedules	4
Signatures	7
Exhibit Index	8
EX-10.25
EX-10.26
EX-10.27
EX-10.28
EX-31.1
EX-31.2

2

EXPLANATORY NOTE

          This Amendment No. 1 to the registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009, which was originally filed with the Securities and Exchange Commission (the “Commission”) on February 23, 2010, is being filed solely for the purpose of revising portions of Exhibit 10.25, Exhibit 10.26, Exhibit 10.27 and Exhibit 10.28 (collectively, the “Exhibits”) in order to disclose certain information for which confidential treatment had been requested, in response to comments made by the Commission to the registrant’s request for confidential treatment with respect to the Exhibits. The Exhibits filed with this Amendment No. 1 supersede those exhibits as previously filed as an exhibit to the registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009 filed with the Securities and Exchange Commission on February 23, 2010.

          In addition, as required by Rule 12b-15 of the Securities Exchange Act of 1934, new certifications by our principal executive officer and principal financial officer are included herein as exhibits to this Amendment. This Amendment No. 1 to the registrant’s Annual Report on Form 10-K does not reflect events occurring after the original filing of the Form 10-K or modify or update the disclosure contained therein in any way other than as required to reflect the amendments discussed above.

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PART IV

ITEM 15. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

     (a) The following documents are filed as part of this report:

     (1) Financial Statements.

     The consolidated financial statements required by this item are submitted in a separate section beginning on page 56 of this report.

Report of Independent Registered Public Accounting Firm	55
Consolidated Balance Sheets	56
Consolidated Statements of Income	57
Consolidated Statements of Stockholders’ Equity	58
Consolidated Statements of Cash Flows	59
Notes to Consolidated Financial Statements	60

     (2) Financial Statement Schedules.

All schedules for which provision is made in the applicable accounting regulations of the SEC have been omitted as not required or not applicable, or the information required has been included elsewhere by reference in the financial statements and related notes, except for Schedule II, which is included with this Form 10-K, as filed with the SEC.

     (3) Exhibits

Exhibit
Number	Description of Document
3.1(2)	Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.
3.2(4)	Amended and Restated Bylaws of the Registrant, as currently in effect.
4.1(5)	Specimen Stock Certificate.
4.2(9)	Indenture dated as of June 1, 2004, between Digital River, Inc. and Wells Fargo Bank, N.A. as trustee, including therein the form of the Note.
10.1(5)	Form of Indemnity Agreement between Registrant and each of its directors and executive officers.
10.3(5)	Consent to Assignment and Assumption of Lease dated April 22, 1998, by and between CSM Investors, Inc., IntraNet Integration Group, Inc. and Registrant.
10.4(3)	Assignment of Lease dated April 21, 1998, by and between Intranet Integration Group, Inc. and Registrant.
10.5(3)	Lease Agreement dated January 18, 2000, between Property Reserve, Inc. and Registrant.
10.6(4)	First Amendment of Lease dated January 31, 2001, to that certain Lease dated April 24, 1996, between CSM Investors, Inc. and Registrant (as assignee of Intranet Integration Group, Inc.).
10.7(6)	1998 Stock Option Plan, as amended and superseded by Exhibit 10.18.*
10.8(7)	1999 Stock Option Plan, formerly known as the 1999 Non-Officer Stock Option Plan, as amended and superseded by Exhibit 10.18.*
10.9(6)	2000 Employee Stock Purchase Plan, as amended, and offering.*
10.11(8)	Second Amendment of Lease dated April 22, 2002, to that certain Lease dated April 24, 1996, between CSM Investors, Inc. and Registrant (as assignee of Intranet Integration Group, Inc.) as amended.
10.12(8)	Second Amendment of Lease dated April 28, 2003, to that certain Lease dated January 18, 2000, between Property Reserve Inc. and Registrant.
10.15(9)	Registration Rights Agreement dated as of June 1, 2004, between Digital River, Inc. and the initial purchasers of Senior Convertible Notes due January 1, 2024.
10.16(13)	Summary of Compensation Program for Non-Employee Directors.
10.17(14)	Second Amended and Restated Symantec Online Store Agreement, by and among Symantec Corporation, Symantec Limited, Digital River, Inc. and Digital River Ireland Limited effective April 1, 2006. ‡

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Exhibit
Number	Description of Document
10.18(10)	1998 Equity Incentive Plan (formerly known as 1998 Stock Option Plan).*
10.19(13)	Amended and Restated Employment Agreement for Joel A. Ronning.*
10.20(13)	Change of Control and Severance Agreement for Thomas M. Donnelly.*
10.21(11)	Form of Amendment to Non-Qualified Stock Option Agreement.*
10.22(12)	Inducement Equity Incentive Plan.*
10.23(15)	2007 Equity Incentive Plan.*
10.24(13)	Change of Control and Severance Agreement for Kevin L. Crudden.*
10.25++	Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective September 1, 2006. ‡
10.26++	Direct Reseller Addendum to the Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective September 1, 2006. ‡
10.27++	Omnibus Amendment to the Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective October 4, 2007. ‡
10.28++	Amendment to the Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective December 2, 2008. ‡
10.29(16)	Amendment to the Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective September 9, 2009. ‡
12.1(16)	Computation of Ratio of Earnings to Fixed Charges.
21.1(16)	Subsidiaries of Digital River, Inc.
23.1(16)	Consent of Independent Registered Public Accounting Firm, dated February 23, 2009.
24.1(16)	Power of Attorney, pursuant to which amendments to this Annual Report on Form 10-K may be filed, is included on the signature pages of this Annual Report on Form 10-K.
31.1++	Certification of Digital River, Inc.’s Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2++	Certification of Digital River, Inc.’s Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32(16)	Certification of Digital River, Inc.’s Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

++	Filed herewith.
*	Management contract or compensatory plan.
‡	Confidential treatment has been requested for portions of this agreement, which portions have been filed separately with the SEC.
(1)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on May 4, 2004.
(2)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on June 1, 2006.

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(3)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000.
(4)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2000, filed on March 27, 2001.
(5)	Incorporated by reference from the Company’s Registration Statement on Form S-1 (File No. 333-56787), declared effective on August 11, 1998.
(6)	Incorporated by reference from the Company’s Registration Statement on Form S-8 (File No. 333-105864) filed on June 5, 2003.
(7)	Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2003, filed on August 14, 2003.
(8)	Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2003, filed on May 15, 2003.
(9)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on July 13, 2004.
(10)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on May 31, 2005.
(11)	Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2005, filed on August 9, 2005.
(12)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on December 20, 2005.
(13)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on March 10, 2008.
(14)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, filed on March 1, 2007.
(15)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, filed on February 29, 2008.
(16)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2009, filed on February 23, 2010.

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SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment No. 1 to report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Eden Prairie, State of Minnesota, on August 19, 2010.

DIGITAL RIVER, INC.
By:	/s/ Joel A. Ronning
	Joel A. Ronning
	Chief Executive Officer

Date: August 19, 2010

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Exhibit Index

Exhibit
Number	Description of Document
3.1(2)	Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect.
3.2(4)	Amended and Restated Bylaws of the Registrant, as currently in effect.
4.1(5)	Specimen Stock Certificate.
4.2(9)	Indenture dated as of June 1, 2004, between Digital River, Inc. and Wells Fargo Bank, N.A. as trustee, including therein the form of the Note.
10.1(5)	Form of Indemnity Agreement between Registrant and each of its directors and executive officers.
10.3(5)	Consent to Assignment and Assumption of Lease dated April 22, 1998, by and between CSM Investors, Inc., IntraNet Integration Group, Inc. and Registrant.
10.4(3)	Assignment of Lease dated April 21, 1998, by and between Intranet Integration Group, Inc. and Registrant.
10.5(3)	Lease Agreement dated January 18, 2000, between Property Reserve, Inc. and Registrant.
10.6(4)	First Amendment of Lease dated January 31, 2001, to that certain Lease dated April 24, 1996, between CSM Investors, Inc. and Registrant (as assignee of Intranet Integration Group, Inc.).
10.7(6)	1998 Stock Option Plan, as amended and superseded by Exhibit 10.18.*
10.8(7)	1999 Stock Option Plan, formerly known as the 1999 Non-Officer Stock Option Plan, as amended and superseded by Exhibit 10.18.*
10.9(6)	2000 Employee Stock Purchase Plan, as amended, and offering.*
10.11(8)	Second Amendment of Lease dated April 22, 2002, to that certain Lease dated April 24, 1996, between CSM Investors, Inc. and Registrant (as assignee of Intranet Integration Group, Inc.) as amended.
10.12(8)	Second Amendment of Lease dated April 28, 2003, to that certain Lease dated January 18, 2000, between Property Reserve Inc. and Registrant.
10.15(9)	Registration Rights Agreement dated as of June 1, 2004, between Digital River, Inc. and the initial purchasers of Senior Convertible Notes due January 1, 2024.
10.16(13)	Summary of Compensation Program for Non-Employee Directors.
10.17(14)	Second Amended and Restated Symantec Online Store Agreement, by and among Symantec Corporation, Symantec Limited, Digital River, Inc. and Digital River Ireland Limited effective April 1, 2006. ‡
10.18(10)	1998 Equity Incentive Plan (formerly known as 1998 Stock Option Plan).*
10.19 (13)	Amended and Restated Employment Agreement for Joel A. Ronning.*
10.20(13)	Change of Control and Severance Agreement for Thomas M. Donnelly.*
10.21(11)	Form of Amendment to Non-Qualified Stock Option Agreement.*
10.22(12)	Inducement Equity Incentive Plan.*

8

Exhibit
Number	Description of Document
10.23(15)	2007 Equity Incentive Plan.*
10.24(13)	Change of Control and Severance Agreement for Kevin L. Crudden.*
10.25++	Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective September 1, 2006. ‡
10.26++	Direct Reseller Addendum to the Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective September 1, 2006. ‡
10.27++	Omnibus Amendment to the Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective October 4, 2007. ‡
10.28++	Amendment to the Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective December 2, 2008. ‡
10.29(16)	Amendment to the Microsoft Operations Digital Distribution Agreement, by and among Digital River, Inc. and Microsoft Corporation effective September 9, 2009. ‡
12.1(16)	Computation of Ratio of Earnings to Fixed Charges.
21.1(16)	Subsidiaries of Digital River, Inc.
23.1(16)	Consent of Independent Registered Public Accounting Firm, dated February 23, 2009.
24.1(16)	Power of Attorney, pursuant to which amendments to this Annual Report on Form 10-K may be filed, is included on the signature pages of this Annual Report on Form 10-K.
31.1++	Certification of Digital River, Inc.’s Chief Executive Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2++	Certification of Digital River, Inc.’s Chief Financial Officer, pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32(16)	Certification of Digital River, Inc.’s Chief Executive Officer and Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

++	Filed herewith.
*	Management contract or compensatory plan.
‡	Confidential treatment has been requested for portions of this agreement, which portions have been filed separately with the SEC.
(1)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on May 4, 2004.
(2)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on June 1, 2006.
(3)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 1999, filed on March 30, 2000.
(4)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2000, filed on March 27, 2001.
(5)	Incorporated by reference from the Company’s Registration Statement on Form S-1 (File No. 333-56787), declared effective on August 11, 1998.

9

(6)	Incorporated by reference from the Company’s Registration Statement on Form S-8 (File No. 333-105864) filed on June 5, 2003.
(7)	Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2003, filed on August 14, 2003.
(8)	Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2003, filed on May 15, 2003.
(9)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on July 13, 2004.
(10)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on May 31, 2005.
(11)	Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2005, filed on August 9, 2005.
(12)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on December 20, 2005.
(13)	Incorporated by reference from the Company’s Current Report on Form 8-K filed on March 10, 2008.
(14)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2006, filed on March 1, 2007.
(15)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2007, filed on February 29, 2008.
(16)	Incorporated by reference from the Company’s Annual Report on Form 10-K for the year ended December 31, 2009, filed on February 23, 2010.

10

EX-10.25

Exhibit 10.25

MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT

Certain confidential information contained in this document, marked by asterisks, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.

AGREEMENT SUMMARY AND SIGNATURE PAGE

This Microsoft Operations Digital Distribution Agreement (“Agreement”) is entered into between:

Microsoft Corporation

     A corporation organized under the laws of the State of Washington, U.S.A. (“Microsoft”)

AND

Digital River, Inc.

     A company organized under the laws of the State of Delaware, U.S.A. (“Company”)

Effective and Expiration Dates:	This Agreement commences on September 1, 2006 (the “Effective Date”) and, unless terminated earlier, expires on August 31, 2009 (the “Expiration Date”).
Purpose and Scope:	This Agreement establishes the terms and conditions under which Company shall perform certain E-Commerce Activities for Microsoft, including, distribution, fulfillment and delivery functions related to digital distribution of Microsoft Products.

This Agreement consists of the following:

• This Agreement Summary and Signature Page

• The Contact and Notices Information Page

• The General Terms and Conditions

• Inventory Management Terms and Conditions

• Policies and procedures referenced and incorporated into this Agreement

• The Following Exhibits:

• Exhibit A: Vendor Administrative Guidelines (“VAG”)

• Exhibit B: Non-Disclosure Agreement (Dated October 12, 2001)

• Exhibit C: Microsoft Supply Chain Security Policies and Requirements (Version 4)

• Exhibit D: Template — Affiliate Agreement

• Exhibit E: Microsoft Release Services Manager Site License Agreement

Microsoft and Company enter into this Agreement by signing below.

MICROSOFT CORPORATION	DIGITAL RIVER, INC.
Signature:	Signature:
Print Name:	Print Name:
Title:	Title:
Date:	Date:

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

1

MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT

CONTACT AND NOTICES INFORMATION PAGE

Address for Notices. The parties must send legal notices, including notices relating to a breach or termination of this Agreement or a waiver of any right or obligation in this Agreement, to the address indicated in the Legal Notice Contact Information table below. Each party must notify the other in writing of any changes to the Legal Notice Contact Information. The parties must send any other communication required by this Agreement to the applicable business contact indicated in the Business Contact Information table below.

Legal Notice Contact Information

Microsoft		Company
Street Address, City, State, Country, Zip Code, Facsimile:		Street Address, City, State, Country, Zip Code:
	Kerry Dean, or successor		Tom Venable or successor
	One Microsoft Way		9625 West 76th Street
	Redmond, WA, U.S.A. 98052-6399		Eden Prairie, Minnesota 55344
	Fax # 425-936-7329
Notices Contact(s):		Notices Contact(s):
With Copy To:		With Copy To:
	Legal & Corporate Affairs
	Microsoft Operations Attorney		Kevin Crudden
	One Microsoft Way		9625 West 76th Street
	Redmond, WA 98052-6399		Eden Prairie, Minnesota 55534
	Fax # 425-936-7329

Notices must be in writing. Notices shall be deemed given on the day deposited in the mail (postage prepaid, certified or registered, return receipt requested) or sent by recognized national or international air express courier with charges prepaid.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

2

GENERAL TERMS AND CONDITIONS

     1. Certain Definitions. As used in this Agreement, the terms below have the following meanings.

          (a) “Affiliate” means, with respect to an entity, any person or entity that directly or indirectly controls, is controlled by, or is under common control with that entity. For purposes of this definition, to “control” means (i) to have the right to control, through the ownership of or contractual right to vote securities or through other means, the election of directors of a corporation, or (ii) to own a majority of the voting power or the beneficial interests in income and capital of an entity other than a corporation.

          (b) “Agreement” means (i) the Agreement Summary and Signature Page, (ii) the Contact and Notices Information Page, (iii) these General Terms and Conditions, (iv) any additional terms and conditions, Exhibits and SOWs attached to this Agreement, and (v) any policies or procedures referenced in this Agreement.

          (c) “Authorized Party” means a third party designated by Microsoft in a SOW or other writing: (i) from whom Company may acquire services or Inventory; (ii) to whom Company may provide services or Inventory; or (iii) for whom Company may manage or handle Inventory.

          (d) “Customer” means an End-User or Authorized Party to whom Company is permitted to deliver Inventory or disburses rebates or refunds, or from whom Company is permitted to receive Inventory returns, orders for Inventory, requests for Inventory returns or funds, as specified in this Agreement.

          (e) “Deliverables” means all Intellectual Property or other work product expressly requested by Microsoft, paid for directly or indirectly by Microsoft and developed by Company for Microsoft under a SOW.

          (f) “E-Commerce Activities” means any services specified under a SOW, which may include: (i) Inventory manufacturing, assembly, replication, repair, refurbishment, delivery, returns and warehousing; (ii) Customer service activities related to handling Inventory orders, processing payments, rebates, Product identification keys or codes; and/or (iii) the resale of Products and upgrades and the performance of order transaction and digital download and fulfillment functionalities.

          (g) “Facility” means the premises that are (i) controlled by Company (or, where approved in accordance with this Agreement, by Company’s Subcontractor) and (ii) expressly designated in an applicable SOW as an approved location at which E-Commerce Activities may be performed.

          (h) “Including” means including without limitation.

          (i) “Insolvent” means the condition of a party’s debts exceeding the fair value of its assets; or, when a party has incurred debts beyond that party’s ability to pay the debts as they mature; or, when a party is engaged in a business or transaction for which the party has unreasonably small capital.

          (j) “Intellectual Property” means all intellectual property rights throughout the world, whether existing under statute or at common law or equity, now or hereafter in force or recognized, including: (a) copyrights, trade secrets, trademarks and servicemarks, patents, inventions, designs, logos and trade dress, “moral rights,” mask works, publicity rights, and privacy rights; and (b) any application or right to apply for any of the rights referred to in clause (a), and all renewals, extensions and restorations.

          (k) “Inventory” means any tangible or intangible item containing or covered by Microsoft Intellectual Property that is manufactured, assembled, replicated, delivered, distributed, stored or handled, whether physically or digitally, by Company under this Agreement, whether complete or a work-in-progress. For the sake of clarity, Inventory might, in some but not necessarily all cases, consist of Products or components of Products.

          (l) “Materials” means tangible and intangible items provided by Microsoft, or by an Authorized Party on behalf of Microsoft, to Company for use in performing the E-Commerce Activities (e.g., software, materials associated with a Product, kits, equipment, data from the Microsoft designated Product support service database, Product application notes, tools, etc.). For the sake of clarity, “Materials” shall not include any Products obtained by Company outside of this Agreement, such as Products licensed to Company under a Microsoft volume license agreement or obtained by Company through the retailer.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

3

          (m) “Personal Information” means information provided by Microsoft or collected by Company in connection with this Agreement that identifies or can be used to identify, contact, or locate the person to whom such information pertains. Personal Information includes: name, address, phone number, fax number, email address, social security number or other government-issued identifier, and credit card information. Additionally, to the extent any other information (including a personal profile, unique identifier, biometric information, and/or IP address) is associated or combined with Personal Information, then that information is also Personal Information.

          (n) “Product” means any product, service, subscription or other item typically sold or licensed either directly or indirectly by Microsoft to its end-users, whether tangible or intangible, with respect to which E-Commerce Activities may be provided under this Agreement (e.g., Microsoft-branded or Microsoft proprietary software or hardware).

          (o) “SOW” means a services order referring expressly to this Agreement, signed by authorized representatives of both parties and describing Services to be performed and any associated additional terms and conditions.

          (p) “Subcontractor” means a third party to whom Company delegates specified obligations that Company would otherwise be required to perform under this Agreement. For the sake of clarity, Microsoft Affiliates or Authorized Parties from whom Company is directed or permitted to acquire materials or obtain services in connection with its performance of the E-Commerce Activities are not intended to fall within the definition of a Subcontractor as that term is used in this Agreement.

          (q) “VAG” means the Microsoft Vendor Administrative Guidelines.

          (r) “Company IP” means Company pre-existing or independently developed proprietary tools, processes or Intellectual Property.

     2. E-Commerce Activities.

          (a) Performance of E-Commerce Activities; Compliance with Laws. Company shall perform the E-Commerce Activities in compliance with this Agreement, all Microsoft policies and procedures referenced in this Agreement, and each applicable SOW. When performing the E-Commerce Activities, Company shall comply with all applicable local, state and federal laws regulations and ordinances. Company shall, at its own expense, obtain and maintain any approvals, permits, licenses, filings or registrations necessary and related to the performance of the E-Commerce Activities.

          (b) No Exclusivity; No Minimum Commitments. This Agreement does not grant the Company an exclusive right to provide Microsoft any of the E-Commerce Activities or Inventory which Microsoft may require from Company. Microsoft may contract with third parties for the procurement of comparable or similar E-Commerce Activities or Inventory. Microsoft makes no representation or commitment that the scope or level of services or other terms and conditions for any one vendor will be the same as or similar to any other Microsoft vendor. Company is entering into this Agreement without any expectations of any such similar treatment. Nothing in this Agreement shall be construed as creating a minimum commitment for business on the part of Microsoft to Company.

          (c) E-Commerce Activities to Microsoft or Authorized Parties. Microsoft may exercise its rights under this Agreement directly and/or indirectly through Authorized Parties designated by Microsoft in the applicable SOW. Microsoft shall have the right to update the list of Authorized Parties who may engage the Company under this Section 2(c) from time to time. Authorized Parties are not authorized to act on behalf of Microsoft except as expressly provided in this Agreement, or otherwise expressly authorized by Microsoft in the SOW or in writing. Company agrees to extend all rights and privileges under this Agreement to those Authorized Parties, including pricing, when those Authorized Parties are acting indirectly on behalf of Microsoft, provided, however, that such Authorized Parties will not be considered third-party beneficiaries of this Agreement and will have no right to enforce any of the terms hereof.

          (d) Restrictions on the Scope of E-Commerce Activities.

               (i) Company shall perform the E-Commerce Activities only at the Facilities approved in each applicable SOW, and shall not move or consolidate E-Commerce Activities among or between Facilities without Microsoft’s written permission.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

4

               (ii) Company shall only provide the E-Commerce Activities to Microsoft, or to Authorized Parties located in the geographical territories designated in an applicable SOW. The foregoing will not be deemed to limit Company’s right to provide products or services (other than the E-Commerce Activity) to any other party.

               (iii) If the E-Commerce Activities are being provided with respect to particular Products, Company shall perform the E-Commerce Activities only with respect to those Products as designated by Microsoft in the applicable SOW.

          (e) Company’s Personnel, Subcontractors and Affiliates.

               (i) Appointment of Account Manager. Company shall appoint one or more individuals to serve as account manager(s) for the E-Commerce Activities. These individuals are listed in the Contact and Notices Information Page. Account managers shall ensure timely and accurate communication between the parties. Company may change account managers on a ten (10) day prior written notice to the corresponding Microsoft business contacts listed on the Contact and Notices Information Page.

               (ii) Selection, Training and Removal of Personnel. Company shall be solely responsible, at its cost, for recruiting, selecting and training its personnel for the performance of the E-Commerce Activities. If training requirements are identified in the applicable SOW, Company shall ensure that the necessary personnel are given the training in a timely manner. Company shall use persons qualified to perform the E-Commerce Activities. Company will not be entitled to charge Fees (as defined in Section 3) for E-Commerce Activities performed by personnel who have not completed training requirements specified in an applicable SOW. At Microsoft’s good faith request and for any business reason, Company shall promptly remove or replace any individual performing E-Commerce Activities. Company shall be responsible for the acts and omissions of its employees.

               (iii) Use of Subcontractors. Company may subcontract the performance of any E-Commerce Activities to any Subcontractor only with the prior written approval of the applicable Microsoft Business Contact or as expressly designated in an applicable SOW. If Microsoft approves the use of a Subcontractor, the following requirements shall apply:

                    (A) Company shall guarantee the Subcontractor’s fulfillment of applicable Company obligations under this Agreement;

                    (B) Company shall require each Subcontractor to consent in writing to any relevant terms, conditions and policies set forth in this Agreement (including confidentiality obligations, obligations with respect to Personal Information, security requirements, insurance requirements, Microsoft’s right to conduct audits, and requirements regarding record-keeping and reporting) and to acknowledge in writing that Microsoft is an intended third-party beneficiary of those terms and conditions.

                    (C) Company shall make all payments to Subcontractor.

                    (D) If Company fails to pay a Subcontractor, Microsoft shall have the right (but not the obligation) to pay such Subcontractor and to offset any amounts due to Company with amounts paid to the Subcontractor, unless Company provides assurances reasonably acceptable to Microsoft that the non-payment will not adversely affect or encumber any E-Commerce Activities, Inventory or Materials.

                    (E) [*]

                    (F) If E-Commerce Activities are being performed in the United States, use commercially reasonable efforts to ensure that, of the total amount paid by Company to non-Affiliate Subcontractors operating in the United States to provide E-Commerce Activities under each SOW, Company spends at least five percent (5%) with Minority Owned and Operated Businesses and at least five percent (5%) with Women Owned and Operated Businesses. For purposes of this subsection: “Minority-Owned and Operated Businesses” means businesses which are at least fifty-one percent (51%) owned by a Minority Person or Persons or, in the case of any publicly owned business, at least fifty-one percent (51%) of the stock of which is owned by a Minority Person or Persons, and whose management and daily business operations are controlled by one or more of the same Minority Person or Persons having ownership interest. “Minority Person or Persons” means one or more individuals who is/are USA citizens residing in the United States and is/are either African-American/Black, Hispanic, Asian-American/Pacific Islander (including native Hawaiians), Asian Indian, and/or Native American/American Indian (enrolled in a federally recognized tribe). “Women-Owned and Operated Businesses” means businesses which are at

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

5

least fifty-one percent (51%) owned by one or more women residing in the United States, or, in the case of any publicly owned business, at least fifty-one percent (51%) of the stock of which is owned by one or more women residing in the United States, and whose management and daily business operations are controlled by one or more of the same women having ownership interest.

               (iv) Use of Company Affiliates. Company may use its Affiliates to perform certain E-Commerce Activities under this Agreement only with the prior written approval of the applicable Microsoft account manager or as expressly designated in an applicable SOW, provided that:

                    (A) the Company Affiliate agrees to the same obligations, limitations and restrictions imposed on Company under this Agreement;

                    (B) the Company Affiliate executes an Affiliate Agreement with Microsoft in a form substantially similar to the one attached hereto as Exhibit D; and

                    (C) Company guarantees its Affiliates’ fulfillment of the applicable obligations imposed on Company under this Agreement.

          (f) Company’s Technology.

               (i) Selection and Compatibility of Technology. Except for Materials provided to Company or when otherwise provided in the applicable SOW, Company shall, at its own costs, provide all equipment, technology, and infrastructure for performing the E-Commerce Activities. Company shall ensure that these items are compatible with Microsoft equipment, technology and infrastructure as necessary to perform the E-Commerce Activities.

               (ii) [*]

               (iii) Avoidance of Illicit Code. Company shall not introduce any computer virus or other illicit code into any Accessible System, Inventory, Materials or Deliverables, or into any Company IP or other Intellectual Property that is licensed to Microsoft by Company under this Agreement, if any.

               (iv) Use of Microsoft Technology. When performing the E-Commerce Activities, where a suitable Microsoft product or technology platform exists, Company shall use commercially reasonable efforts to utilize such Microsoft product or technology platform, but shall have no obligation to replace any existing non-Microsoft product or technology platform as a result of this subsection.

               (v) Independent Audit. Company shall have security assessments and audits conducted by an independent security auditor no less than twice a year and shall make the findings of such audits and assessments available to Microsoft upon request.

          (g) Company’s Duty of Ongoing Improvement and to Apply Best Practices. Company shall pursue commercially reasonable opportunities to reduce fees and costs associated with the performance of the E-Commerce Activities, and to improve performance, without compromising the quality of the E-Commerce Activities, Deliverables or Inventory.

          (h) Performance Review. At the frequency specified in each applicable SOW, and at other times that Microsoft requests, Company and Microsoft shall meet to review Company’s performance and discuss issues related to the E-Commerce Activities, including Company’s compliance with the performance standards described in the applicable SOW and this Agreement.

          (i) Company’s Duty to Cooperate in Fraud-Prevention Efforts. Company shall have commercially reasonable processes and procedures in place in order to prevent any occurrence of fraud with regard to the E-Commerce Activities. If reasonably requested by Microsoft, Company must work with Microsoft to develop an internal investigation team to detect, investigate and prevent fraud related to the E-Commerce Activities. Company shall also cooperate with Microsoft in the investigation of counterfeit, pirated or illegal software and report to Microsoft, as soon as possible after it comes to Company’s notice, any suspected counterfeiting, piracy or other infringement of any Microsoft Intellectual Property. In addition, Company shall not:

               (i) engage in or fail to report fraud or infringement relating to Microsoft Intellectual Property in any form;

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

6

               (ii) knowingly use or manufacture counterfeit, pirated or illegal software;

               (iii) knowingly engage in the warehousing, distribution, supply or transfer of counterfeit, pirated or illegal software; and

               (iv) knowingly supply any Product or Inventory to any person known to be engaged or have engaged in the use, manufacturing, distribution or other supply or transfer of counterfeit, pirated or illegal software.

          (j) Company’s Use of Microsoft Facilities. Company shall not use Microsoft facilities other than as expressly authorized by a SOW. While on Microsoft’s premises, Company shall comply with Microsoft’s then-current physical and information security policies. Company shall ensure that any of its personnel that are issued access cards or Microsoft e-mail accounts execute the necessary agreements reasonably required by Microsoft and comply with all applicable Microsoft policies. Company shall remove any of its personnel from Microsoft’s premises upon Microsoft’s request. If any Company personnel encounter any unsafe conditions while on Microsoft’s premises, Company shall notify Microsoft promptly in writing indicating the nature and location of the hazard, and shall require its personnel to take additional safety measures as reasonably necessary to reduce the risk of injury. If Company becomes aware that a “significant” injury to someone or damage to property has occurred on Microsoft premises, Company shall notify Microsoft promptly and provide adequate details to enable Microsoft to investigate the cause. For the purpose of this subsection, “significant” means injury to a person that results in hospital treatment, or damage to or loss of property with an estimated value in excess of Ten Thousand United States Dollars ($10,000.00).

          (k) Access to Microsoft Systems and Tools. If necessary to perform the E-Commerce Activities, Microsoft may give Company access to certain Microsoft systems and tools. If such access is given, Company shall comply with all Microsoft security and access policies related to those systems and tools as provided by Microsoft from time-to-time. Specifically, Company shall comply with the Microsoft Release Services Manager Site License Agreement attached hereto as Exhibit E.

          (l) Export and Trade Controls.

               (i) Company acknowledges that the Products and Inventory and Products are subject to U.S. export jurisdiction. Company agrees to comply with all applicable international and national export control and customs compliance laws and regulations that apply to the Products and the Inventory, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments (where applicable). Microsoft shall make US Export Control Classification Numbers and Schedule B Codes for the Products or Inventory available to Company on http://www.microsoft.com/exporting/. For additional information, see http://www.microsoft.com/exporting/.

               (ii) Company shall comply with the trade requirements set forth in the applicable SOW.

               (iii) Company agrees to verify and maintain the non-preferential and preferential country of origin data for all Products or Inventory delivered under this Agreement. Company is responsible for the overall content and accuracy of all Company invoices involved in the making of customs declarations in the country of destination.

     3. Compensation for E-Commerce Activities.

          (a) Microsoft’s Payment of Fees & Pass-Through Costs. If applicable for under an applicable SOW, Microsoft shall pay Company those fees described in each SOW (“Fees”). [*] Unless otherwise expressly provided in the SOW or in writing by Microsoft, Company shall invoice Microsoft for all Microsoft-approved expenses (“Pass-through Costs”). [*]

          (b) MS Invoice Requirements. Company shall invoice Microsoft for all Fees and, if applicable, Pass-through Costs via the “MS Invoice” online tool in accordance with the then-current requirements at http://invoice.microsoft.com and in the VAG. Company shall not charge Microsoft for researching, reporting on or correcting any errors relating to its invoices. Invoices shall not bear an invoice date earlier than the date on which Company is entitled to be paid under the applicable SOW, or if not specified in the applicable SOW, invoices may be issued monthly in arrears.

          (c) Payment by Microsoft. Upon acceptance of the applicable E-Commerce Activities, Deliverables and/or Inventory (in accordance with any acceptance criteria provided in this Agreement and in each applicable SOW,

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

7

and, if no such criteria are provided, then in accordance with criteria reasonable under the circumstances) and receipt of a correct and undisputed invoice, Microsoft shall:

               (i) [*]

               (ii) [*]

               (iii) if applicable, pay Pass-through Costs net sixty (60) days with no discount; and

               (iv) pay the amounts in accordance with Microsoft’s then-current payment policies (e.g., payment via ACH electronic payment to Company’s financial institution per instructions in Microsoft’s ACH electronic payment form).

          (d) [*]

     4. Microsoft Policies and Procedures. Company shall adhere to the then-current and applicable Microsoft policies and procedures described in this Section and this Agreement. These policies and procedures are expressly referenced and incorporated into this Agreement and they are either attached as exhibits to this Agreement and/or provided to Company via the web site addresses listed below (or any successor site or communication designated by Microsoft). While Company must comply with these policies and procedures, mere compliance does not necessarily waive or diminish Company’s obligation to comply with any other provision in this Agreement.

          (a) Vendor Administrative Guidelines. Company shall comply with the VAG. A copy of the current VAG is attached hereto as Exhibit A.

          (b) Trademark Usage Requirements. When permitted to use Microsoft name, trademarks or servicemarks (“Trademarks”) under this Agreement and any applicable SOW, Company shall only use those Trademarks as permitted by the applicable SOW as necessary to perform the E-Commerce Activities, and shall comply with the standard guidelines established by Microsoft and located at http://www.microsoft.com/trademarks/.

          (c) Microsoft Supply Chain Security Policies and Procedures. Company shall comply with the Microsoft Supply Chain Security Compliance Policies and Requirements, attached hereto as Exhibit C.

          (d) Changes to Microsoft Policies and Procedures. Microsoft may update or modify the policies and procedures from time to time. All updates or modifications shall be effective thirty (30) days after notifying one of Company’s account managers, unless the parties agree otherwise in writing. If Company determines, in its reasonable discretion, that changes to a policy or procedure will cause a material change in the delivery schedule, Fees or other costs applicable to the E-Commerce Activities, then Company shall promptly notify Microsoft. Upon receipt of a detailed explanation from Company regarding the material change, the parties shall discuss in good faith extending the compliance effective date or otherwise implementing a corrective action plan to enable Company to comply with the updated or modified policy or procedure.

     5. Ownership and Use of the Parties’ Respective Intellectual Property.

          (a) Company’s Use of Materials.

               (i) License to Use Materials. In consideration of the Company’s performance of the E-Commerce Activities under the terms of this Agreement, Microsoft grants Company, and Company accepts a non-exclusive, nontransferable, revocable (but only as described below), and limited license to use the Materials and Trademarks during the term of this Agreement or the applicable SOW solely to the extent necessary to perform the applicable E-Commerce Activities and subject to the restrictions and limitations provided for in this Agreement. Microsoft, or if applicable its suppliers and licensors, reserve all other rights, title, and interest in and to all Materials and all related Intellectual Property. Company has no right to sublicense the rights granted under this Agreement, except as necessary to any Subcontractor or Company Affiliate with Microsoft’s prior written consent, which consent shall not be unreasonably withheld, Company shall not modify, reverse engineer or decompile any Materials, and shall not remove any proprietary notices or licenses contained in any Materials. Company is responsible for all actions taken by any individual authorized or purporting to be authorized by Company in connection with accessing or using the Materials. If the Materials are accompanied by a separate license (including any license with respect to the use of software embedded on any equipment provided to Company), the terms of that license shall also apply, but the provisions of this Agreement shall control in the case of any conflict between this Agreement and those license terms.

               (ii) Use of Equipment and Tools. If the Materials include any computer hardware or other equipment or tools (“Equipment”), or if Microsoft requires Company to build or acquire any Equipment to be used in

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

8

connection with the performance of E-Commerce Activities, the following additional requirements will apply to Company’s use of the Equipment, except to the extent that the parties agree otherwise in a written agreement (e.g., a separate Equipment lease or purchase agreement):

                    (A) Company shall use the Equipment only for the performance of the E-Commerce Activities;

                    (B) Company shall assume the risk of, and take all reasonable precautions to protect Equipment and tools against, loss, damage, theft or disappearance;

                    (C) Company shall take no action which affects Microsoft’s or its authorized third party lessor’s title or interest in the Equipment;

                    (D) Company shall maintain, use and service the Equipment in accordance with the applicable manufacturer’s specifications and instructions.

                    (E) Unless otherwise specified in the applicable SOW, Microsoft shall not provide technical or maintenance support to Company in connection with any Equipment; and

                    (F) Company shall place labels identifying the Equipment and/or tools as Microsoft’s or the lessor’s property.

               (iii) Termination of License and Return of Materials. The license to use Materials and/or Trademarks is limited to the term of the applicable SOW and this Agreement. This license may be revoked by Microsoft with respect to a particular Material or Trademark (A) if Microsoft receives an allegation that such Trademark or Material infringes a third party’s intellectual property rights or (B) for a good faith business justification, including, but not limited to, any action designed to protect Microsoft’s legal interests, so long as, in each case, Microsoft provides Company with a reasonable notice of revocation. Upon termination of the license in whole or in part, Company shall promptly return any Materials related thereto to Microsoft upon request.

          (b) Company’s Use of Non-Microsoft Intellectual Property in the Performance of E-Commerce Activities.

               (i) Use of Third Party Intellectual Property. Company shall provide Microsoft with a list of any Company IP, and of any material third party Intellectual Property, that it intends to use in the performance of the E-Commerce Activities prior to such use. Company shall update such list periodically and as needed (the “Updated List”). Microsoft shall have the right to disapprove the use of any particular material third-party Intellectual Property in the provision of E-Commerce Activities by providing written notice to Company within ten (10) days of the receipt of Company’s Updated List, such notice to describe such problems in reasonable detail.

               (ii) Limitation on Use of Company and Third Party Intellectual Property That Could Encumber Microsoft Intellectual Property. Company must obtain Microsoft’s express approval before using any third party Intellectual Property, or any Company IP, in a manner that would cause it to:

                    (A) be incorporated into any Inventory or Deliverables;

                    (B) alter or affect Microsoft’s ownership interests in any Inventory or Deliverables; or

                    (C) be required for the Inventory or Deliverables to be used or distributed by Microsoft or any Customer.

               (iii) License to Company IP That Is Incorporated Into or Required For the Use of Deliverables or Inventory. If Company IP is incorporated into any Inventory or Deliverable, or is necessary for the unfettered use or distribution of any Inventory or Deliverable by Microsoft or any Customer, then, unless the parties agree in writing on applicable license terms, Company is hereby deemed to grant to Microsoft and its Affiliates a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up right and license, including under all current and future Intellectual Property, in each case, solely to the extent necessary to use or distribute such Inventory or Deliverable, as applicable, to:

                    (A) use the applicable Company IP;

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

9

                    (B) publicly perform or display, transmit and distribute, copies of the applicable Company IP; and

                    (C) sublicense to third parties the foregoing rights, including the right to sublicense to further third parties.

               (iv) Rights to Third Party Intellectual Property That Is Incorporated Into or Required For the Use of Deliverables or Inventory. If Company intends to incorporate any third party Intellectual Property into any Inventory or Deliverable, or uses any third party Intellectual Property in a manner that makes it necessary for the unfettered use or distribution of any Inventory or Deliverable by Microsoft or any Customer, then in addition to obtaining Microsoft’s prior written approval, Company shall obtain all rights in the applicable third party Intellectual Property needed to grant Microsoft the same rights provided in the preceding Subsections 5(b)(iii)(A)-(C).

          (c) Ownership and Use of Deliverables.

               (i) Ownership of Deliverables. Except as expressly permitted in a SOW, all Deliverables shall be originally created by Company for Microsoft. Subject to Company’s retention of its rights in any Company IP, except as otherwise expressly provided in a SOW, all Deliverables are “work made for hire” for Microsoft under applicable copyright law. To the extent any Deliverables do not qualify as a work made for hire, Company hereby assigns to Microsoft (and its successors and assigns) all rights, title and interest in and to the Deliverables, including all Intellectual Property rights therein. To the maximum extent permitted by law, Company waives all moral rights that may exist in the Deliverables. Deliverables shall include any data entered into any Company database in connection with performance of the E-Commerce Activities.

               (ii) Company’s Assistance. Company shall promptly disclose to Microsoft, in writing, any inventions, works of authorship, improvements, developments or discoveries conceived, authored, made or reduced to practice by Company or its Affiliates or Subcontractors, either solely or in collaboration with others, in connection with performing the E-Commerce Activities, excluding, however, any inventions, works of authorship, improvements, developments or discoveries primarily relating to Company’s staff or Company’s business models or internal systems or processes. At Microsoft’s request and expense, Company shall execute documents and take any other action necessary to evidence, perfect or protect Microsoft’s rights in the Deliverables. Company shall cooperate with Microsoft in the filing and prosecution of any copyright, trademark or patent applications that Microsoft may elect to file on the Deliverables. Company hereby irrevocably appoints Microsoft as Company’s attorney-in-fact (which appointment is coupled with an interest) to execute those documents on Company’s behalf. Company shall not challenge, oppose or interfere with any Microsoft applications relating to the Deliverables or file any applications on its own behalf.

               (iii) Inventions. Any inventions, ideas, designs, concepts, techniques, discoveries, improvements or enhancements including, without limitation, software code, whether or not patentable (collectively, “Inventions”), which are modifications or improvements of, or based on, the Intellectual Property of a party developed or created by the other party in the course of performing obligations or services, including E-Commerce Activities under this Agreement shall be owned by the party owning the underlying Intellectual Property. Any custom development work requested by one party to be undertaken by the other party shall only be undertaken pursuant to a written agreement specifying the terms and conditions under which the development work, including ownership of any Inventions, shall be undertaken.

               (iv) [*]

               (v) Title and Non-Infringement with Respect to E-Commerce Activities, Deliverables and Company IP. Company represents and warrants that to its knowledge, the use of the E-Commerce Activities, Deliverables, and any Company IP or third party Intellectual Property licensed to Microsoft under this Agreement by Microsoft or its Customers as contemplated by this Agreement will not infringe or violate any patent, copyright, trademark, trade secret or other proprietary right of any third party.

               (vi) Company Intellectual Property. Except as otherwise expressly provided in a SOW, notwithstanding anything to the contrary herein, Company retains all right, title and interest in and to all copyright, including all renewals and extensions thereof and including the rights to prepare and distribute derivatives thereof, for all works created, made or conceived by Company (A) prior to the Effective Date, or (B) in support of Company staff or Company’s business model, internal systems or processes. Microsoft acknowledges that all rights on Company IP not expressly granted hereunder are without limitation reserved by Company.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

10

          (d) Restrictions Related to Use of Publicly Available Software. Except with the express written consent and approval of Microsoft, Company shall ensure that no Deliverables, and no Company IP or other Intellectual Property licensed to Microsoft hereunder, are governed, in whole or in part, by any license requiring, as a condition of use, modification and/or distribution, that the software or other software combined and/or distributed with it be: (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributed at no charge.

     6. Reports, Audits & Inspections.

          (a) Reporting. Company will comply with the reporting requirements identified in each applicable SOW, or otherwise reasonably requested by Microsoft (each instance a “Report”). Company shall use commercially reasonable efforts to ensure that all Reports are accurate, complete, provided timely and in the format required under the applicable SOW. [*]

          (b) Record-Keeping Requirements. Company shall keep detailed and accurate books and records related to the E-Commerce Activities, Products, Materials and Inventory for a period equal to the greater of (i) the time period required by any applicable laws, including the laws of any local jurisdiction applicable to such records, or (ii) the time period set forth in an applicable SOW, or (iii) four (4) years. Records shall, where appropriate and unless otherwise indicated in a SOW, be kept in accordance with generally accepted accounting principles. These records shall include records regarding any delivery, transfers-out, returns, damage or corruption to, or recovery, of any Inventory or Materials.

          (c) Financial Information. Microsoft shall have the right to examine Company’s publicly available financial information and statements to allow Microsoft to determine whether Company is capable of continuing to perform its obligations under this Agreement. If Company’s financial statements cease to be public or are not publicly available, at any time upon Microsoft’s request, Company shall provide to Microsoft a copy of its financial statements (including balance sheets and related statements of income and retained earnings, and statements of changes in financial condition) certified by an officer of Company. To the extent these financial statements are audited, the audit report of the certified public accountant performing the audit shall also be made available to Microsoft. Whether or not Company’s financial statements are publicly available, if Microsoft finds the information made available to Microsoft to be insufficient or incomplete in any material manner, then, at the request of Microsoft, Company shall submit to Microsoft additional financial information that it reasonably requests. Company financial information shall be considered Confidential Information as defined in the NDA and subject to Section 7 of this agreement.

          (d) Audit.

               (i) During the term of this Agreement and for a period of four (4) years thereafter, upon at least forty-eight (48) hours’ notice, Microsoft may audit Company’s books and records during normal business hours to verify accuracy and compliance with the terms of this Agreement. Such audit shall be limited to the books and records from the twenty-four (24) month-period immediately preceding the date of any such audit. Company will provide Microsoft or its agents with access to the relevant records and the right to make copies of those records for audit evidence. In conducting any audit, Microsoft will not unreasonably interfere with Company’s business operations, and shall cooperate with Company to ensure that Company is able to protect its own and its other customers’ proprietary information. Company shall promptly correct all discrepancies discovered during an audit. Microsoft may not exercise its audit rights more than once in any twelve (12) month period unless an audit reveals the Company’s material noncompliance with this Agreement. Audits and inspections shall be conducted by Microsoft representatives and/or inspection team, or any independent certified public accountant or consultant selected by Microsoft.

               (ii) Microsoft shall pay for each audit except that if an audit shows Company overcharged Microsoft by five percent (5%) or more of the amounts due for any audited period of time, Company shall, in addition to re-computing and making immediate refund payments to Microsoft of all overpayments, pay Microsoft for all reasonable costs and expenses actually paid by Microsoft to third parties in conducting such audit, including any amounts paid to any outside auditor. For the avoidance of doubt, nothing in this provision is intended to provide Microsoft with access to Company records relating to other clients of Company, or to Company activities not related to the E-Commerce Activities provided under this Agreement.

          (e) Facility Inspections. Microsoft may cause an inspection to be made, with at least three (3) business days’ prior notice, of any Facility (including its security systems, communications and computing networks) solely as necessary to verify Company’s compliance with this Agreement (including security requirements). Inspections shall be conducted during regular business hours and in a manner that does not unreasonably interfere with Company’s business operations and complies with all of Company’s then-current physical and information security

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

11

policies. Company shall provide Microsoft, or its agents, access to relevant records and areas of the Facility. Company may designate a representative to accompany Microsoft’s inspectors and may reasonably restrict access to any section of the Facility containing confidential information of Company or its customers so long as that restriction does not unreasonably interfere with the audit. Microsoft’s rights of inspection will extend to any approved Subcontractor or Affiliate of Company. Company shall inform its Microsoft-approved Subcontractor or Affiliate of Microsoft’s right to inspect and will use reasonable efforts to secure such rights for Microsoft and assist Microsoft with any such inspection.

          (f) Sarbanes-Oxley Compliance; SAS-70 Report. Company shall comply with all applicable Microsoft required documentation related to or required under the United States Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”) and that shall not do or omit to do anything in connection with the E-Commerce Activities to prejudice compliance by Microsoft with its obligations pursuant to Sarbanes-Oxley. Microsoft agrees that Company’s annual provision of a SAS 70, Type II Audit will constitute full compliance with Company’s obligations under this Section. Any further documentation requested shall be provided at Microsoft’s sole cost and expense and shall be considered Confidential Information as defined in Section 7 of this Agreement and subject to all the protection and controls provided for in the NDA.

     7. Confidentiality, Privacy, Data Protection and Publicity.

          (a) Confidentiality. The respective confidentiality obligations of the parties regarding this Agreement are set out in the confidentiality and non-disclosure agreement dated October 12, 2001 (the “NDA”) attached hereto as Exhibit B and incorporated by reference. In addition to any information defined as confidential in the NDA, the following information shall be deemed to be confidential for purposes of the NDA:

               (i) the existence and terms of this Agreement; and

               (ii) information provided by a party under this Agreement or obtained or created by a party in the course of performing this Agreement, including (A) information contained in any reports provided to Microsoft, (B) any electronic or written correspondence between the parties, (C) customer lists, Personal Information regardless of the source, subject to the terms and conditions set forth in this Agreement regarding Personal Information, and (D) transactional, sales and activity information related to the E-Commerce Activities.

          (b) Limitations on Company’s Collection and Use of Personal Information.

               (i) Limitations on Collection and Use of Personal Information. Company shall not access or collect any Personal Information except to the extent strictly necessary to perform the E-Commerce Activities or to fulfill any legal requirements, and shall not use Personal Information accessed or collected while performing the E-Commerce Activities for any purpose other than those expressly permitted by this Agreement. If the E-Commerce Activities involve the collection of personal information directly from individuals, such as through a webpage, Company shall provide a clear and conspicuous notice regarding the uses of the personal information. The notice shall comply with all relevant guidelines contained at http://members.microsoft.com/vendorguide or otherwise provided by Microsoft.

               (ii) Limitations on Disclosure of Personal Information. [*] If Company is served with a court order compelling disclosure of any Personal Information or with notice of proceedings for such an order, Company shall oppose the order, shall notify Microsoft of the order or notice, and shall provide Microsoft the opportunity to intervene before Company files any response to the order or notice, all at Microsoft’s expense.

               (iii) Protection of Personal Information. Company shall take reasonable steps to protect Personal Information in Company’s possession from unauthorized use, access, disclosure, alteration or destruction. Security measures shall include access controls, encryption and other means, where appropriate. Company must immediately notify Microsoft of any known security breach that may result in the unauthorized use, access, disclosure, alteration or destruction of Personal Information. Company shall conduct an audit on at least an annual basis to evaluate the security of Personal Information in Company’s possession and to verify that the terms of this Agreement with respect to Personal Information are being followed. The results of the audit shall be made available to Microsoft on request.

               (iv) Return or Destruction of Personal Information. Upon request from Microsoft, Company shall provide Microsoft with Personal Information collected on Microsoft’s behalf and in Company’s possession. Within ten (10) days following termination or expiration of this Agreement, Company shall, at Microsoft’s sole discretion, either:

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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                    (A) provide Microsoft with all documents and materials (including all copies) containing Personal Information collected on Microsoft’s behalf and, together with all other materials and property of Microsoft, which are in its possession or under its control; or

                    (B) destroy all specified documents and materials (including all copies in all formats) and provide Microsoft with a certificate of destruction signed by an officer of Company. As an exception to the foregoing, unless Microsoft directs otherwise, Company may retain a copy of Personal Information solely to the extent necessary to comply with its record-keeping requirements under the preceding Section 6 (Reports, Audits & Inspections).

          (c) Publicity. Except as otherwise required by applicable laws and regulations, neither party shall issue press releases, publicity, or other disclosure in any form that relate to the relationship with the other party or the Agreement without the other party’s prior written approval. Except as permitted in the applicable SOW, neither party shall use the other party’s names or trademarks in any marketing materials or web sites. Each party is required to obtain written permission from the other party before using the party’s name or any of its Affiliates’ names in client presentations or in responses to requests for client lists (e.g., as part of a Request for Proposal or Request for Information).

     8. Security.

          (a) Company’s Obligation to Protect Materials, Inventory and Confidential Information. In addition to its compliance with any other terms and conditions set forth in this Agreement, applicable policies and procedures, and any specific requirements contained in an applicable SOW, Company shall implement and maintain commercially reasonable security procedures and measures at its Facilities (including physical lock/key security, computer and communications network security and data security) designed to prevent disclosure of Confidential Information to any unauthorized persons or any damage to Materials, Inventory or Confidential Information. Company shall notify Microsoft immediately in the event of any breach or failure to comply with these or any other security or data protection requirements set forth in this Agreement or of any breach of its security affecting any E-Commerce Activities, Materials, Deliverables, Inventory or Microsoft Intellectual Property.

          (b) [*]

          (c) Subcontractor Audits. Company shall perform security reviews and audits of any Subcontractors who provide call center, fulfillment, and data center services. Company shall provide Microsoft, upon Microsoft’s written request, all documentation related to such reviews and audits together with all necessary corrective action reports.

          (d) Protecting Facilities Restricted Areas. Company shall ensure that all third parties accessing the restricted areas where Microsoft E-Commerce Activities are being performed are bound by confidentiality agreements that require those third parties to comply with the confidentiality requirements of this Agreement (including the NDA) and any such access shall be in accordance with Company policies and procedures in effect on the date of such access.

     9. Disaster Planning; Obligations in Event of Unavoidable Delay.

          (a) Disaster Planning. Company shall implement and maintain a measurable, documented disaster recovery plan to ensure continuity and quality of the E-Commerce Activities and Inventory (“Disaster Plan”). The plan must include, at a minimum, implementation procedures, weather-related, labor-related, system-related and telecommunications contingencies and a mitigation plan in the event of these or other foreseeable events that are outside Company’s reasonable control. [*]

          (b) Obligations in the Event of Unavoidable Delay.

               (i) [*] Where the performance of E-Commerce Activities is delayed by reason of an act of Force Majeure, Company and Microsoft shall enter into bona fide discussions with a view to alleviating the effects of such act of Force Majeure or of agreeing upon such alternative arrangements as may be fair and reasonable.

               (ii) Company shall not be liable for any failure to comply with any obligations hereunder where such failure is caused by any reason beyond its reasonable control including, but not limited to, act of God, riot, act of terrorism, accident, fire, and war, (each a “Force Majeure”) AND Company has otherwise complied with its obligations under this Agreement (including all parts of Section 9 and of its Disaster Plan). Where a strike, lockout, trade dispute

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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or labor disturbance does not directly involve Company, its Affiliates and/or its Sub-contractors, Company shall use its best efforts to continue to provide and perform the E-Commerce Activities without interruption or delay in performance, and Company shall not be liable for any interruption or delay in performance arising from such strike or other labor difficulties where such interruption or delay in performance arises notwithstanding its utmost efforts in this regard. Where difficulty in obtaining labor, materials or transport, or the occurrence of any strike, lock out, trade dispute or other labor disturbance does directly involve the Company, the occurrence of such act shall not be considered to be outside the Company’s reasonable control and shall not excuse any delay in Company’s performance, notwithstanding that such strikes or other labor difficulties are not capable of being terminated on terms acceptable to the party affected. Where the performance of any E-Commerce Activities shall be delayed by reason of an act of Force Majeure for more than sixty (60) days either party may, upon written notice to the other, terminate the affected SOW or SOWs (or, in the event all open SOWs are affected, this Agreement) without further obligation except to make payment for E-Commerce Activities already rendered and any obligation with respect to any surviving provision as set forth in Section 15(e), in which event the provisions of Section 15 shall apply. Without prejudice to the foregoing, Microsoft may suspend performance to the Company under this Agreement and may itself perform or appoint a third party to perform the E-Commerce Activities during any period during which Company is affected by an act of Force Majeure without liability to make or pay any compensation to Company. If within sixty (60) days, Company is able to return to reasonably normal business operations, regardless of the existence of a Force Majeure, Microsoft and Company will resume performance under this contract. Nothing contained herein shall be construed as granting Microsoft any rights in or to Company Intellectual Property or Company Confidential Information, nor shall anything contained herein prevent Microsoft from withholding payment or applying performance credits for any non-performance regardless of the cause.

     10. Insurance Requirements. Company warrants that it shall maintain sufficient insurance coverage to enable it to meet its obligations created by this Agreement and by law. Without limiting the foregoing, Company warrants that its insurance shall, at a minimum, include the following lines of coverage (with minimum limits of $2,000,000 per occurrence) to the extent the Agreement creates exposures generally covered by these insurance policies: Commercial General Liability (Occurrence Form) including product liability, Workers’ Compensation (statutory limits), Crime, Professional Liability and Errors & Omissions Liability, Automobile and Employer’s Liability. Company shall name Microsoft, its Affiliates, and their respective directors, officers and employees as additional insureds in the Commercial General Liability policy, to the extent of contractual liability assumed by Company under this Agreement.

     11. Taxes. This Section governs the treatment of all taxes arising in connection with this Agreement notwithstanding any other section of this Agreement.

          (a) Tax Obligations Generally. Microsoft is not liable for any taxes that Company is legally obligated to (collect or) pay and which are incurred or arise in connection with the manufacture, storage or sale of Inventory or the performance of E-Commerce Activities by Company or its Subcontractors. Microsoft shall pay Company any sales, use or value added taxes owed by Microsoft solely as a result of entering into this Agreement or a subsequent SOW and which are required to be collected from Microsoft by Company under applicable law. Microsoft may provide Company with a valid exemption certificate, and Company shall not collect taxes covered by the certificate. If taxes are required to be withheld on any amount to be paid by Microsoft to Company, Microsoft shall deduct them from the amount owed and pay them to the appropriate taxing authority. Microsoft shall secure and deliver to Company an official receipt for any taxes withheld. Microsoft shall use reasonable efforts to minimize such taxes to the extent permissible under applicable law.

          (b) Tax Obligations Relating to Company’s E-Commerce Activities. If Company is required to make payments to Microsoft under any SOW (e.g., Inventory royalty payment), then Company shall pay Microsoft any sales, use or value added taxes owed by Company solely as a result of entering into this Agreement or a subsequent SOW and which are required to be collected from Company by Microsoft under applicable law. If taxes are required to be withheld on any amount to be paid by Company to Microsoft, Company shall deduct them from the amount owed and pay them to the appropriate taxing authority. Company shall secure and deliver to Microsoft an official receipt for any taxes withheld. Company shall use reasonable efforts to minimize such taxes to the extent permissible under applicable law. Company shall remit to the appropriate taxing authority any duties, taxes, imposts, fees of charges on any Inventory delivery to a Customer where no billing or collection services are involved (“Transfer Taxes”). Company shall invoice Microsoft for such Transfer Taxes in accordance with Section 3 of this Agreement.

     12. Disclaimer of Implied Warranties. TO THE MAXIMUM EXTENT PERMISSABLE BY LAW, THE PARTIES HEREBY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND/OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE E-COMMERCE ACTIVITIES, PRODUCTS, INVENTORY OR MATERIALS, WHETHER OR NOT ARISING FROM TRADE USAGE OR A COURSE OF DEALING. THIS

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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DISCLAIMER IS NOT INTENDED TO LIMIT ANY EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT.

     13. Remedies. Except as provided below, none of the remedies listed in this Section shall be deemed the exclusive remedies. In addition, the parties agree to the following specific remedies:

          (a) Indemnification.

               (i) Mutual Indemnity. Each party shall defend the other party and its directors, officers, employees, agents, subsidiaries and affiliates (each an “Indemnified Party”) against any third party or governmental claim, lawsuit, investigation, regulatory determination, action, demand or administrative, judicial or other proceeding (collectively, “Third Party Claims”), and indemnify and hold harmless each Indemnified Party for and from all damages, taxes, costs, losses and liabilities arising out of Third Party Claims, to the extent those Third Party Claims arise from:

                    (A) any material breach of this Agreement by the other party or its Affiliates or Subcontractors;

                    (B) the negligent or willful acts of the other party or its Affiliates or Subcontractors resulting in any bodily injury or death to any person or loss, disappearance, or damage to tangible or intangible property; or

                    (C) acts or omissions of the Indemnified Party undertaken or omitted at the direction or on the instructions of the indemnifying party.

               (ii) Microsoft’s Limited Indemnity for Infringement. Microsoft shall defend Company and its directors, officers, employees, agents, subsidiaries and affiliates in a lawsuit or other judicial action, and pay the amount of any adverse final judgment (or settlement to which Microsoft consents), including any reasonable legal fees, arising from any lawsuit or other judicial action brought against Company by any third party that claims or alleges that any Product or Materials infringe any patents, trademarks, trade secrets or copyrights in any territory in which Company is authorized to perform E-Commerce Activities with respect to the Product or Materials (“IP Claim”). Microsoft’s obligations shall not apply to the extent the IP Claim arises out of Company’s (1) modification of Materials or Inventory other than as directed by Microsoft, (2) combination of Materials or Inventory with any non-Microsoft product, program or data other than as directed by Microsoft, (3) acquisition of a trade secret through improper means, under circumstances giving rise to a duty to maintain its secrecy or limit its use, or from a party other than Microsoft or its Affiliates that owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret, or (4) distribution of Inventory or Materials by Company after Microsoft directs it to stop, or (5) failure to make changes or implement updates with respect to any Materials after they have been made available to Company.

               (iii) Notice of Claims. The Indemnified Party shall provide the indemnifying party with reasonably prompt notice of each Third Party Claim or IP Claim to permit the indemnifying party to answer and defend the Third Party Claim or IP Claim. Upon receipt of such notice, the Indemnifying party shall respond in writing to the tender of defense within twenty (20) days of receipt of such notice. The Indemnified Party shall provide the indemnifying party with reasonable information and assistance, at the indemnifying party’s expense, to help defend any Third Party Claim or IP Claim. The Indemnified Party shall have the right to employ separate counsel and participate in the defense of any Third Party Claim, at its own expense. With respect to IP Claims, Microsoft shall have the exclusive right to undertake the defense against the IP Claim and to select the counsel to handle the IP Claim. A failure by the Indemnifying Party to respond in writing to the tender of defense within the time specified in this subsection will be deemed a waiver of any objection to its obligation to defend the Indemnified Party, but not a waiver of the indemnifying party’s rights to object to any subsequent obligation to indemnify or to hold harmless the Indemnified Party. In the event the Indemnifying Party fails to respond to a tender of defense, the Indemnified Party shall thereafter have the right to control the defense of such Third Party Claim or IP Claim, including the right to select which law firm defends the claim. In the event the Indemnifying Party rejects the tender of defense or fails to undertake and continue such defense or fails (in the Indemnified Party’s reasonable opinion) to adequately pursue or conduct such defense, the Indemnifying Party will be liable for 100% of any legal fees and expenses incurred by the Indemnified Party to compel the Indemnifying party to honor its obligations under this Section, regardless of the comparative negligence or fault of the Indemnified party, and the Indemnifying Party expressly waives any right it may have under statutory or common law that might operate to make the recovery of fees under this subsection (iii) a mutual right. For the avoidance of doubt, if each party tenders the defense of the same Third Party Claim or an IP Claim to the other, and unless there can be no good faith dispute that the underlying conduct giving rise to the Loss was solely within the control of Company,

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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Microsoft shall defend both parties against the Third Party Claim or IP Claim, subject to any rights to recoup its defense expenses under this subsection (iii).

               (iv) Settling Claims. Neither party may settle any Third Party Claim or IP Claim on the other party’s behalf, or publicize the settlement, without the other party’s prior written permission, unless the settlement is for a monetary amount that is fully covered by that party’s indemnity and the settlement does not require an admission of fault or impose any other obligation other than the payment of money. In any event, Company shall not settle any claim that any Microsoft Intellectual Property infringes any third party’s intellectual property rights without Microsoft’s consent.

          (b) Company’s Duties In Connection with Infringing Deliverables, E-Commerce Activities and Company IP. Company shall indemnify Microsoft from any claim that the use of the E-Commerce Activities, Deliverables and any Company IP or third party Intellectual Property licenses to Microsoft under this Agreement by Microsoft or any of its Customers as contemplated by this Agreement, infringe or violate any patent, copyright, trademark, trade secret or other proprietary right of any third party. Company shall notify Microsoft if a court of competent jurisdiction holds that any Deliverable, or any Company IP or other Intellectual Property licensed to Microsoft by Company under this Agreement, infringes a third party proprietary right. Moreover, if the use of any Deliverable or any Company IP or other Intellectual Property licensed to Microsoft by Company is enjoined or threatened to be enjoined, then Company shall, at its expense and at its option, either:

               (i) procure the right for Microsoft to continued use the Deliverables, Company IP or other Intellectual Property in accordance with this Agreement; or

               (ii) replace or modify the Deliverables, Company IP or other Intellectual Property so that it is non-infringing and meets the requirements of this Agreement to Microsoft’s reasonable satisfaction.

          If either of the actions described in the immediately preceding subsections (i) or (ii) is not fulfilled within thirty (30) days after the injunction or threat of injunction, Microsoft shall have the right to terminate the Agreement and/or any affected SOW. Upon Microsoft’s written demand, Company shall refund all amounts paid by Microsoft for infringing Deliverables or E-Commerce Activities.

          (c) Specific Remedy for Misuse or Loss of Microsoft Property. Upon Company’s misuse or loss of any Inventory or Materials that was not sold to an End-User or otherwise transferred in a manner prescribed or permitted by this Agreement or by Microsoft, Company shall reimburse and pay Microsoft as follows:

               (i) for digital or physical Inventory where activation is required, upon reasonable proof of activation, Company shall pay Microsoft the full amount that Microsoft would have been entitled to receive from Company had the Inventory been sold in the normal course of business (the “Estimated Retail Value”), and where there is no reasonable proof of activation, Company shall pay Microsoft the replacement value of the Inventory components and related processing costs for such Inventory (the “Estimated Cost of Replacement”); or

               (ii) for digital or physical Inventory where activation is not required for the use by a End-User, Company shall pay Microsoft the Estimated Retail Value of the Inventory

               (iii) if Company unlawfully, improperly, or without prior authorization from Microsoft removes, retains, possesses, misappropriates, loses, damages or fails to return Materials or any other Microsoft property or Intellectual Property, other than Inventory, Company shall fully compensate Microsoft at Microsoft’s estimated retail price (or market or replacement value, if applicable) for that property.

          (d) Certain Remedies in Case of Non-Conforming E-Commerce Activities or Deliverables. If Microsoft rejects any E-Commerce Activities or Deliverables or they are found by Microsoft to be non-conforming or defective, then at Microsoft’s request and in accordance with the requirements set forth in the applicable SOW, Company shall correct the E-Commerce Activities with respect to those non-conforming items.

          (e) Injunctive Relief. Either party may seek injunctive relief and other equitable remedies in the event of a breach of this Agreement. The availability of injunctive relief will be a cumulative and not an exclusive remedy available to the parties.

     14. Exclusion of Consequential Damages.

          (a) EXCLUSIONS. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS OR LOST OPPORTUNITIES; COSTS OF COVER OR ANY PUNITIVE OR EXEMPLARY DAMAGES) ARISING

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTIES OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE.

          (b) EXCEPTIONS TO EXCLUSIONS. THE EXCLUSIONS DESCRIBED IN SUBSECTION (a) DO NOT APPLY TO:

               (i) A PARTY’S DUTY TO INDEMNIFY THE OTHER PARTY;

               (ii) FRAUD;

               (iii) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS (INCLUDING THE BREACH OF OBLIGATIONS RELATED TO PERSONAL INFORMATION AND DATA) UNDER THIS AGREEMENT; OR

               (iv) A PARTY’S MISUSE OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY.

     15. Termination.

          (a) Termination For Convenience by Microsoft. Microsoft may terminate this Agreement, or any particular SOW, effective on one hundred and eighty (180) days’ written notice, unless the SOW provides otherwise, at any time with or without cause.

          (b) Termination For Cause.

               (i) Microsoft may terminate this Agreement, or any particular SOW, in the event of the Company’s material breach or failure to substantially perform its obligations under this Agreement (including failure to submit Reports), but only where written notice of the breach or failure to perform is provided by Microsoft to Company, and the breach or failure to perform is not cured within thirty (30) calendar days of the Company’s receipt of such notice. Company may terminate or suspend performance under this Agreement, or any particular SOW, in the event of Microsoft’s material breach or failure to substantially perform its obligations under this Agreement, but only where written notice of the breach or failure to perform is provided by Company to Microsoft, and the breach or failure to perform is not cured within thirty (30) calendar days of Microsoft’s receipt of such notice.

               (ii) Notwithstanding the foregoing:

                    (A) Either party may terminate this Agreement, or any particular SOW, and Company may terminate or suspend its performance under this Agreement or any particular SOW, in the event of material breach of any provision of this Agreement relating to limitations on the use and/or protection of the Intellectual Property, Confidential Information, or Personal Information of such party, unless such breach is cured within five (5) business days of receipt of notice of the same by a party; and

                    (B) Either party may terminate this Agreement, or any particular SOW, and Company may terminate or suspend its performance under this Agreement or any particular SOW, immediately upon written notice to the other party in the event of (i) the material violation of the privacy policy of either party; (ii) the commission of a fraudulent or criminal act by either party having a material adverse effect on the other party; (iii) if the other party becomes Insolvent; (iv) if the other party executes any assignment for the benefit of creditors or becomes the subject of any proceeding under any bankruptcy, insolvency, liquidation, moratorium or other debtor relief laws, whether voluntary or involuntary, which is not dismissed or terminated within sixty (60) days after the commencement of such proceeding; (v) if the other party sells or transfers all or a substantial part of its assets to a third party (including by merger with another entity), or there is otherwise a change in the control of the other party (for purposes of this subsection, one entity “controls” another if the entity directly, or indirectly through an Affiliate, holds the majority of the voting rights in that entity, or has the right to appoint or remove a majority of its board of directors, or controls alone or under an agreement with others the majority of the voting rights in it); or (vi) if the other party assigns this Agreement in violation of Section18; and

                    (C) In the case of an assertion against Microsoft of claims relating to products liability, Company’s may suspend or remove the Product from Company’s performance under this Agreement or any particular SOW, whereupon Company shall immediately provide written notice to Microsoft.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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                    (D) In the case of a third-party assertion against Company of IP Claim relating to Microsoft’s Products, Company may, upon providing Microsoft with a reasonable written notice remove the affected Product from Company’s performance under this Agreement if Company presents to Microsoft, in writing, sufficient proof of the Company’s likelihood of suffering irreparable harm if removal of the Product does not take place. If the litigating parties resolve the IP Claim, Company shall immediately resume performance of E-Commerce Activities with respect to the affected Product.

                    (E) Notwithstanding anything to the contrary set forth herein, the right to terminate shall apply only to the particular SOW or SOWs affected by the breach or condition giving rise to the right of termination, unless all SOWs are so affected, in which event the terminating party may elect to terminate this Agreement and all SOWs.

          (c) Effect of Termination or Expiration. Within ten (10) days after the date of termination or expiration of the Agreement (or any SOW where applicable), except as otherwise provided in this Agreement, Company shall deliver to Microsoft or to any other location designated by Microsoft all related Inventory or Deliverables and all data and materials related thereto, in a format designated by Microsoft. Each party shall return the other party’s Confidential Information to that party, except to the extent Microsoft permits Company to retain any Confidential Information in connection with its record-keeping obligations under this Agreement or, in the case of the termination of a particular SOW, where that Confidential Information relates to other SOWs not terminated. Each party agrees that its obligations under this subsection and subsection (i) below are independent of any disputes or claims it may have against the other party, and that it shall not use its control over Inventory, Deliverables, Confidential Information, data or other materials related to the E-Commerce Activities to achieve any advantage with respect to any dispute or claim.

               (i) Effect of Termination for Convenience. If Microsoft terminates this Agreement or a particular SOW for convenience under Section 15(a) above, Microsoft will have no further obligation to Company, except for the payment of undisputed Fees and Pass-Through-Costs earned or approved prior to the termination date (and, in the case of the termination of a particular SOW, any obligations applicable to any SOWs not yet terminated) and any obligations arising from surviving sections as provided for in Section 15(e).

          (d) [*]

          (e) Surviving Sections. The provisions of this Agreement which, by their terms, require performance after the termination or expiration of this Agreement, or have application to events that may occur after the termination or expiration of this Agreement, shall survive the termination or expiration of this Agreement.

     16. Governing Law; Consent to Jurisdiction. This Agreement shall be construed under and enforced in accordance with the laws of the State of New York, U.S.A. without regard to any rules governing conflicts of laws. Parties agree to exclusive jurisdiction and venue of courts in the state and federal courts sitting in New York County, New York.

     17. Relationship. This Agreement creates an independent contractor relationship between the parties. This Agreement does not constitute an offer by Microsoft and shall not be effective until signed by both parties. Except as required under this Agreement or any SOW, Company shall not enter into any agreement, contract, or arrangement with any government or government representative or with any person, firm, corporation, partnership or other enterprise imposing or purporting to impose legal obligations or liability on Microsoft. Except as otherwise approved by Microsoft, Company shall not make representations or warranties on behalf of Microsoft with regard to any Product or Inventory in the course of performing any E-Commerce Activities. Company’s employees or Subcontractors shall not be construed to be Microsoft employees; Company shall pay any taxes, insurance or benefits with respect to its personnel and will, upon request, provide Microsoft with satisfactory proof of independent contractor status. Unless otherwise set forth elsewhere in this Agreement, there are no third party beneficiaries under this Agreement.

     18. Assignment. Neither party may sell, assign, transfer, pledge or encumber this Agreement or any right, or delegate any duty or obligation under this Agreement, by assignment or operation of law without the other party’s prior written consent, which consent shall not be unreasonably withheld. The Agreement shall inure to the benefit of and bind all permitted successors, assigns, receivers and trustees of each party.

     19. No Waiver. Failure or delay by a party to exercise any right or remedy shall not be a waiver and shall not prevent the enforcement of that or any other right.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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     20. Severability. If a court of competent jurisdiction finds any provision of the Agreement to be unenforceable, then the Agreement shall be deemed amended to exclude the provision and the remainder of the Agreement shall continue in full force and effect.

     21. Amendments and Addition or Changes to SOWs. Except as otherwise provided in this Agreement, all amendments to (i) the Agreement Summary and Signature Page, (ii) the Contact and Notices Information Page, (iii) these General Terms and Conditions, (iv) any additional terms and conditions, and (v) any addendums created hereunder must be in a non-electronic writing (e.g., not email) expressly amending this Agreement and signed by authorized representatives of both parties.

          (a) Adding SOWs. The parties may add E-Commerce Activities to this Agreement by executing SOWs describing the applicable E-Commerce Activities. Company is not authorized to perform the applicable E-Commerce Activities until the SOW is signed by both parties. Any Microsoft Affiliate may enter into SOWs with Company under this Agreement. Upon adding a SOW, the parties shall update and execute a new Agreement Summary and Signature Page to reflect the additional SOW(s) and any additional Terms and Conditions and/or additional policies to be added to the Agreement in connection with the additional SOW. However, the failure to execute an updated Agreement Summary and Signature Page, for whatever reason, shall not render any additional SOW invalid where it has otherwise been entered into in accordance with this Subsection.

          (b) Change to Scope of E-Commerce Activities. Microsoft may update the description of E-Commerce Activities to be provided under a SOW in its sole discretion, via written notice to Company (the “Update Notice”). Except as described below in this subsection, the updated E-Commerce Activities description shall be effective ten (10) business days after Company’s receipt of the Update Notice. If Company determines in its reasonable discretion that the updated E-Commerce Activities scope causes a material change in the delivery schedule, Fees or other costs applicable to the E-Commerce Activities, it shall notify Microsoft within ten (10) business days of receipt of the Update Notice. The parties will then follow the procedures described below.

               (i) Within ten (10) business days after receipt of the Update Notice, Company shall provide Microsoft with a proposal explaining in detail how the request will change the E-Commerce Activities delivery schedule, Fees or costs for the applicable E-Commerce Activities.

               (ii) Microsoft may accept or reject the proposal, in its sole discretion. If Microsoft accepts the proposal, the revised E-Commerce Activities scope and any changes to the schedule, Fees or Pass-through Costs shall be described in a written amendment to the applicable SOW signed by both parties.

               (iii) If Microsoft rejects the proposal, Microsoft will then be free to have the E-Commerce Activities performed by a third party.

     22. Entire Agreement; Order of Precedence. This Agreement (including all terms and conditions, policies and procedures, Exhibits and SOWs referenced on the Agreement Summary and Signature Page, attached to this Agreement, or signed by the parties and expressly made a part of this Agreement) supersedes all prior and contemporaneous communications, whether written or oral, regarding the matters agreed to herein. This Agreement does not replace any separate written license agreement between Microsoft and the Company. Except as otherwise provided, in the event of an irreconcilable conflict between any addendum created under this Agreement and this Agreement, such addendum controls with respect to any SOW expressly referencing the Addendum. Except as otherwise expressly provided, in the event of an irreconcilable conflict between the provisions of different parts of this Agreement, the parts shall control in the following order: (a) these General Terms and Conditions; (b) any additional Terms and Conditions listed on the Agreement Summary and Signature Page; (c) any policies and documents referenced in this Agreement; (d) any exhibits to this Agreement (except for the Microsoft Release Services Manager Site License Agreement which shall control only with respect to Company’s access to the Release Services Manager tool); and (e) any Statements of Work. In the event of a conflict between this Agreement and any SOW created hereunder, the provisions of the SOW with respect to such conflicting provisions shall control over this Agreement, provided, however, that such conflicting provisions expressly reference the specific Section in the Agreement that the parties intend to amend or supersede AND the SOW is first approved in writing by Microsoft Legal & Corporate Affairs (“LCA”), such approval to be manifested by the affixation of LCA’s stamp approving the version of the SOW actually signed by Microsoft. In the event such LCA approval is not secured and the conflicting provision does not reference this Agreement, the provisions of this Agreement shall control and the provisions contained in the SOW shall be voidable at Microsoft’s election.

END OF GENERAL TERMS AND CONDITIONS

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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INVENTORY MANAGEMENT TERMS AND CONDITIONS

These Inventory Management Terms and Conditions describe the rights and obligations of Company and Microsoft applicable when the Company is handling Inventory, including replication, manufacturing, assembly, storage, fulfillment and distribution. The following terms and conditions shall supplement the General Terms and Conditions.

     IM-1. Microsoft Inventory and Related Materials — Term Defined. For the purposes of these Inventory Management Terms and Conditions and this Agreement, the terms below shall have the following meanings:

          (a) “BOM” means the bill of materials provided by Microsoft to Company which identifies all components and raw materials comprising a given Product or Product Component. Microsoft may, at its sole discretion, modify the BOMs in writing prospectively.

          (b) “Components” means those parts listed on the BOM or specified by Microsoft in writing, other than (i) Microsoft-provided parts, or (ii) Materials.

          (c) “Microsoft Inventory and Related Materials” means, collectively, (i) Inventory, (ii) Materials and (iii) any raw materials or Components in which title has vested in Microsoft.

     IM-2. Performance. Company shall replicate, manufacture, assemble, store, fulfill or distribute Inventory in accordance with the BOMs and any related specifications provided by Microsoft in writing in the SOW or otherwise. Company shall also procure all necessary supplies, Components and raw materials in compliance with the BOMs and any related specifications provided by Microsoft as necessary to timely perform the E-Commerce Activities under this Agreement and any applicable SOW.

     IM-3. Title Vested in Microsoft; Company’s Role as Bailee and Trustee.

          (a) Title to Inventory and Raw Materials and Company’s Related Rights. As between Company and Microsoft, Microsoft shall at all times own all Inventory and Materials.

          (b) Title to Raw Materials and Components. Unless otherwise agreed between the parties, title in any raw materials or Components acquired in connection with the E-Commerce Activities shall vest in Microsoft upon the occurrence of one of the following events:

               (i) the raw materials or Components are combined with, incorporate or are incorporated into Materials or other Microsoft Intellectual Property; or

               (ii) Company has received payment for those raw materials or Components from Microsoft or an Authorized Party on behalf of Microsoft; or

               (iii) Company has received raw materials or Components ordered based on a binding forecast provided by Microsoft; or

               (iv) Microsoft has exercised the option to acquire raw materials or Components as described in this Agreement.

          (c) Effect of Forecasts; Option to Purchase Raw Materials. Forecasts provided by Microsoft are non-binding unless the applicable SOW expressly provides otherwise. Nevertheless, to the extent raw materials or Components acquired in connection with the performance of E-Commerce Activities are unused, Microsoft shall have the option to purchase those raw materials or Components. Microsoft may assign this option to any of its Affiliates. Microsoft or its Affiliates may exercise the option at any time by providing fifteen (15) days’ written notice to Company. The purchase price shall be (a) the price set forth in the applicable SOW; or (b) if no price is set forth in the SOW, then Company’s actual costs and expenses (without any markup).

          (d) Company’s Role Merely Possessory; Obligations as Bailee.

               (i) Company’s Status and Obligations as Bailee or Consignee. Company holds Microsoft Inventory and Related Materials solely for Microsoft’s benefit as bailee (or, in the case of Inventory which Company is authorized to sell on behalf of Microsoft, as consignee). In keeping with that role, Company shall:

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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                    (A) conspicuously label all Microsoft Inventory and Related Materials “Property of Microsoft” and keep those items separated from any other materials, supplies or inventory belonging to Company or any third party;

                    (B) keep Microsoft Inventory and Related Materials free and clear of any liens, claims or encumbrances other than those in favor of Microsoft;

                    (C) immediately notify Microsoft of any threatened foreclosure or other claim adverse to Microsoft’s interest in Microsoft Inventory and Related Materials; and

                    (D) not assert and shall waive any right of offset, lien or other interest in Microsoft Inventory and Related Materials.

               (ii) Declaration of Trust. Company agrees that, until delivery of any Microsoft Inventory and Related Materials to Microsoft or any Authorized Party is completed (e.g., placed into Microsoft’s control or otherwise disposed of pursuant to Microsoft’s instructions), Company shall, with respect to each of those items:

                    (A) hold any item in trust for the sole benefit of Microsoft and for the purposes of performing the E-Commerce Activities under this Agreement;

                    (B) account for the disposition of the item at the times and in the manner requested by Microsoft; and

                    (C) present the item, including in its balance sheets and in any representations to its creditors or others, as trust property and not as assets belonging to Company or any of its Affiliates.

          (e) Company’s Grant of Security Interest.

               (i) Precautionary Grant. For precautionary purposes only and in order to make a public record of Microsoft’s ownership of Microsoft Inventory and Related Materials, Company grants to Microsoft a continuing, first priority security interest in all Microsoft Inventory and Related Materials ever possessed or controlled by Company.

               (ii) Company’s Obligation to Cooperate with Microsoft. Company shall cooperate with Microsoft, as Microsoft may reasonably request, to give effect to the security interest. Company authorizes Microsoft to file the necessary documentation that Microsoft deems appropriate to perfect and maintain the security interest. Company shall execute and deliver all documents and take any actions reasonably requested by Microsoft to protect its interest in Microsoft Inventory and Related Materials.

               (iii) Acknowledgement from Company’s Creditors. Company shall provide Microsoft, upon request, an acknowledgment from any creditor of Company having a security interest in Company’s tangible or intangible assets, in a form acceptable to Microsoft, that the creditor has no security interest in, and will not assert a security interest in, any Microsoft Inventory and Related Materials.

     IM-4. Management of Inventory.

          (a) General. Where applicable, Company shall accurately track and manage all Microsoft Inventory and Related Materials in strict compliance with this Agreement. Company shall not modify any Microsoft Inventory and Related Materials except as expressly permitted by the applicable SOW.

          (b) Company’s Protection of Inventory and Materials.

               (i) Company shall protect all Microsoft Inventory and Related Materials against loss or injury while the Microsoft Inventory and Related Materials are under its control and/or in its possession. Company shall not store Microsoft Inventory and Related Materials in any manner or in proximity to anything that could cause deterioration of or damage to the Microsoft Inventory and Related Materials.

               (ii) If the Microsoft Inventory and Related Materials pose a material hazard to property or persons (a “Hazard”), Company shall promptly notify Microsoft as soon as possible. Unless expressly prohibited by law, the notice will be given to Microsoft prior to notice to any governmental agency. Company shall promptly

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

21

provide Microsoft with all relevant data and review and discuss the information, tests, and conclusions relating to the alleged Hazard and the basis for any contemplated recall or other remedial action, including moving the Inventory to another location within the Facility or to another Facility. If the Hazard is Company’s fault or is caused by circumstances within Company’s reasonable control, Company shall pay all costs of any remedial action including any of Microsoft’s resulting out-of-pocket costs. Company shall, upon request and at its expense, provide Microsoft and/or Microsoft’s designees all reasonable assistance in determining how best to deal with the Hazard, and preparing for and making any presentation before any governmental agency which may have jurisdiction over any aspect of any Hazard. All information regarding a Hazard in any Microsoft Inventory is Microsoft Confidential Information (as defined in the NDA).

               (iii) Except as permitted in this Section, Company shall not move Microsoft Inventory and Related Materials from the applicable Microsoft-approved Facility to another facility without Microsoft’s prior written approval.

          (c) Company’s Storage and Disposition of Damaged or Returned Product. Company shall separate all damaged or otherwise non-saleable Inventory while awaiting Microsoft’s instructions about disposition. Company shall dispose of damaged or otherwise non-saleable Inventory (e.g., make it saleable, tender it for recycling, etc.) in strict compliance with Microsoft’s instructions and in accordance with the applicable SOW. Unless instructed by Microsoft, Company shall not salvage any damaged Inventory and shall take all steps required of it to prevent others from salvaging the Inventory.

          (d) Detention and Demurrage. Company shall be responsible for all detention and demurrage charges incurred in connection with storing or handling Inventory. Company shall keep records concerning detention of vehicles to assist Microsoft and Company in processing any objection to a carrier’s imposition of detention charges.

          (e) Disposition of Inventory and Work in Progress. In the event of the termination or expiration of this Agreement, and except as otherwise provided in this Agreement or a SOW, the following shall apply to the disposition of Inventory:

               (i) Disposition of Inventory and Work in Progress — Binding Forecast or Order: For any finished Inventory and work-in-progress held or controlled by Company and manufactured, built, assembled, replicated or procured (or that is being manufactured, built, assembled, replicated or procured) based on a binding forecast or purchase order, Company shall, at Microsoft’s written request and at Microsoft’s sole option:

                    (A) deliver the finished Inventory and any work in progress to a location designated by Microsoft at Microsoft’s expense;

                    (B) complete the work-in-progress and deliver it along with any previously finished Inventory to a location designated by Microsoft at Microsoft’s expense; or

                    (C) dispose of the finished Inventory and work in progress in the manner designated by Microsoft in the applicable SOW or in writing. Microsoft shall pay Company the Fees and costs related to finished Inventory and work in progress disposed pursuant to this Subsection.

               (ii) Disposition of Inventory and Work in Progress — Non-Binding Forecast: For any finished Inventory or work-in-progress held or controlled by Company and manufactured, built, assembled, replicated or procured (or that is being manufactured, built, assembled, replicated or procured) based on a non-binding forecast, Microsoft may, at its sole option:

                    (A) request the delivery of that Inventory and work-in-progress to a location designated by Microsoft at Microsoft’s expense and subject to Microsoft’s obligation to pay for the Inventory and work in progress in accordance with this Agreement;

                    (B) request that the Company complete the work-in-progress and deliver the thus-completed Inventory, along with any previously finished Inventory, to a location designated by Microsoft at Microsoft’s expense and subject to Microsoft’s obligation to pay the Fees related to that work; or

                    (C) dispose of the Inventory and work-in-progress in the manner designated by Microsoft in the applicable SOW or in writing, at the Company’s costs and expense.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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     IM-5. [*]

     IM-6. [*]

     IM-7. Manufacturing Standards and Quality Control. If Company is manufacturing any Inventory, the following additional terms shall apply:

          (a) Manufacturing Standards. Company shall manufacture any Inventory in strict compliance with any specifications provided in an applicable SOW. In addition, Company agrees that any Inventory shall be provided free from any defects in design, manufacture, materials or workmanship and suitable for their intended purposes, and shall comply with applicable health, safety, environmental and other applicable laws and regulations. Except in accordance with the terms of this Agreement, the applicable SOW or as otherwise authorized in writing by Microsoft, Company shall not alter the Inventory or any component thereof without the specific prior written consent of Microsoft, and shall have no authority to make copies of Microsoft software or documentation. Company shall not include any other product or informational piece, including without limitation literature, documentation and advertising, with any Inventory without the prior written consent of Microsoft.

          (b) [*]

END OF INVENTORY MANAGEMENT TERMS AND CONDITIONS

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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EXHIBIT A

TO:	THE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT
BETWEEN:	MICROSOFT CORPORATION AND DIGITAL RIVER, INC.
DATED:	September 1, 2006
NAME	Microsoft Vendor Administrative Guidelines

VENDOR GUIDELINES

1. OVERVIEW.

The Vendor Guidelines (“VG”) contain policy and procedural requirements for Vendors providing services or products (“Work”) to Microsoft.

Microsoft may modify the VG at any time, and modifications will be available to all active Microsoft vendors on the Microsoft.com intranet website (http://www.microsoft.com/mscorp/procurement/process/contracting.asp). Microsoft will use commercially reasonable efforts to notify Vendor within one business week of the posting of a modified VG at this web site (or any successor site). It is the responsibility of the Vendor to notify all appropriate parties within Vendor, and any Vendor subcontractors, of the changes made to the VG.

Questions: E-mail msvpinfo@microsoft.com

2. STATEMENT OF WORK (SOW).

Requirements: Microsoft shall have the sole discretion to select the manner in which Work will be documented. Microsoft may require that a SOW be signed by both Microsoft and Vendor. However, all SOW proposals from the Vendor should Include the Information listed below. In many cases the SOW is comprised of the content of the actual MS Market purchase order that is completed by your Microsoft customer via the MS Market tool. Each SOW — upon approval — shall be assigned a unique number by Microsoft (also referred to as a “MS Market order number.”)

It is the responsibility of the Microsoft Business Contact to ensure the finalized documents meet the current business requirements prior to execution. If there are any legal conditions and/or clauses in the SOW, the document must be reviewed and approved by Microsoft LCA prior to execution.

Vendor Proposals: To facilitate this process, all Vendor proposals for SOWs or changes to SOWs MUST include the following information (additional information may be required for category specific SOWs):

• Vendor’s contact information, including identification of the Vendor Account Manager

• Vendor’s Microsoft vendor number

• Microsoft Business Contact name and division

• The fill name of Vendor’s agreement and its Effective Date (i.e., “Master Work Agreement, Effective Date                     ”)

• Project objective — a detailed description of the expected results from the project. This should include specific improvements in key metrics or performance expectations if applicable.

• Deliverables — complete description of Work provided in association with the completion of the project objective (include quantities if applicable)

• Deliverable time line with key dates indicated

• Project reporting requirements — detailed description of reporting requirements for the project that describe progress against milestones, project cost to date and expected costs, on-going reporting requirements as needed, etc.

• Total Work Fees cost of Work by line-item

• Other charges such as tax, freight, shipping, and handling fees, if applicable, by line item

• Management fees for any Subcontractors associated with the project. Note that Microsoft will not pay any mark-up on third party expenditures. Management fees for coordinating these Subcontractors must be Itemized.

• SAP code (if provided by Microsoft)

3. VENDOR CODE OF CONDUCT.

Microsoft aspires to be more than just a good company — it aspires to be a great company. What will make Microsoft great is a strong commitment to our mission of enabling people and businesses throughout the world to realize their full potential. Achieving our mission isn’t just about building innovative technology. It’s also about who

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

24

we are as a company and as individuals, how we manage our business internally, and how we think about and work with customers, partners, governments, vendors, and communities.

The global business environment is continuously changing and demanding more from us as a company and as employees. Not only does the world expect us to deliver the best products and services, it also expects us to conduct ourselves ethically and responsibly. It is essential that we conduct ourselves at all times with integrity and in full compliance with the laws and regulations that govern our global business activities. Microsoft has established a set of company standards of business practices and regulatory compliance that are set out in the Standards of Business Conduct which applies to all Microsoft employees, directors, and officers. (www.microsoft.com/mscorp/legal/buscond). The Microsoft Standards of Business Conduct are an extension of Microsoft’s values and reflect our commitment to ethical business practices and regulatory compliance.

Microsoft expects that its vendors (“Vendors”) will share and embrace the letter and spirit of our commitment to integrity. We understand that Vendors are Independent entities; however, the business practices and actions of a vendor may impact and/or reflect upon Microsoft. Because of this, Microsoft expects all Vendors and their employees, agents, and subcontractors (Vendors’ employees, agents, and subcontractors shall hereinafter be referred to collectively as “Representatives”) to adhere to the Microsoft Vendor Code of Conduct while they are conducting business with and/or on behalf of Microsoft. All Microsoft Vendors should educate their Representatives to ensure they understand and comply with the Microsoft Vendor Code of Conduct.

Legal and Regulatory Compliance Practices

All Microsoft Vendors and their Representatives shall conduct their business activities in full compliance with the applicable laws and regulations of their respective countries while conducting business with and/or on behalf of Microsoft. In addition to any specific obligations under Vendor’s agreement with Microsoft, all Microsoft Vendors shall, without limitation:

• Comply with all applicable trade control and applicable laws as well as all export, re-export and import requirements.

• Conduct business in full compliance with antitrust and fair competition laws that govern the jurisdictions in which they conduct business.

• Comply with all applicable environmental laws and regulations regarding hazardous materials, air emissions, waste and wastewater discharges, including the manufacture, transportation, storage, disposal, and release to the environment of such materials.

• Be honest, direct, and truthful in discussions with regulatory agency representatives and government officials.

• Not participate in international boycotts that are not sanctioned by the U.S. government or applicable laws.

• Comply with the anticorruption laws of the countries in which they do business, including the United States Foreign Corrupt Practices Act, and not make any direct or indirect payments or promises of payments to foreign government officials for the purpose of inducing the individual to misuse his/her position to obtain or retain business.

Business Practices

Microsoft Vendors and their Representatives shall conduct their business interactions and activities with integrity and in accordance with their obligations under their specific agreements with Microsoft. In addition to any specific obligations under Vendor’s agreement with Microsoft, all Microsoft Vendors shall, without limitation:

• Honestly and accurately record and report all business information and comply with all applicable laws regarding their completion and accuracy.

• Create, retain, and dispose of business records in full compliance with all applicable legal and regulatory requirements.

• Protect and responsibly use both the physical and intellectual assets of Microsoft including property, supplies, consumables, and equipment when authorized by Microsoft to use such assets.

• Use Microsoft provided information technology and systems (including e-mail) only for authorized Microsoft business-related purposes. Microsoft strictly prohibits Vendors and their Representatives from using Microsoft provided technology and systems to create, access, store, print, solicit, or send any material that is intimidating, harassing, threatening, abusive, sexually explicit or otherwise offensive or inappropriate and/or send any false, derogatory, or malicious communications using Microsoft provided information assets and systems.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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• Comply with all Microsoft requirements for maintenance of passwords, confidentiality, security, and privacy procedures as a condition of receiving access to Microsoft’s internal corporate network, all systems and buildings. All data stored or transmitted on Microsoft owned or leased equipment is to be considered private and is the property of Microsoft. Microsoft may monitor all use of the corporate networks and all systems (including e-mail) and/or access all data stored or transmitted using the Microsoft network.

• Comply with the intellectual property ownership rights of Microsoft and others including but not limited to copyrights, patents, trademarks, and trade secrets. Use software, hardware and content only in accordance with their associated license or terms of use.

• Speak to the press on Microsoft’s behalf only if Vendor and/or Representative(s) is expressly authorized in writing to do so by Microsoft.

• Use good judgment, discretion, and moderation when offering gifts or entertainment to Microsoft employees. In doing so, the Vendor and/or its Representatives will refrain from giving Microsoft employees an individual gift or a combination of gifts with a value greater than $200.00 in a given year (or any lower amount in accordance with applicable laws) and never offer a bribe, kickback, bartering arrangement for goods or services, and/or any other incentive to a Microsoft employee in order to obtain or retain Microsoft business. Gift giving and entertainment practices may vary in different cultures and waivers to the $200.00 annual limit above may be possible upon petition to the Microsoft regional controller; however, any gifts and entertainment given or received must be in compliance with the law, must not violate the giver’s and/or receiver’s policies on the matter, and be consistent with local custom and practice.

• Avoid the appearance of or actual improprieties and/or conflicts of interests. Vendors and/or their Representatives shall not deal directly with any Microsoft employee whose spouse, domestic partner, or other family member or relative holds a significant financial interest in the Vendor. Dealing directly in the course of negotiating the Vendor agreement or performing the Vendor’s obligations with a spouse, domestic partner, or other family member or relative who is employed by Microsoft is also prohibited.

• Avoid insider trading by buying or selling Microsoft’s or another company’s stock when in possession of information about Microsoft or another company that is not available to the investing public and that could influence an Investor’s decision to buy or sell stock.

Employment Practices

Microsoft expects its Vendors to share its commitment to human rights and equal opportunity in the workplace. Microsoft Vendors shall conduct their employment practices in full compliance with all applicable laws and regulations. All Microsoft Vendors shall, without limitation:

• Cooperate with Microsoft’s commitment to a workforce free of harassment and unlawful discrimination. While we recognize and respect cultural differences, we believe that Vendor companies should not engage in discrimination in hiring, compensation, access to training, promotion, termination or retirement based on race, caste, national origin, religion, age, disability, gender, marital status, sexual orientation, union membership, or political affiliation.

• Provide a safe and healthy work environment and fully comply with all applicable safety and health laws, regulations and practices. Adequate steps shall be taken to minimize the causes of hazards inherent in the working environment.

• Prohibit the use, possession, distribution, and/or sale of illegal drugs while on Microsoft owned or leased property.

• Use only voluntary labor. The use of forced labor whether in the form of Indentured labor, bonded labor, or prison labor by a Microsoft Vendor and/or its subcontractors is prohibited.

• Workers should not be required to lodge “deposits” or their identity papers with their employer and are free to leave their employer after reasonable notice without penalty.

• Comply with all local minimum working age laws and requirements and not utilize child labor. Employees shall not be under the legal minimum working age of the respective region or shall not be less than 16 years of age (whichever is higher). We only support the development of legitimate workplace apprenticeship programs for the educational benefit of younger people and will not do business with those who abuse such systems.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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• Not engage in physical discipline or abuse. Physical abuse or discipline, the threat of physical abuse, sexual or other harassment and verbal abuse or other forms of intimidation is prohibited.

• Pay living wages under humane conditions. All workers shall be provided with clear, written information about their employment conditions with respect to wages before they enter employment and as needed throughout their term of employment. Deductions from wages as a disciplinary measure shall not be permitted nor shall any deductions from wages not provided for by national law be permitted without the express permission of the worker concerned. All disciplinary measures should be recorded. Wages and benefits paid for a standard working week meet, at a minimum, national legal standards.

• Not require workers to work more than the maximum hours of daily labor set by local laws; ensure that overtime is voluntary and paid in accordance with local laws and regulations.

• Keep employee records in accordance to local and/or national regulations.

Compliance with the Microsoft Vendor Code of Conduct

It is the responsibility of the Vendor to ensure that its Representatives understand and comply with the Microsoft Vendor Code of Conduct and to inform its Microsoft Business Contact (or a member of Microsoft management) if and when any situation develops that causes the Vendor to operate in violation of the code set forth in this document. Microsoft Vendors are expected to self-monitor their compliance with this Vendor Code of Conduct. In addition to any other rights Microsoft may have under its agreement with Vendor, Microsoft may request the immediate removal of any Vendor (or employee, agent or subcontractor thereof) who behaves in a manner that is unlawful or inconsistent with this Code or any Microsoft policy.

Reporting of Questionable Behavior and/or Possible Violations

If you wish to report a questionable behavior or possible violation of the Vendor Code of Conduct, Microsoft has a variety of resources available to assist you. You are encouraged to work with your primary Microsoft contact in resolving a business practice or compliance concern. However, Microsoft recognizes that there may be times when this is not possible or appropriate. In such instances, please contact any of the following:

1.	The Microsoft Business Conduct Line at (877) 320-MSFT (6738).
2.	If you are calling from outside the United States, you may make a collect call to the Business Conduct Line by accessing an International operator and asking to place a collect call to (704) 540-0139.
3.	If you are a Vendor with access to Microsoft’s intranet, you may send an e-mail to the Director of Compliance by e-mailing the Business Conduct and Compliance alias, buscond@microsoft.com.
4.	Send a letter to the Director of Compliance at Microsoft Corporation, Law and Corporate Affairs, One Microsoft Way, Redmond, WA 98052-6399 or send a confidential fax to (425) 705-2985.

Microsoft will not tolerate any retribution or retaliation taken against any Individual who has, in good faith, sought out advice or has reported questionable behavior and/or a possible violation.

4. MICROSOFT TRAVEL POLICY FOR VENDORS.

In general, Microsoft does not pay for travel expenses. If Microsoft agrees in a SOW to pay Vendor’s expenses while traveling on authorized Microsoft business, then Microsoft will reimburse Vendor for all reasonable and necessary expenses incurred in accordance with the terms of the SOW and the following policies.

Vendor Responsibility:

• To minimize travel expenses whenever possible by using the least expensive options that do not result in unreasonably ineffective use of work time or undue inconvenience to the traveler.

• To obtain Microsoft’s written approval before incurring travel expenses for which reimbursement will be sought.

• To accurately document all travel expenses.

Airline Tickets: Vendors should purchase non-refundable airline tickets, and purchase them a minimum of seven (7) days in advance of the travel departure date.

Frequent Flyer/Frequent Guest Programs: Vendors may retain such program awards and benefits. Participation in these programs must not influence flight or lodging selections in any manner that would result in increased costs to Microsoft.

Cancellations: Vendor shall not seek reimbursement for travel expenses that are cancelled by Vendor.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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When a trip is cancelled by Microsoft after the ticket/invoice has been issued, the traveler shall inquire about using the same ticket for future travel for Microsoft or obtain a refund to be applied to any request for reimbursement. Vendors are responsible for canceling hotel rooms and Microsoft will pay no expenses for hotel expenses which could have been avoided by prompt cancellation.

Excess Baggage: Microsoft will reimburse for excess baggage charges only:

• When Vendor travels with heavy or bulky materials or equipment necessary to perform Work;

• When the excess baggage consists of Microsoft property; or

• When Vendor travels on Microsoft business for more than fourteen (14) consecutive days.

VENDORS USING MICROSOFT TRAVEL PROGRAM

Vendors utilizing the Microsoft Travel Program are required to use program vendors whenever possible to take advantage of negotiated rates for air, hotel and car accommodations. Vendors must review and implement all procedures outlined in the Microsoft Travel Program — Vendors Procedures” document, available by emailing a request to tvlgpcal@microsoft.com.

Hotel Reservations: Hotel reservations MUST be made through one of the following methods:

• Travelport (US based travelers only)

• Designated travel agency

• Event Registration (when applicable)

Hotel Selection: Refer to Microsoft’s preferred hotel database http://msmarket (click on Travel then Hotel Program) or send email to tvIgpcal@microsoft.com. If a Microsoft hotel rate is not available, use an American Express rate or the least expensive property in a similar hotel category.

Car Rental Selection: See http://msmarket (click on Travel) or send email to tvlgpcal@microsoft.com.

Rail Travel: Rail travel should be used when it is less expensive than air travel, adds no more than one and a half hours to the total travel time, or is more timely than driving.

EXPENSE REIMBURSEMENT

Reimbursable Expenses: Reimbursable items include but are not limited to:

• Airfare and surface transportation (Economy/Coach Class) including parking and tolls

• Car rental (Compact/Midsize; full-size when three or more vendors travel together)

• Gratuities/tips (within reason)

• Hotel/lodging

• Meals incurred during out-of-town trip (not to exceed $75.00 USD per day or as specified In the SOW)

• Saturday night stay-over (Weekend hotel expenses are reimbursable if airfare savings result in a lower overall cost for the trip by at least $250.00 USD or equivalent currency and the expenses do not exceed the airfare savings.)

Non-Reimbursable Expenses: Non-reimbursable items include but are not limited to:

• Barber, hairstylist, manicurist, and other grooming/personal service expenses

• Entertainment (Including entertaining Microsoft employees and any event entertainment)

• Foreign travel document requirements

• Free or upgrade certificates for flight, hotel, or car rental

• Laundry and dry cleaning

• Membership fees (including frequent flyer/frequent guest programs)

• Any automobile fuel or rental insurance

• Telephone calls (not Microsoft business related)

• Trip or flight Insurance

Questions on Travel Policy Issues? Direct to tvlgpcal@microsoft.com

5. PRE-PLACEMENT POLICY.

Microsoft requires that all temporary personnel agencies, vendors, suppliers and independent contractors conduct pre-placement background checks on all their staff who will perform services in the United States that require any access to Microsoft owned or leased facilities or Microsoft resources such as email, network access, cardkey, or

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

28

other access badges.¹

Before Vendor assigns one of its staff to perform any such services under this Agreement, Vendor will conduct a pre-placement criminal record check based on a social security trace for federal and state felony convictions and state misdemeanor convictions covering the last seven (7) years (collectively “background check”). Microsoft further requires that Vendor perform pre-placement credit checks, when requested by Microsoft, for Vendor staff requiring access to cash handling, backend access to the corporate network, or Personally Identifiable Information (“PII”). The credit check must screen for serious unpaid and current delinquent debt, collections or judgments. Microsoft also reserves the right to request an updated background check or credit check from the Vendor on Vendor’s staff or Subcontractors on assignment at Microsoft.

Vendor will comply with the Fair Credit Reporting Act and any other applicable state and federal laws on background checks and credit checks. At a minimum, Vendor should use an established and reputable commercial background check company.

The Vendor is responsible for making the determination of whether any conviction disclosed in its staff’s background check or serious delinquency or debt disclosed in the credit check is reasonably related to the work Vendor staff will do for Microsoft. If the background check discloses a conviction or the credit check discloses information whose reasonable relationship to the work to be performed for Microsoft is unclear, Vendor will do the following: 1) Inform Microsoft of the conviction or serious unpaid and current delinquent debt, collection or judgment; 2) exclude the identity or any facts that would enable Microsoft to ascertain the identity of the Vendor staff whose conviction or credit information is in question; 3) discuss with Microsoft whether the Vendor staff is an unacceptable placement.

If Vendor uses any Subcontractors to perform services in the United States under this Master Agreement that require any access to Microsoft resources such as email, network access, cardkey, or other access badges, or that require a Subcontractor to access the credit card or social security information of Microsoft customer, Vendor will ensure its agreements with Subcontractors include the requirements set forth in this policy.

If Microsoft or Vendor becomes aware of criminal activity by Vendor’s staff or Subcontractor while Vendor’s staff or Subcontractor is assigned to work for Microsoft, and Vendor determines this information makes Vendor’s staff or Subcontractor an unacceptable placement, Vendor will take complete responsibility for immediately removing said individual from the Microsoft assignment and from Microsoft property. Vendor shall comply with all applicable laws when removing any Vendor staff or Subcontractor from Microsoft premises. If the criminal activity would suggest a threat of physical harm to Microsoft property or employees, the parties must inform their respective business contact immediately, but in no event later than 24 hours after becoming aware of the information. Otherwise, Microsoft or Vendor must inform their respective business contact of the criminal activity within 48 hours of becoming aware of the information.

Vendor agrees to indemnify Microsoft from any liability Microsoft may sustain as a result of Vendor’s failure to adhere to Microsoft’s background and credit check requirement, including that requirement’s application to Vendor’s Subcontractors, or Vendor’s failure to comply with all applicable laws in conducting a background or credit check on Vendor’s staff or Subcontractors who will perform services In the United States that require any access to Microsoft owned or leased facilities or Microsoft resources such as email, network access, cardkey, or other access badges.

6. USE OF MICROSOFT FACILITIES AND/OR EQUIPMENT.

Vendor will not use Microsoft facilities or equipment to perform services for any person or entity other than Microsoft without the prior written consent of Microsoft.

At Vendor’s cost, Vendor shall comply with all Microsoft physical and information security rules and requirements as modified from time to time. Microsoft may at its option require Vendor and/or Vendor’s employees or Subcontractors to sign separate agreements regarding access to Microsoft facilities or equipment.

7. MICROSOFT TRADEMARKS.

Microsoft grants Vendor a non-exclusive, non-transferable, royalty-free, personal license to use Microsoft

¹ The Vendor and Microsoft acknowledge that issues regarding pre-placement background checks and credit checks on Company’s staff who will perform services outside of the United States will be addressed in the context of the specific Local Agreement under this Master Agreement.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

29

trademarks and logos specified In a SOW (“Microsoft Marks”) only during the term of the SOW, only according to the trademark brand use specifications below and all current brand usage guidelines made available from Microsoft, and solely in relation to Work described in the SOW. All rights not expressly granted are reserved by Microsoft. Vendor acknowledges Microsoft’s sole ownership of Microsoft Marks and all associated goodwill, and that Microsoft retains all right, title, and interest in and to the Microsoft Marks. All goodwill arising from use of Microsoft Marks by Vendor will inure to the sole benefit of Microsoft. Vendor will not use Microsoft Marks in any manner that will diminish or otherwise damage Microsoft’s goodwill in the Microsoft Marks.

Vendor will not adopt, use, or register any corporate name, trade name, trademark, domain name, service mark, certification mark, or other designation that violates Microsoft’s rights in Microsoft Marks. Microsoft shall have the sole right to, and in its sole discretion may control any action concerning Microsoft Marks. Vendor agrees to maintain the quality of all deliverables containing Microsoft Marks at a level that meets or exceeds standards of quality and performance generally accepted in the industry, and that is at least commensurate with the quality of similar deliverables approved by Microsoft. Vendor agrees to fully correct and remedy any deficiencies in its use of Microsoft Marks, or the quality of the deliverables offered in connection with Microsoft Marks, within a reasonable time upon receipt of notice from Microsoft. Microsoft reserves the right in its sole discretion to terminate or modify this license for use of Microsoft Marks at any time. Vendor shall immediately cease all use of Microsoft Marks upon expiration or termination of the Agreement or the specific SOW.

Trademark Brand Use Specifications:

1.	Microsoft Marks may be used solely on deliverables specifically requested by Microsoft in a SOW. No Microsoft Marks may be used on, or in relation to, any product or service not requested by Microsoft in a SOW.
2.	Microsoft Marks may not be used in any manner that expresses or implies Microsoft’s affiliation, sponsorship, endorsement, certification, or approval of Vendor.
3.	Vendor shall not use Microsoft Marks in association with any third party trademarks in a manner that suggests co-branding or otherwise creates potential confusion as to ownership of Microsoft Marks.
4.	Microsoft Marks may not be included in any non-Microsoft trade name, business name, domain name, product or service name, logo, trade dress, design, slogan, or other trademark.
5.	Microsoft Marks may only be used as provided by Microsoft. Except for size, or as otherwise specified in the brand guidelines on the extranet, Microsoft Marks may not be altered in any manner, including proportions, colors, elements, etc., or animated, morphed, or otherwise distorted in perspective or dimensional appearance.
6.	Microsoft Marks may not be combined with any other object, including, but not limited to, other logos, words, graphics, photos, slogans, numbers, design features, or symbols.
7.	Microsoft Marks must stand alone. A minimum amount of empty space must surround the Microsoft Marks separating it from any other object, such as type, photography, borders, edges, and so on. Unless otherwise specified on the brandtools extranet, the required area of empty space around the Microsoft Marks must be X, where X equals 1/2 the height of a Microsoft Mark as used on a deliverable.
8.	Microsoft Marks shall include the appropriate ™ and/or ® symbol(s) as provided by Microsoft.

Further brand use specifications are provided at https://brandtools.partners.extranet.microsoft.com/

8. SUBCONTRACTOR REQUIREMENTS

In the event Vendor is unable to comply with the percentage purchase requirements in the Agreement after using best efforts, Vendor shall have the right to include in the calculation of the amount paid by Vendor to Subcontractors those amounts paid by Vendor to Minority Owned and Operated Businesses and to Women Owned and Operated Businesses in the conducting of it’s overall business (not just those related to Microsoft specific subcontracting). By the tenth (10th) business day following November 30 and May 31, Vendor shall report their subcontracted spend for the previous six month period via the template provided by Microsoft. The template can be obtained by emailing mwdbe@microsoft.com. The provisions of this section shall not apply if Vendor’s annual receipts are less than Eighteen Million U.S. Dollars (18,000,000 USD) and the Vendor qualifies as a small business as defined under the Small Business Administration’s Table of Size Standards dated October 1, 2002. However, Vendor must submit an exemption request via the template for each reporting period. If Microsoft does not approve the exemption request, Microsoft shall notify the vendor via e-mail that the Vendor must report their subcontracted spend.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

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EXHIBIT B

TO:	THE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT
BETWEEN:	MICROSOFT CORPORATION AND DIGITAL RIVER, INC.
DATED:	September 1, 2006
NAME	Non-Disclosure Agreement

MICROSOFT CORPORATION NON-DISCLOSURE AGREEMENT
(STANDARD RECIPROCAL)

This Non-Disclosure Agreement (the “Agreement”) is made and entered into as of the later of the two signature dates below by and between MICROSOFT CORPORATION, a Washington corporation (“Microsoft”), and Digital River, Inc., a Delaware corporation (“Company”).

IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS CONTAINED IN THIS AGREEMENT AND THE MUTUAL DISCLOSURE OF CONFIDENTIAL INFORMATION, THE PARTIES HERETO AGREE AS FOLLOWS:

1. Definition of Confidential Information and Exclusions.

          (a) “Confidential Information” means nonpublic information that a party to this Agreement (“Disclosing Party”) designates as being confidential to the party that receives such information (“Receiving Party”) or which, under the circumstances surrounding disclosure ought to be treated as confidential by the Receiving Party. “Confidential Information” includes, without limitation, information in tangible or intangible form relating to and/or including released or unreleased Disclosing Party software or hardware products, the marketing or promotion of any Disclosing Party product, Disclosing Party’s business policies or practices, and information received from others that Disclosing Party is obligated to treat as confidential. Except as otherwise indicated in this Agreement, the term Disclosing Party” also includes all Affiliates of the Disclosing Party and, except as otherwise indicated, the term “Receiving Party” also includes all Affiliates of the Receiving Party. And “Affiliate” means any person, partnership, joint venture, corporation or other form of enterprise, domestic or foreign, including but not limited to subsidiaries, that directly or indirectly, control, are controlled by, or are under common control with a party.

          (b) Confidential Information shall not include any information, however designated, that: (1) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed Disclosing Party; (ii) became known to Receiving Party prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to the terms of this Agreement; (iii) became known to Receiving Party from a source other than Disclosing Party other than by the breach of an obligation of confidentiality owed to Disclosing Party; (iv) is independently developed by Receiving Party.

2. Obligations Regarding Confidential Information

          (a) Receiving Party shall:

(i)	Refrain from disclosing any Confidential Information of the Disclosing Party to third parties for five (5) years following the date that Disclosing Party first discloses such Confidential Information to Receiving Party, except as expressly provided in Sections 2(b) and 2(c) of this Agreement,
(ii)	Take reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, but no less than reasonable care, to keep confidential the Confidential Information of the Disclosing Party;
(iii)	Refrain from disclosing, reproducing, summarizing and/or distributing Confidential Information of the Disclosing Party except in pursuance of Receiving Party’s business relationship with Disclosing Party, and only as otherwise provided hereunder; and
(iv)	Refrain from reverse engineering, decompiling or disassembling any software code and/or pre- release hardware devices disclosed by Disclosing Party to Receiving Party under the terms of this Agreement, except as expressly permitted by applicable law.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

31

          (b) Receiving Party may disclose Confidential Information of Disclosing Party in accordance with a judicial or other governmental order, provided that Receiving Party either (i) gives the undersigned Disclosing Party reasonable notice prior to such disclosure to allow Disclosing Party a reasonable opportunity to seek a protective order or equivalent, or (ii) obtains written assurance from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection afforded under applicable law or regulation. Notwithstanding the foregoing, the Receiving Party shall not disclose any computer source code that contains Confidential Information of the Disclosing Party in accordance with a judicial or other governmental order unless it complies with the requirement set forth in sub-section (1) of this Section 2(b).

          (c) The undersigned Receiving Party may disclose Confidential Information only to Receiving Party’s employees and consultants on a need-to-know basis. The undersigned Receiving Party will have executed or shall execute appropriate written agreements with third parties sufficient to enable Receiving Party to enforce all the provisions of this Agreement

          (d) Receiving Party shall notify the undersigned Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Agreement by Receiving Party and its employees and consultants, and will cooperate with Disclosing Party in every reasonable way to help Disclosing Party regain possession of the Confidential Information and prevent its further unauthorized use or disclosure.

          (e) Receiving Party shall, at Disclosing Party’s request, return all originals, copies, reproductions and summaries of Confidential Information and all other tangible materials and devices provided to the Receiving Party as Confidential Information, or at Disclosing Party’s option, certify destruction of the same.

3. Remedies

     The parties acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that Disclosing Party shall be entitled, without waiving any other tights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction.

4. Miscellaneous

     (a) All Confidential Information is and shall remain the property of Disclosing Party. By disclosing Confidential Information to Receiving Party, Disclosing Party does not grant any express or implied right to Receiving Party to or under any patents, copyrights, trademarks, or trade secret information except as otherwise provided herein. Disclosing Party reserves without prejudice the ability to protect its rights under any such patents, copyrights, trademarks, or trade secrets except as otherwise provided herein.

     (b) In the event that the Disclosing Party provides any computer software and/or hardware to the Receiving Party as Confidential Information under the terms of this Agreement, such computer software and/or hardware may only be used by the Receiving Party for evaluation and providing Feedback (as defined in Section 5 of this Agreement) to the Disclosing Party. Unless otherwise agreed by the Disclosing Party and the Receiving Party, all such computer software and/or hardware is provided “AS IS” without warranty of any kind, and Receiving Party agrees that neither Disclosing Party nor its suppliers shall be liable for any damages whatsoever arising from or relating to Receiving Party’s use or inability to use such software and/or hardware.

     (c) The parties agree to comply with all applicable international and national laws that apply to (i) any Confidential Information, or (ii) any product (or any part thereof), process or service that is the direct product of the Confidential Information, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. For additional information on exporting Microsoft products, see http://www.microsoft.com/exporting/.

     (d) The terms of confidentiality under this Agreement shall not be construed to limit either the Disclosing Party or the Receiving Party’s right to independently develop or acquire products without use of the other party’s Confidential Information.

     (e) This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed by both parties. None of the provisions of this Agreement shall be deemed to have been waived by any act or acquiescence on the part of Disclosing Party, the Receiving Party, their agents, or employees, but only by an instrument

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

32

in writing signed by an authorized employee of Disclosing Party and the Receiving Party. No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion.

     (f) If either Disclosing Party or the Receiving Party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs. This Agreement shall be construed and controlled by the laws of the State of Washington, and the parties further consent to exclusive jurisdiction and venue in the federal courts sitting in King County, Washington, unless no federal subject matter jurisdiction exists, in which case the parties consent to the exclusive jurisdiction and venue in the Superior Court of King County, Washington. Company waives all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule.

     (g) This Agreement shall be binding upon and inure to the benefit of each party’s respective successors and lawful assigns; provided, however, that neither party may assign this Agreement (whether by operation of law, sale of securities or assets, merger or otherwise), in whole or in part, without the prior written approval of the other party. Any attempted assignment in violation of this Section shall be void.

     (h) If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.

     (i) Either party may terminate this Agreement with or without cause upon ninety (90) days prior written notice to the other party. All sections of this Agreement relating to the rights and obligations of the parties concerning Confidential Information disclosed during the term of the Agreement shall survive any such termination.

          IN WITENSS WHEREOF, the parties hereto have executed this Agreement.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

33

EXHIBIT C

TO:	THE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT
BETWEEN:	MICROSOFT CORPORATION AND DIGITAL RIVER, INC.
DATED:	September 1, 2006
NAME	Microsoft Supply Chain Security Policies and Requirements (Version 4)

[*]

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

34

EXHIBIT D

TO:	THE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT
BETWEEN:	MICROSOFT CORPORATION AND DIGITAL RIVER, INC.
DATED:	September 1, 2006

TEMPLATE — AFFILIATE AGREEMENT

For good and valuable consideration, [NAME OF AFFILIATE], a [TYPE OF AFFILIATE] organized under the laws of [NAME OF COUNTRY] (“Affiliate”) covenants and agrees with Microsoft Corporation (“Microsoft”), that Affiliate will comply with all obligations of Digital River, Inc., a company organized under the laws of Delaware (“Company”) pursuant to that certain Microsoft Operations Digital Distribution Agreement between Microsoft and Company dated September 1, 2006 (the “Agreement”). Microsoft grants Affiliate all necessary rights, licenses and other contractual powers granted to Company under the Agreement in order to perform the necessary and delegated Services under the Agreement and specified below. Affiliated shall only perform the following Services:

     1.                                         

     2.                                         

     3.                                         

Affiliate acknowledges that its agreement herein is a condition for Affiliate to exercise any of the rights sub-licensed by Microsoft to Affiliate pursuant to the terms of the Agreement.

Capitalized terms used herein and not otherwise defined shall have the same meaning as in the Agreement.

IN WITNESS WHEREOF, Affiliate and Company have executed this agreement as of the date set forth below. All signed copies of this Agreement shall be deemed originals.

MICROSOFT CORPORATION	[AFFILIATE]
Signature:	Signature:
Print Name:	Print Name:
Title:	Title:
Date:	Date:
	DIGITAL RIVER, INC.
	Signature:
	Print Name:
	Title:
	Date:

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

35

EXHIBIT E

TO:	THE MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT
BETWEEN:	MICROSOFT CORPORATION AND DIGITAL RIVER, INC.
DATED:	September 1, 2006
NAME	Microsoft Release Services Manager Site License Agreement

MICROSOFT
RELEASE SERVICES MANAGER
SITE LICENSE AGREEMENT

     This Microsoft Release Services Manager Site License Agreement (“Agreement”) is made and entered into as of the later of the signature dates below (“Effective Date”), by and between DIGITAL RIVER, INC. (“COMPANY”), a Minnesota corporation, and MICROSOFT CORPORATION (“MICROSOFT”), a Washington corporation.

In consideration of the covenants and conditions hereinafter set forth, MICROSOFT and COMPANY agree as follows:

1. License. MICROSOFT hereby grants to COMPANY, and its majority-owned subsidiaries, a limited, personal, non-exclusive, non-transferable, revocable license to reproduce and use the MICROSOFT software known as Release Services Manager (the “Licensed Software”), in object code form only, including any documentation, corrections, enhancements, updates and/or upgrades thereto (collectively the “Modifications”) provided to COMPANY by MICROSOFT, at MICROSOFT’s sole and absolute discretion, for internal purposes only at COMPANY’s offices identified on the attached Exhibit A (the “Location”), subject to the terms and conditions set forth herein. Nothing in this Agreement shall be construed as obligating MICROSOFT to deliver any Modifications to COMPANY. MICROSOFT reserves all other rights in the Licensed Software not expressly granted to COMPANY in this Section 1. For purposes of this Agreement the term “Licensed Software” includes all Modifications.

2. License Restrictions.

          (a) COMPANY shall only use the Licensed Software to access and download MICROSOFT product software and any files required to build MICROSOFT products that COMPANY is authorized to reproduce, manufacture and/or distribute under a separate agreement with MICROSOFT at the Location. This Agreement does not grant COMPANY any rights in or to any such downloaded MICROSOFT product software; specifically and without limitation, this Agreement does not grant COMPANY any rights to use or reproduce such software.

          (b) COMPANY shall not (i) in any way modify the Licensed Software without obtaining, in advance, the express written permission of MICROSOFT, or (ii) reproduce the Licensed Software except pursuant to the terms of this Agreement.

          (c) All title and copyrights in and to the Licensed Software as well as the MICROSOFT product software are owned by MICROSOFT or its suppliers.

          (d) COMPANY shall not transfer, assign, license, rent or lease any copy of the Licensed Software or any MICROSOFT product software. COMPANY may not export or re-export, directly or indirectly, the Licensed Software into any country if such a transfer is prohibited by the United States Export Administration Act and implementing regulations and MICROSOFT has not consented to such export or re-export in writing.

          (e) COMPANY shall not reverse engineer, decompile, or disassemble the Licensed Software except and only to the extent that such activity may be expressly permitted by applicable law notwithstanding this limitation.

          (f) COMPANY shall only distribute the Licensed Software within the COMPANY on a per employee basis. Each employee must be registered for an individual access account.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

36

          (g) COMPANY shall ensure that each employee shares neither their individual Licensed Software account nor password with any other COMPANY employee.

          (h) Should any COMPANY employee who is a registered end user of the Licensed Software either terminate or be terminated from their employment with COMPANY or no longer holds a COMPANY position requiring such employee’s access to the Licensed Software, COMPANY shall within forty-eight (48) hours of such termination notify its MICROSOFT Vendor Account Manager of the relinquishment of License Software use, copying the same information to MICROSOFT’s PIRSHELP alias.

          (i) COMPANY agrees it has full responsibility for confirming that the MICROSOFT product software downloaded is a true and complete copy of the MICROSOFT product software COMPANY is authorized to reproduce, manufacture, and/or distribute under separate agreement with MICROSOFT.

          (j) COMPANY shall not alter, remove, or obscure any copyright notices in the Licensed Software and shall include in any copies of the Licensed Software the same notices as are contained in the copies delivered by MICROSOFT hereunder for the Licensed Software or as instructed by MICROSOFT.

3. Warranty Disclaimer. MICROSOFT PROVIDES THE LICENSED SOFTWARE TO COMPANY AS IS, WITHOUT WARRANTY OF ANY KIND AND HEREBY DISCLAIMS ALL EXPRESSED OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

4. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL MICROSOFT BE LIABLE TO COMPANY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5. Termination. COMPANY acknowledges that MICROSOFT may terminate its obligation of this Agreement at any time and therefore agrees that MICROSOFT may, at its option and upon written notice to COMPANY, terminate this Agreement for any reason at any time without any further obligation to COMPANY. Sections 3, 6, 7, 8 and 10 shall survive any expiration or termination of this Agreement.

6. Indemnity.

          (a) COMPANY agrees to indemnify, defend, and hold MICROSOFT and its subsidiaries, successors, officers, directors and employees harmless from any and all actions, causes, demands, costs, liabilities, expenses and damages arising out of or in connection with any claim which, if true, would constitute a breach of its obligations, representations or warranties herein.

          (b) If any action, dispute, claim or demand shall be brought by any third party against MICROSOFT for which MICROSOFT may seek indemnification from the COMPANY pursuant to this Section, MICROSOFT shall promptly notify the COMPANY in writing, specifying the nature of the action and the total monetary amount sought or other such relief as is sought therein. Upon sending such notice to the COMPANY, MICROSOFT shall defend, contest, negotiate or settle any such claim or demand through counsel of its own selection, satisfactory to the COMPANY. MICROSOFT shall not settle any action, dispute, claim or demand without notifying COMPANY and giving the COMPANY the right to comment on the terms of the settlement.

7. Confidentiality. The COMPANY agrees that at all times during the term of this Agreement, and for five (5) years thereafter, it will hold in strictest confidence, and will not disclose to any third party, any confidential information of MICROSOFT, without MICROSOFT’s prior written consent. However, COMPANY may disclose confidential information in accordance with judicial or other governmental order, provided COMPANY shall give Microsoft reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent. The term “confidential information” shall mean all non-public information that MICROSOFT designates as being confidential, or which, under the circumstances of disclosure ought to be treated as confidential. Confidential information includes, without limitation, the terms and conditions of this Agreement,

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

37

information relating to released or unreleased software or hardware products, marketing or promotion of any product, business policies or practices, customers or suppliers, or information received from others that MICROSOFT is obligated to treat as confidential. If the COMPANY has any questions as to what comprises confidential information, it agrees to consult with MICROSOFT. “Confidential information” shall not include information that was known to the public or other party prior to disclosure, or information that becomes publicly available through no fault of the COMPANY.

8. Reporting. COMPANY agrees to keep accurate records identifying the number of copies of the Licensed Software in use at each Location and the hardware upon which the Licensed Software has been loaded. COMPANY shall maintain such reports for a period of two (2) years from the date the Licensed Software was delivered or termination of this Agreement which ever is later. At MICROSOFT’s request and with not less than one (1) hour prior notice to COMPANY, MICROSOFT or its representatives may inspect the Location to confirm that COMPANY is in compliance with the terms of this Agreement. All such inspections will be conducted at MICROSOFT’s expense and during the COMPANY’s regular business hours. COMPANY shall cooperate with MICROSOFT in all respects so that MICROSOFT may complete its inspection.

9. Notices and Requests. All notices and requests in connection with this Agreement shall be deemed given as of the day they are received either by messenger, delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested, and addressed as follows:

MICROSOFT:	MICROSOFT CORPORATION
	One Microsoft Way
	Redmond, WA 98052-6399
E-mail Attention:	PlRSHELP@microsoft.com
Telephone:	(425) 882-8080 — Please ask for the PIRS Technical Support Team
Facsimile:	(425) 936-7329
with a cc to:	MICROSOFT CORPORATION
	One Microsoft Way
	Redmond, WA 98052-6399
Attention:	Law & Corporate Affairs
COMPANY:	Digital River, Inc.
	7625 West 76th Street
	Eden Prairie, Minnesota 55344
	Beechwood House,
	10 Windsor Road, Slough, England SL1 2EJ
Attention:	Chief Financial Officer
Telephone:	952-253-1234
Facsimile:	952-253-8497

     or to such other address as the party to receive the notice or request so designates by written notice to the other.

10. Miscellaneous

          (a) The parties are each independent contractors, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, franchise, or a joint venture between the parties.

          (b) This Agreement shall be governed by the laws of the State of Washington and COMPANY consents to jurisdiction and venue in the state and federal courts sitting in the State of Washington. In any action

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

38

or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including reasonable attorneys’ fees.

          (c) This Agreement does not constitute an offer by MICROSOFT and it shall not be effective until signed by both parties. This Agreement constitutes the entire agreement between the parties with respect to the Licensed Software and all other subject matter hereof and merges all prior and contemporaneous communications. It shall not be modified except by a written agreement dated subsequent to the date of this Agreement and signed on behalf of COMPANY and MICROSOFT by their respective duly authorized representatives.

          (d) This Agreement may be assigned by MICROSOFT but shall not be assigned by COMPANY without MICROSOFT’s prior written approval. Except as otherwise provided, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.

          Each of the Parties intending to be legally bound hereby agrees to the above terms as of the Effective Date.

MICROSOFT CORPORATION	DIGITAL RIVER, INC.
By (Sign)	By (Sign)
Name (Print)	Name (Print)
MICROSOFT Vendor Account Manager
Title	Title
Date	Date

EXHIBIT A

COMPANY may install and use the Licensed Software at the following locations all of which shall be under COMPANY’s absolute control:

9625 West 76^th Street, Eden Prairie, MN 55344 USA.

Beechwood House, 10 Windsor Road, Slough, England SL1 2EJ

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

39

EX-10.26

Exhibit 10.26

DIRECT RESELLER ADDENDUM
TO THE MICROSOFT DIGITAL DISTRIBUTION AGREEMENT

Certain confidential information contained in this document, marked by asterisks, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.

ADDENDUM SUMMARY AND SIGNATURE PAGE

This Direct Reseller Addendum (“Addendum”) to the Microsoft Digital Distribution Agreement is entered into between:

Microsoft Corporation

     A corporation organized under the laws of the State of Washington, U.S.A. (“Microsoft”)

AND

Digital River, Inc.

     A company organized under the laws of the State of Delaware, U.S.A. (“Company”)

Addendum Effective and Expiration Dates:	This Addendum commences on September 1, 2006 (the “Addendum Effective Date”) and, unless terminated earlier, expires on August 31, 2009 (the “Addendum Expiration Date”).
Purpose and Scope:	This Addendum supplements and, to the extent applicable amends, the Microsoft Operations Digital Distribution Agreement between Microsoft and Company, (“Agreement”) signed as of September 1, 2006 respect to all statements of work expressly referencing the Agreement and the Addendum. This Addendum supersedes and replaces the previous Direct Reseller Addendum that was signed concurrently with the Agreement.
	The Addendum establishes the terms and conditions under which Microsoft grants Company a non-exclusive license to resell and distribute certain Microsoft Products to End-Users. It establishes the legal structure for the parties to create a business relationship under which Company will resell and distribute, as a seller of record, certain Microsoft Products to end-users.
	This Addendum applies only to statements of work expressly referencing the Agreement and the Addendum. In the event of a conflict between the Agreement and this Addendum, this Addendum controls with respect to statements of work expressly referencing this Addendum.

This Addendum consists of the following:

• This Addendum Summary and Signature Page

• The Addendum Contact and Notices Information Page

• The Addendum Terms and Conditions

• Any statements of work (“SOW”) entered into under the Agreement and expressly referencing this Addendum, including the following statements of work:

• Statement of Work: Office 2007 Digital Distribution (Expiration Date: September 1, 2006)

Microsoft and Company enter into this Addendum by signing below.

MICROSOFT CORPORATION	DIGITAL RIVER, INC.
Signature:	Signature:
Print Name:	Print Name:
Title:	Title:
Date:	Date:

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

1

DIRECT RESELLER ADDENDUM
TO THE MICROSOFT DIGITAL DISTRIBUTION AGREEMENT

ADDENDUM CONTACT AND NOTICES INFORMATION PAGE

Address for Notices. In addition to the notices required under the Agreement, the parties must send any other communication required by this Addendum to the applicable business contact indicated in the Business Contact Information table below, in accordance with the Contact and Notices Information Page of the Agreement.

Business Contact Information

Microsoft	Company
Contact/Title: Kerry Dean	Contact/Title: Tom Venable
Address: One Microsoft Way	Address: 9625 West 76th Street
Redmond, WA, U.S.A. 98052-6399	Eden Prairie, Minnesota 55344
Phone Number: 425-707-4116	Phone Number: 952-253-1234 #8818
Fax Number: 425-936-7329	Email Address: tvenable@digitalriver.com
Email Address: Kerryd@microsoft.com
Responsible for: Office 2007	Responsible for: Office 2007

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

2

ADDENDUM TERMS AND CONDITIONS

     1. Additional Definitions. Capitalized terms used in and not otherwise defined in this Addendum shall have the meaning given to them in the Agreement. The terms below shall have the following meanings:

          (a) “End-User” means the user and ultimate consumer of a Product or, in the event of an Upgrade, the validly licensed user of a Product and the ultimate consumer of an Upgrade.

          (b) “Price List” means the price list provided to Company by Microsoft from time to time during the term of this Addendum and any applicable SOW for applicable Products and Upgrades. [*]

          (c) “Purchase” or “sale,” as used herein, includes the authorized transfer of a Microsoft license in the ordinary course of Product distribution. Use of such terminology shall not be deemed to waive, impair or otherwise affect the Intellectual Property rights of Microsoft.

          (d) “Upgrade” means the upgraded Product set forth on the Price List that an End-User obtains through installation of certain encrypted upgrade software code in object code format provided by Microsoft and/or the purchase and application of license keys and key controls.

          (e) “Website” means Company’s digital distribution program website(s) through which End Users may purchase copies of Products or Upgrades.

     2. License Grant and Restrictions.

          (a) License Grant. For the duration of this Addendum, Microsoft grants to Company a non-exclusive, limited, non-transferable, non-assignable license to resell copies of those Products and Upgrades identified in the applicable SOW and to perform order transactions, digital downloads and fulfillment functionalities in the manner described in the Agreement, this Addendum and the applicable SOW.

          (b) Restrictions on the License and the Scope of E-Commerce Activities.

               (i) Company shall perform the E-Commerce Activities and apply its license rights under this Addendum only through websites identified in each applicable SOW (“Approved Websites”), and shall not move, delete or consolidate Approved Websites in a manner that has any material, adverse impact on the sales of Microsoft Products or Upgrades without Microsoft’s written permission.

               (ii) Company shall sell and distribute to End-Users physically located in the geographical territories designated in an applicable SOW.

     3. Development and Maintenance of Approved Websites. Company shall develop and maintain the Approved Websites in accordance with the website guidelines and requirements detailed in the applicable SOW. Microsoft must approve the content, branding, functionalities and form of Approved Websites, such approval not to be unreasonably withheld or delayed. Company shall ensure that the Approved Websites remain in compliance with all applicable laws and shall provide all notices to End-Users as required by Microsoft from time to time. For the purposes of ensuring that the Approved Websites remain in compliance with all applicable laws and regulations, Company may alter or change the approved site upon notice to Microsoft. The parties may agree on marketing materials and/or advertising materials related to the Products and Upgrades and other related programs for inclusion on the Approved Websites. Company shall remove Products and Upgrades (including any related materials and advertising) from an Approved Website immediately upon the receipt of a written notice from Microsoft, if for any reason Microsoft decides to discontinue such Product or Upgrade, or the use of the Company or Approved Website to resell such Products or Upgrades. If a Product or Upgrade sold through the Approved Website is discontinued because of (i) a change in applicable law or (ii) order of any court and/or legal action by a third party, Company shall remove the Product or Upgrade (including any related materials and advertising) as soon as possible but in any event no later than five (5) calendar days after receipt of notice from Microsoft.

     4. No Modifications of Products or Materials. For the duration of the Agreement and this Addendum, Company shall not decompile, disassemble or reverse engineer any Materials, Products or Upgrades (except and only to the extent

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

3

applicable law expressly permits, despite this limitation). Additionally, Company shall not modify, alter, tamper with or reduce the content of any Materials, Products, Upgrades or accompanying documentation in any way.

     5. End-User License Agreement. Company shall provide End-Users Microsoft End-User License Agreement for the Products or Upgrades (in the form specified by Microsoft in writing and updated by Microsoft from time to time at its sole discretion) to be provided with the applicable Products or Upgrades which govern the End-User’s use and license of the Products or Upgrades. Company shall not enter into any agreement with an End-User that contains terms that conflict with, vary or modify the terms and conditions of the End-User License Agreement.

     6. Additional Privacy and Personal Information Requirements.

          (a) Collection and Use of Personal Information. Company shall comply with Section 7 of the Agreement with respect to the collection and use of all Personal Information collected by Company through the Approved Websites. [*]

          (b) Privacy Notices. All Approved Websites must contain clear and conspicuous privacy notices relating to the collection and use of Personal Information and must, unless otherwise specified in an applicable SOW, comply, at a minimum, with all relevant guidelines contained at http://members.microsoft.com/vendorguide or otherwise provided by Microsoft (as specified in Section 7 of the Agreement). The privacy notices shall clearly specify that all Personal Information collected through the Approved Websites and related to the Agreement, this Addendum and any applicable SOW will be shared with Microsoft except as set forth in the following section.

          (c) Personal Information and Data Ownership Rights and Disclosure. [*] However, Company, as the seller and merchant of record, shall solely own any payment information provided by Customers, including credit card information. Company shall provide Microsoft, to the extent necessary, access by Microsoft agents, Microsoft vendors, or other Microsoft-designated party to such payment information in order to enable Microsoft or its vendors or agents to provide additional support and service to Customers. [*] Microsoft acknowledges that it will handle such Personal Information in compliance with any applicable laws. Except as expressly amended in this Section, Company’s obligations under the Agreement with respect to Personal Information shall remain unaffected.

          (d) Solicitation of Personal Information. Company may post language on the checkout page of the Approved Websites, providing each End-User with an opportunity to elect to receive solicitations from Microsoft or from Company only if Company’s solicitation is on Microsoft’s behalf.

     7. Warranties to End-Users. Microsoft warrants the Products and Upgrades to End-Users pursuant to the written limited warranty document or End-Users License Agreement Terms accompanying the Products or Upgrades. Microsoft shall provide all End-Users technical support related to the use of the Products or Upgrades.

     8. Customer Service for End-Users. Company will provide customer service to End-Users relating to the Products or Upgrades purchase process and delivery transaction as set forth in the applicable SOW.

     9. End-User Recovery Process. Company will (1) accept recovery requests from End-Users via the Approved Websites, (2) collect the required recovery information and (3) process the recovery of the Products or Upgrades or any digital component associated with them as specified in the applicable SOW.

     10. Electronic Proof of Purchase. Company will provide an End-User with an electronic proof-of-purchase confirmation for each completed purchase transaction on an Approved Website.

     11. Physical and Digital Fulfillment. When requested to do so in an applicable SOW, Company shall provide End-Users with the necessary physical media and component provided for in the applicable SOW. Additionally, Company shall provide End-Users electronically digital components (e.g., digital license keys, control numbers, etc.) associated with the Products in accordance with the requirements set forth in the applicable SOW.

     12. Inventory Management. Except as expressly stated in this Section 12, the management and ownership right of Inventory obtained, created or developed under this Addendum and an applicable SOW, while in the Company’s possession and under its control, shall be governed by the Inventory Management and Terms and Conditions set forth in the Agreement. Notwithstanding any terms to the contrary in the Inventory Management Terms and Conditions, rights, title

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

4

and interest in each copy of the Products or Upgrades sold to End-Users transfer to Company immediately upon Company’s processing of the final payment by End-User and before the applicable copy or Upgrade and any related components and media is delivered to the End-User. As between Company and the End-User, and with respect to physical media and components shipped to End-Users located outside of the United States from locations within the United States, title shall transfer from Company to End-User upon delivery to the End-User. With respect to physical media and components shipped to End-Users located within the United States, title shall transfer from Company to End-Users upon delivery to the logistics carrier.

     13. Pricing to End-Users. For copies of the Products and Upgrades sold, licensed and delivered pursuant to this Addendum and the applicable SOW, Company is the reseller of such copies or Upgrades and, therefore, Company shall determine the price for selling each copy of the Products or Upgrades to End Users in its sole discretion. Estimated Retail Prices provided in an applicable SOW are for guidance only, and are not binding on Company. For each physical component request from an End-User who has lost or misplaced the original physical component, Company may charge the End-User the shipping and handling costs related to the physical delivery in amounts to be agreed upon between Microsoft and Company. All Company’s prices to End-Users shall be in the currencies specified by Microsoft in the applicable SOW. Company may not otherwise charge any End-User for the physical delivery, except with Microsoft’s prior written consent.

     14. Collection from End-Users. Company shall be solely responsible for the collection of any amounts due from End-Users for the resale, licensing and delivery of each copy of the Product or Upgrade. [*]

     15. Reporting; Invoicing by Microsoft.

          (a) Invoicing by Microsoft. Microsoft, or one of its Affiliates or agents, will invoice Company for the sale of Products and Upgrades and for the amounts due to Microsoft at the frequency and in the manner specified in the SOW.

          (b) Sales Reports. Company shall submit to Microsoft on the schedule set forth in the applicable SOW [*] a report detailing the sales, distributions and deliveries made by Company of applicable Products and Upgrades during the preceding month (“Sales Report”) in a form and in the manner described in each applicable SOW.

          (c) Payment Terms by Company and Remittance. Except for Disputed Invoices (as defined below), Company shall pay all invoices to Microsoft within forty-five (45) calendar days from the date of the invoice. Company shall remit all amounts due to Microsoft in accordance with the remittance instructions provided by Microsoft in the applicable SOW or in writing by Microsoft.

          (d) Determining Applicable Price. For the purpose of any sales made under any applicable SOW created under this Addendum, Company shall purchase the Product at the applicable amount at the moment the sale is made, pursuant to the applicable SOW for such sale.

          (e) Currency. Payment by Company to Microsoft shall be in the currency(ies) specified in the applicable SOW or the then-current Price List. Payments by Microsoft to Company shall be in the currency(ies) specified in the applicable SOW.

          (f) Invoice Disputes. Company may dispute an invoice, in good faith, within thirty (30) calendar days from the date of the invoice (“Disputed Invoices”). Microsoft and Company will work together in good faith to resolve any disputes as soon as reasonably possible. Upon resolution of the dispute, Company shall remit the amount owed within ten (10) calendar days from date of the resolution of the dispute, if the Company is deemed to owe the disputed amount to Microsoft.

     16. Payments by Company to Microsoft. Microsoft shall invoice and collect from Company the amount set forth on the then-current Price List for each copy of a Product or Upgrade purchased by an End-User via the Approved Website.

     17. [*]

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

5

     18. Records and Audit. In accordance with and subject to Section 6 of the Agreement, Company shall maintain proper books and records with respect to the sales, distribution and delivery of copies of Products and Upgrades and Microsoft shall have the right to audit such books and records.

     19. Taxes. With regard to Company’s obligation to collect transaction taxes from End-Users, Company is ultimately responsible for the collection and remittance of all taxes from End-Users and all taxes on those amounts which are its obligation by the operation of law. Company shall pay all applicable value-added, sales and use taxes and other taxes levied on Company by a duly constituted and authorized taxing authority on the software and services provided under this Addendum and any applicable SOW with respect to the resale of Products and Upgrades to End-Users, or any transaction related thereto in each country in which the services and/or property are being provided or in which the transactions contemplated hereunder are otherwise subject to tax, regardless of the method of delivery. Nothing in this Section alters or amends, the tax obligations and rights of either Microsoft or Company set forth in the Agreement. However, in no event shall Company be responsible for any transaction tax imposed on any sale made by the Company where the incidence of the tax is on Microsoft.

     20. Effect of Termination. Upon termination or expiration of the Agreement or this Addendum, and in addition to the rights and obligations set forth in the Agreement with respect to termination and expiration, all rights granted to Company under this Addendum shall immediately cease. Additionally, Company shall immediately cease all activity relating to this Addendum and any applicable SOW. Company shall either (a) remove the Approved Website and any related links from the Internet, or (b) post a notice to all Approved Website visitors stating that Company is no longer authorized to resell the applicable Products. Microsoft may also redirect End-Users to an alternative website. If Company receives any End-User customer support requests after the date of termination or expiration, Company shall forward the requests to the Microsoft or a third party designated by Microsoft. Company must pay any amounts due to Microsoft within sixty (60) calendar days of termination or expiration.

     21. Entire Agreement. Upon execution by both parties, this Addendum (including Exhibits and SOWs referenced on the Addendum Summary and Signature Page, attached to this Addendum, or signed by the parties and expressly made a part of this Addendum) and the Agreement (including all terms and conditions, policies and procedures, Exhibits and SOWs referenced on the Agreement Summary and Signature Page, attached to the Agreement, or signed by the parties and expressly made a part of the Agreement) supersedes all prior and contemporaneous communications, whether written or oral, regarding the matters agreed to herein. This Addendum does not replace any separate written license agreement between Microsoft and the Company or the Digital Distribution Services Agreement dated January 1, 2006 between the parties. Except as otherwise expressly provided, in the event of an irreconcilable conflict between this Addendum and the Agreement, this Addendum controls with respect to any SOW expressly referencing this Addendum. In the event of a conflict between this Addendum and any SOW created hereunder, the provisions of the SOW with respect to such conflicting provision shall control over this Addendum, provided, however, that such conflicting provisions expressly reference the specific Section in the Addendum that the parties intend to amend or supersede AND the SOW is first approved in writing by Microsoft Legal & Corporate Affairs (“LCA”), such approval to be manifested by the affixation of LCA’s stamp approving the version of the SOW actually signed by Microsoft. In the event such LCA approval is not secured and the conflicting provision does not reference this Addendum, the provisions of this Addendum shall control and the provisions contained in the SOW shall be voidable at Microsoft’s election.

     22. No Further Amendment. Except as expressly modified by this Addendum, the Agreement shall remain unmodified and in full force and effect.

END OF ADDENDUM TERMS AND CONDITIONS

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

6

EX-10.27

Exhibit 10.27

OMNIBUS AMENDMENT TO MICROSOFT DIGITAL DISTRIBUTION AGREEMENT

Certain confidential information contained in this document, marked by asterisks, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.

AMENDMENT SUMMARY AND SIGNATURE PAGES

This Omnibus Amendment (“Amendment”) to the Microsoft Operations Digital Distribution Agreement is entered into between:

Microsoft Corporation

     A corporation organized under the laws of the State of Washington, U.S.A. (“Microsoft”)

AND

Digital River, Inc.

     A company organized under the laws of the State of Delaware, U.S.A. (“Company”)

Amendment Effective Date	This Amendment shall become effective on the latest of the three signature dates set forth below and, unless terminated earlier or otherwise specified in the applicable attachment, expires on August 31, 2009 (the “Amendment Expiration Date”).
Purpose and Scope:	Company and Microsoft are parties to a Microsoft Digital Distribution Agreement dated September 1, 2006 (as the same may have been amended, supplemented or otherwise modified from time to time, the “Agreement”), pursuant to which Company has provided E-Commerce Activities to Microsoft (defined below) in accordance with the terms of the applicable SOWs.
	In addition to the E-Commerce Activities originally contemplated in the Agreement, Company resells and distributes, as a seller of record, certain Microsoft Products to End-Users under the terms of a Direct Reseller Addendum to the Agreement dated September 1, 2006 between Company and Microsoft (as the same may have been amended, supplemented or otherwise modified from time to time, the “Direct Reseller Addendum”).
	Company also resells and distributes certain Microsoft Products to End-Users via Microsoft’s online marketplace located at the website with the primary home page identified by the URL http://www.windowsmarketplace.com under the terms of a Windows Marketplace Reseller Addendum between the parties dated December, 2006 (as the same may have been amended, supplemented or otherwise modified from time to time, the “Windows Marketplace Addendum”).
	The parties have now agreed on (a) a new pricing methodology to be applied to the E-Commerce Activities performed by Company, (b) the addition of certain optional services that may be selected by Microsoft where Microsoft has opted for “Tier 2” pricing (as defined in Exhibit F attached hereto) in connection with any E-Commerce Activities under the applicable SOW, and (c) new service level standards that will apply to the E-Commerce Activities where “Tier 2” pricing is selected, and (d) certain monetary penalties that will be assessed if Microsoft terminates the Office 2007 Digital Distribution Statement of Work to the Direct Reseller Addendum (as the same may have been amended, supplemented or otherwise modified from time to time, the “Office SOW”) for convenience prior to the SOW Expiration Date specified therein.
	Accordingly, this Amendment:
	(1) [*]
	(2) Adds a new marketForce Services Addendum to the Agreement describing the terms and conditions on which Company has agreed to provide certain, additional E-Commerce Activities where Microsoft selects “Tier 2” pricing for E-Commerce Activities to be provided by Company; and
	(3) [*]

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

OMNIBUS AMENDMENT TO MICROSOFT DIGITAL DISTRIBUTION AGREEMENT

This Amendment consists of the following:

• This Amendment Summary and Signature Page

• The Amendment Terms and Conditions

• Attachment 1: [*]

• Attachment 2: New marketForce Services Addendum to the Agreement

• Attachment 3: [*]

Microsoft and Company enter into this Amendment by signing below.

MICROSOFT CORPORATION	DIGITAL RIVER, INC.
Signature:	Signature:
Print Name:	Print Name:
Title:	Title:
Date:	Date:

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

AMENDMENT TERMS AND CONDITIONS

     1. [*]

     2. Addition of New marketForce Services Addendum to the Agreement. A new marketForce Services Addendum in the form of Attachment 2 to this Amendment is hereby added to the Agreement, effective as of the date hereof. The terms and conditions in the marketForce Services Addendum shall apply only where Microsoft has selected “Tier 2” pricing (as defined in Exhibit F to the Agreement) for E-Commerce Activities under the terms of the applicable SOW.

     3. Definitions. Capitalized terms used in and not otherwise defined in this Amendment or the attachments shall have the meaning given to them in the Agreement or the Direct Reseller Addendum, as applicable.

     4. No Further Amendment. Except as expressly modified by this Amendment, the Agreement shall remain unmodified and in full force and effect.

     5. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original and as executed shall constitute one agreement, binding on both parties even though both parties do not sign the same counterpart.

END OF AMENDMENT TERMS AND CONDITIONS

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

ATTACHMENT 1
[*]

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

ATTACHMENT 2

MARKETFORCE SERVICES ADDENDUM
TO
MICROSOFT OPERATIONS DIGITAL DISTRIBUTION AGREEMENT

     This Addendum supplements and, to the extent applicable amends, the Agreement and the Direct Reseller Addendum with respect to all statements of work whereby Microsoft selected the marketForces services as part of the E-Commerce Activities under an applicable SOW.

     1. General Terms Applicable to All marketForce Services.

          (a) Selection of marketForce Services. If Microsoft requests that “Tier 2” pricing apply in connection with Company’s performance of E-Commerce Activities, Microsoft shall have the right to request that Company provide one or more marketForce Services by so indicating in the applicable SOW. Company agrees to provide such marketForce Services in accordance with the terms and conditions of the Agreement, the applicable SOW and the applicable Marketing Plan (as defined below), at no additional cost to Microsoft (other than agreed upon pass-through costs).

          (b) Marketing Plans. If Microsoft selects any marketForce Service in the manner described in subsection (a), the specific activities to be carried out by Company as part of such marketForce Service shall be set forth in one or more marketing plans, which may be included in the applicable SOW or external to the SOW. Each marketing plan agreed upon by Microsoft and Company in connection with a marketForce Service (a “Marketing Plan”) shall contain service level agreements, metrics, and implementation timelines acceptable to Microsoft and such additional terms and conditions as may be requested by Microsoft. Company shall strictly comply with the terms of each Marketing Plan once agreed.

          (c) Liability to Third Parties. The performance of certain marketForce Services may require Company to enter into (or utilize existing) agreements with one or more third parties (including Customers). Company acknowledges that it will enter into such agreements in its own name and not as agent for Microsoft. Microsoft shall have no liability to any third party under or in connection with any such agreement, and Company agrees that Company’s role as an independent contractor shall be made clear to each of its customers and counterparties. Company shall not make any commitment on behalf of Microsoft in any such agreement. Company agrees to defend Microsoft, its affiliates, and directors, officers, employees and agents, from and against Third Party Claims to the extent arising out of or in connection with Company’s (i) compliance or noncompliance with any such third-party agreement (including any Provider Agreement or Affiliate Program Agreement), (ii) failure to comply with any applicable law, rule or regulation, or (iii) any other act or omission of Company in connection with the marketForce Services.

          (d) Term and Termination. The Term of any marketForce Service selected hereunder shall commence on the effective date of the applicable SOW and shall continue until the earlier of (1) the expiration or termination of such SOW, (2) termination of the Agreement, or (3) the date that Microsoft gives written notice to Company that it desires Company to cease performing such marketForce Service. Any termination of the marketForce Services provided hereunder shall not affect the Parties’ rights and obligations (including without limitation any payment obligations) with respect to the particular Service prior to such termination or the effectiveness of the applicable SOW.

          (e) Effect of Termination. Upon termination or expiration of the Agreement or this Addendum, and in addition to the rights and obligations set forth in the Agreement with respect to termination and expiration, all rights granted to Company under this Addendum shall immediately cease and Microsoft and Company shall work together in good faith to terminate or transition the marketForce Services in a manner that is not disruptive to Microsoft or its customers. If Microsoft notifies Company in writing, pursuant to Section 1(d)(3) above, that it desires Company to cease performing all marketForce Services under a particular SOW, but the SOW otherwise remains in effect, the parties agree that “Tier 1” pricing shall apply to any E-Commerce Activities provided by Company under such SOW after the date of Microsoft’s notice.

     2. marketForce Services.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

     If Microsoft chooses to select any marketForce Service, the terms and conditions applicable to such marketForce Service set forth below shall apply and supplement the terms and conditions of the Agreement and the applicable SOW. The marketForce Services selected by Microsoft shall be deemed E-Commerce Activities for all purposes of the Agreement.

o Deferred Payment Service.

I. Description of Deferred Payment Option. If Microsoft selects the Deferred Payment Service in connection with any SOW, Company shall provide to qualifying consumer Customers of the Company hosted Microsoft -branded Site described in the SOW (the “Selected Site”) the ability to purchase Products with deferred billing by Company (the “Deferred Payment Option”). The payment terms on which Company will offer the Deferred Payment Option to its consumer Customers shall be agreed upon by Microsoft and Company prior to its being offered on the Selected Site(s). Company will evaluate the creditworthiness of each applicant for the Deferred Payment Option and will be solely responsible for making the decision to extend or deny the Deferred Payment Option, in Company’s sole discretion. Company shall comply with all applicable laws, rules and regulations in connection with the offering and implementation of the Deferred Payment Option, and shall provide all applicable notices required in connection with any adverse credit decision or other action. Microsoft acknowledges that Company requires that Customers requesting the Deferred Payment Option present a valid credit card in good standing at the time of the order. Microsoft further acknowledges that Company may initiate a credit card authorization at the time of the order to verify that the Customer’s credit card is valid and in good standing at the time of the order, so long as the Customer has consented thereto.

II. Costs and Credit Risk. Each approved deferred payment transaction shall be considered an “Order” for purposes of the applicable SOW. Company alone shall bear the risk of collection on any accounts on which Company elects to sell Products with the Deferred Payment Option. [*]

o Paid Search Service

I. Definitions. The following definitions shall apply to this marketForce Service:

               (a) Advertisement-Sourced Purchase: The purchase of Products by consumer Customers directed to a Selected Site through a Program-Placed Advertisement.

               (b) Comparison Search Listing: Any comparison search engine listing placed with a Provider through a Program by Company.

               (c) CSE-Sourced Purchase: The purchase of Products by consumer Customers directed to the Company Selected Site through a Comparison Search Listing.

               (d) Program: The marketing and promotional program of a Provider for the placement of advertising and comparison shopping engine listings, contextual advertisements, and/or banner advertisements targeted to potential Customers based on the key words included in the potential Customers’ search of the Provider’s search engine as described in the Provider Agreement with that Provider.

               (e) Program-Placed Advertisement: Any advertisement relating to Microsoft products that are placed with a Provider through a Program by Company in accordance with the applicable SOW and/or Marketing Plan.

               (f) Provider: A third party subject to a Provider Agreement with Company.

               (g) Provider Agreement: Those agreements between Company and Providers for the provision of Internet text searching capabilities, comparison shopping capabilities, contextual advertisements, or banner advertisements through Programs.

II. Placements. If Microsoft selects the Paid Search Service in connection with any SOW, Company shall utilize its Provider Agreements with the Providers to place Program-Placed Advertisements under the Providers’ respective Programs with the goal of maximizing Advertisement-sourced Purchases and CSE-Sourced Purchases. The scope of the paid Search Services to be performed by Company and the content of any advertisement or listing placed with a Provider shall be subject to approval by Microsoft, in its sole discretion (including via the applicable Marketing Plan).

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

III. Confidentiality. Without limiting Section 7 or the Agreement or any Non-Disclosure Agreement signed between the relevant parties (“NDA”), Microsoft acknowledges and agrees that Providers are authorized to make use of any and all materials provided by Microsoft or Company in connection with Programs, subject to the terms and conditions of each individual Provider Agreement. To the extent Microsoft is provided with, or gains access to, any of Company’s proprietary processes related to the Programs, such processes shall be considered the confidential information of the Company for purposes of the NDA.

o Managed Email Service

I. Definitions.

     The following definitions shall apply to this Service:

          (a) Email-Sourced Purchase: The purchase of Products by consumer Customers directed to a Selected Site through a Managed Email.

          (b) Managed Email Activities: The activities performed by Company (either directly or through BlueHornet Networks, Inc., an Affiliate of Company, as Company’s permitted subcontractor) with respect to certain email campaigns designed to promote sales of Microsoft’s Products available through the Selected Site(s), which may consist of the following: (i) name capture consulting; (ii) strategy consulting regarding contact frequency, contact timing, email content/positioning, and scheduled/triggered programs; (iii) creative development for the format, positioning, and copy of the email content and subject line; (iv) creation of landing strategies and page optimization; (v) optimization services related to contact frequency, contact timing, email content, messaging, subject lines, and offers; (vi) email personalization where appropriate; (vii) tracking; (viii) quality assurance testing; (ix) email campaign execution (list loading, suppressions, application of predefined filters, and sending of Managed Emails); (x) delivery management; and (xi) Managed Email reporting and analysis.

          (c) Managed Email: An email message sent by Company or its permitted subcontractor in connection with the Managed Email Activities.

II. Default Language. U.S. English, unless otherwise specified in the applicable Marketing Plan.

III. Managed Email Activities. If Microsoft selects the Managed Email Service in connection with any SOW, Company (either directly or through BlueHornet Networks, Inc., an Affiliate of Company, as Company’s permitted subcontractor) shall provide the Managed Email Activities to Microsoft in order to facilitate sales of products through the Selected Site(s). The specific Managed Email Activities shall be agreed upon by Microsoft and Company in writing (including any Marketing Plan). Microsoft shall provided templates for all email campaigns to be implemented by Company, and Company shall use the Microsoft -sponsored templates without modification unless expressly permitted by Microsoft. Company will assist Microsoft in optimizing such email templates based on Company and its subcontractor’s expertise and will provide the ability for light personalization of such emails (e.g., first name, last name) if requested by Microsoft. Microsoft will approve the form of Managed Emails prior to deployment but shall have no responsibility for ensuring that the transmission of any Managed Email complies with applicable law.

     Upon execution of this SOW, Microsoft shall provide to Company (a) a customer email list for use in connection with the Managed Email Activities (the “Customer List”); and (b) any necessary suppression lists (including without limitation unsubscribe lists, opt out lists undeliverable lists, and invalid address lists). Microsoft represents and warrants that, as of the date a Customer List is first provided to Company, that Customer List contains contact information only for those individuals who have expressly consented to Microsoft to receive email communications from Microsoft, which consent is in accordance with all applicable laws, rules and regulations. Company shall be solely responsible for applying all suppression lists to the Customer Data and ensuring that no Managed Emails are sent to individuals on any suppression list provided to Company by Microsoft.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

o Managed Affiliate Service

I. Definitions. The following definitions shall apply to this marketForce Service:

          (d) Affiliate: Those entities that have entered into an agreement with an Affiliate Network Provider that allows such entities to direct consumers to product vendors.

          (e) Affiliate Network Provider: A third party that provides the ability for Company to enter into agreements with Affiliates to refer consumers of Microsoft’s Products to Selected Sites.

          (f) Affiliate Program: A program facilitated by an Affiliate Network Provider in which Affiliates direct potential purchasers of Microsoft’s Products to Selected Sites.

          (g) Affiliate Program Agreement: The written agreement between Company and an Affiliate Network Provider.

          (h) Affiliate-Referred Purchases: The purchase of Products by consumer Customers directed to Microsoft’s Store by an Affiliate through an Affiliate Program.

          (i) Managed Affiliate Program or the Program: Company’s management of the Affiliate Programs.

II. Advisory Services. If Microsoft select the Managed Affiliate Service in connection with any SOW, Company shall enter into Affiliate Program Agreements and implement the Affiliate Programs in the manner agreed upon by Company and Microsoft in the applicable Marketing Plan. Microsoft shall have the right and opportunity to review and approve the content of any advertisement or link to be used by an Affiliate in connection with its Affiliate Program prior to such use. Company shall strictly comply with Microsoft’s instructions regarding any aspects of the Managed Affiliate Service without limiting Section 7 of the Agreement or the NDA. Microsoft acknowledges and agrees that each Affiliate Network Provider is authorized to make use of any and all materials provided by Microsoft or Company in connection with an Affiliate Program.

III. Confidential Information. To the extent Microsoft is provided with, or gains access to, any of Company’s proprietary processes related to Company’s management of Affiliate Programs, such processes shall be considered confidential information of the Company pursuant to the NDA.

o Site Optimization Service

I. Definitions. The following definitions shall apply to the Site Optimization Service:

          (j) Challenger Page: A web page (or group of web pages, which shall be construed as a single web page for the purposes of this Addendum) corresponding to the Control Page that has been redesigned in connection with the Company Optimization Service, and which is Tested against the Control Page.

          (k) Company Optimization Service: The testing and web page optimization services performed by Company pursuant to this Addendum, the applicable SOW, or the Marketing Plan.

          (l) Control Page: The individual web page (or series of web pages as agreed upon by Company and Microsoft, which shall be construed as a single web page for the purposes of this Addendum) on the Selected Site(s) as it exists at the time Testing for that page is commenced. Microsoft shall give notice to Company of any change in a Control Page during a Test Period and, to the extent practicable, prior to such change.

          (m) Optimization Software: The then-current version of (a) the proprietary mbox.js and adbox software, and (b) the proprietary optimization application software, provided or used by Company pursuant to this Addendum, which shall be solely owned by Company and/or its subcontractor.

          (n) Test or Testing: The process for determining the Test Lift for individual Challenger Pages, which shall run until the earlier of (a) the date on which Test data for any Challenger Page part of such Test becomes statistically significant at a Ninety Percent (90%) confidence level, or (b) the date on which it becomes apparent that Test Lift for all

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

Challenger Pages subject to the Test has not, and will most likely not, produce a statistically significant winner (such period for each Test, the “Test Period”).

          (o) Testing and Optimization Applications: The following web-based applications:

               (i) The Company provided web-based application that allows a party to manage the Visitor pool to divide website traffic into groups for Testing, manage such groups, and track success of a given campaign.

               (ii) The Company provided web-based application that allows a party to establish settings for delivery of default content.

               (iii) The Company provided web-based application that allows Testing for an unlimited number of web pages (or series of web pages) on Selected Sites.

               (iv) The Company provided web-based application that, when the pages of a Selected Site(s) are displayed on the Visitor’s browser, the pages communicate with Company’s campaign servers via the Optimization Software.

               (v) The Company provided web-based conversion optimization application that allows a party to specify content for Testing.

          (p) Test Lift: The Revenue Per Visitor for a Challenger Page compared to that of the Control Page, arrived at by taking the Revenue Per Visitor for a Challenger Page during a Test Period, divided by the Revenue Per Visitor for the Control Page during the same Test Period, minus 1, expressed as an integer carried out to two decimal places rounded to the nearest hundredth.

          (q) Visitor: An individual, business entity or other legally recognized entity that visits a website and who may enter into a transaction in the manner described more specifically in the Agreement.

II. In General. Company offers the Company Optimization Service, through which tests may be run of various web site layouts in order to obtain objective data regarding which combinations of content, offers, and positioning are likely to improve web site performance. If Microsoft selects the Site Optimization Service in any applicable SOW, Company shall implement and provide the Company Optimization Service for Selected Sites. Immediately prior to Testing of each page or series of pages, Company and Microsoft shall mutually agree upon the web pages (or series of pages) on the Selected Sites to be optimized through the Company Optimization Service. For each Control Page, Company, with input from Microsoft, shall develop one or more sets of Challenger Pages for Testing by Company (e.g., page layout changes, page flows, new navigation, etc.). Company shall obtain Microsoft’s approval in writing or by email of the Challenger Pages and the test plan prior to the commencement of Testing of those Challenger Pages. Company shall comply with any requirements of Microsoft in implementing the Company Optimization Services and shall immediately cease from providing any Company Optimization Service at Microsoft’s request. Microsoft shall be deemed to own the results of any Testing performed by Company and all data collected by Company in connection therewith.

III. Microsoft Deliverables; Compliance With Intellectual Property Provisions. When requested by Company, Microsoft shall (a) provide such data as is agreed upon by the parties in the applicable Marketing Plan to facilitate the implementation of the Site Optimization Services; (b) review and accept or reject creative assets; and (c) provide Testing execution assistance and feedback on reporting analysis as reasonably requested by Company. In addition, Microsoft shall place Optimization Software on Microsoft-hosted pages which are subject to Testing in order to allow for Company to perform Testing of such pages and generate Test results once mutually acceptable license terms for such Optimization Software have been established in writing. Company shall in all events comply with Section 5 of the Agreement in connection with its performance of any Company Optimization Services.

o Free Trial Optimization

I. Free Trial Activities. If Microsoft selects the Free Trial Activities in connection with any SOW, Company shall make available to Customers of the Selected Sites a program through which Customers may obtain and use certain of Microsoft’s Products mutually agreed upon by Company and Microsoft (each such Product, a “Trialed Product”) for a fixed period of time (such fixed period of time, the “Free Trial Period”), where Company will automatically complete the

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

purchase transaction for any Customer who has not canceled his/her trial of Trialed Products prior to the end of the Free Trial Period. The terms on which Company shall provide the Free Trial Activities shall be set forth in the applicable Marketing Plan, and Company agrees to strictly comply therewith. Microsoft acknowledges that Company requires that Customers requesting Trialed Products for trial through the Program present a valid credit card in good standing at the time of the request. Microsoft further acknowledges that Company may initiate a credit card authorization at the time of the request to verify that the Customer’s credit card is valid and in good standing at the time of the request, so long as the Customer has consented thereto. Company shall place all required notices and disclaimers on the Selected Sites to inform Customers of the terms and conditions of the Program.

     Microsoft agrees and acknowledges that a live executable file (not trial version) will be delivered to a Customer for trial at the commencement of the Free Trial Period as part of the Program, in each case in accordance with the Marketing Plan and Microsoft’s instructions. Company shall not modify, orally or in writing, the terms of any end user license agreement included with the Trialed Products by or on behalf of Microsoft.

     Company shall provide Customers with the ability to cancel their trial of Trialed Products prior to the end of the Free Trial Period, in which case Customers shall not be billed for the Trialed Products. As of the end of the Free Trial Period, in the event that an Customer has not canceled his/her trial of any of the Trialed Products, Company shall complete the Customer’s purchase transaction for such Trialed Products by settling the total price of all such Trialed Products on the credit card of that Customer and in accordance with any disclosures made to the Customer and applicable law.

     Unless otherwise provided in the applicable Marketing Plan, Microsoft agrees and acknowledges that returns and refund requests will be granted to Customers up to thirty (30) calendar days after the date of the Customer’s purchase of the Trialed ProductsCustomers who wish to cancel their trial through the Program will be required to execute an Electronic Letter of Destruction in form and content acceptable to Microsoft similar to Company’s current practice for returns and refunds.

o Fireclick Web Analytics — Bundled Services

I. General Obligations. If requested by Microsoft in connection with any SOW, Company shall provide such Analytics Services to Microsoft as are specified in the applicable SOW and/or Marketing Plan. To the extent necessary, Microsoft will enable the Selected Site(s) to use the agreed upon Analytics Services by adding the appropriate software code provided by Fireclick to the Selected Site(s). At Microsoft’s request, the license of the Fireclick software and any other Company or third-party Intellectual Property provided by Company to Microsoft in connection with the performance of the Analytics Services shall be documented in a separate license agreement in form and content acceptable to Microsoft, and such software and Intellectual Property shall, in any event, comply with the terms of Sections 5(c)(v) and 5(d) of the Agreement. Absent any such request, the respective rights and obligations of the parties in respect of any Intellectual Property utilized in connection with the performance of the Analytics Services shall be governed by Section 5 of the Agreement.

Analytics Services shall be provided for the number of Selected Sites agreed upon by Microsoft and Company in the applicable Marketing Plan. Company will provide reasonable “train the trainer” training to Microsoft personnel, at times and at locations mutually agreed upon by Company and Microsoft (including in the applicable Marketing Plan). Company will provide support to Microsoft regarding the Analytics Services during regular business hours, Central Standard Time. Microsoft will cooperate as reasonably requested by Company for purposes of allowing Company to render such support and otherwise perform the Analytics Services as specified in the applicable Marketing Plan.

o SoftwarePassport

I. General Obligations. If requested by Microsoft in connection with any SOW, Company shall promptly deliver SoftwarePassport to Microsoft and shall apply any applicable SoftwarePassport Components and any other functionalities agreed upon by the parties to the Products identified by Microsoft, in each case in accordance with applicable SOW and/or Marketing Plan. At Microsoft’s request, the license of SoftwarePassport and any other Company or third-party Intellectual Property provided by Company to Microsoft in connection with the performance of the related services shall be documented in a separate license agreement in form and content acceptable to Microsoft, and such software and Intellectual Property shall, in any event, comply with the terms of Sections 5(c)(v) and 5(d) of the Agreement. Absent any such request, the respective rights and obligations of the parties in respect of any Intellectual Property provided by Company to Microsoft or utilized in connection with the performance of the E-Commerce Activities related to SoftwarePassport shall be governed by

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

Section 5 of the Agreement. Microsoft acknowledges that any DRM Component Engine other than the SoftwarePassport DRM Component Engine is licensed by Company from third parties and sublicensed to Microsoft hereunder, and that Company (rather than such third party) is responsible for the provision of support relating to the installation and use of such software.

Company will provide Microsoft with any technical assistance (including without limitation providing all necessary .dll or other files for Microsoft to incorporate into the Products) necessary to enable and implement those Components and functionalities identified in the applicable SOW and/or Marketing Plan into the applicable Products.

II. Components. SoftwarePassport is comprised of the following components (each, a “Component,” and in any combination, “Components,”) which will be provided to Microsoft for use in Wrapped Products if specified above:

• The “DRM Component,” if embedded in a Product, imposes technological restrictions on the use of that Wrapped Product, including the ability to specify a maximum useable period for that Wrapped Product and to disable certain functionality within that Wrapped Product. The functionality which may be utilized to create Wrapped Products through the DRM Component may differ depending on the DRM Component Engine specified and is specified in the documentation for the selected DRM Component Engine.

• The “User Metrics & Communications Component,” if packaged with a Wrapped Product, permits Company (or its authorized designee) to collect, analyze and provide reports to Microsoft of data regarding End Users’ uses of that Wrapped Product (the “Usage Data”), and facilitates contacts with, and transmission of information to, End Users from within that Wrapped Product. Company represents and warrants that Usage Data shall not contain Personal Information of End Users or any End User credit card information. The use, maintenance, storage and onward disclosure of transaction data regarding the sale or licensing of Products to End Users, including any Personal Information of End Users contained therein, shall remain subject to the terms of the Agreement and applicable laws and regulations. Unless otherwise specified in the applicable SOW or Marketing Plan, all Usage Data collected through the User Metrics & Communications Component shall be deemed to be owned by Microsoft and the confidential information of Microsoft for purposes of the NDA. Notwithstanding the foregoing, but subject to the terms of the Agreement and any limitations contained in the applicable SOW and/or Marketing Plan, Microsoft consents to the collection, possession and use of such Usage Data by Company (or its authorized designee) solely in connection with the performance of the E-Commerce Activities. The parties agree to work together in good faith to develop any notices, disclaimers, consents and waivers on the applicable Site or in the Wrapped Product which are required by applicable law or deemed necessary by Microsoft, (i) sufficient to notify End Users about the collection of Usage Data, (ii) sufficient to obtain the unambiguous consent of an End User to receive contacts and/or information from Microsoft (and, if Microsoft so consents, Company) from within the Wrapped Product, and (iii) sufficient to permit the transfer of information concerning a customer or End User, including without limitation Usage Data, to Company (or its authorized designee) in order to permit Company to perform the relevant E-Commerce Activities.

III. Optional Programs.

• If Trial Optimization Services are selected by Microsoft in connection with any SOW, Company shall provide Trial Optimization Services for the Wrapped Products specified by Microsoft in the applicable Marketing Plan.

• If Country-Based Licensing is selected by Microsoft in connection with any SOW, Company shall provide Country-Based Licensing for the Wrapped Products specified by Microsoft in the applicable Marketing Plan.

IV. Definitions. The following definitions shall apply to this marketForce Service:

               (a) Activation: The receipt of a license key from Company’s activation server, which enables use of the Wrapped Product without limitations imposed by SoftwarePassport functionality in accordance with the EULA for that Wrapped Product.

               (b) Conversion: The purchase by an End User of the right to use a Wrapped Product without limitations imposed by SoftwarePassport functionality, in accordance with the terms of the EULA for that Wrapped Product. The Conversion of a Wrapped Product which is processed by Company shall be considered the sale of that Product to an End User by Company.

               (c) Country-Based Licensing: Functionality which, if provided by Company, enables Microsoft to control Activation of a Wrapped Product on a country-by-country basis, in accordance with Microsoft’s EULA for that Wrapped Product and with country-specific Product pricing.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

               (d) Optional Program(s): Trial Optimization Services, Country-Based Licensing, or both.

               (e) Trial Optimization Services: A service which, if provided by Company, enables Company to monitor the use and Conversion of Wrapped Products in order to provide Microsoft with an assessment of Conversion rates.

               (f) SoftwarePassport: The Company-provided functionality which enables Microsoft to impose technical restrictions on the use of a Wrapped Product and/or to provide certain data related to the usage of a Wrapped Product.

               (g) Wrap: Each instance of the conversion of a Product into a Wrapped Product using SoftwarePassport. (For the avoidance of doubt, re-Wrapping due to (a) a new or updated version of the Product, (b) changes to the Product attributes or details in a Wrapped Product, or (c) a new or updated version of SoftwarePassport, shall be considered a separate Wrapping of that Product.)

               (h) Wrapped Product: A Product into which certain Components and functionality of SoftwarePassport have been embedded, and/or with which certain Components and functionality of SoftwarePassport have been packaged.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

ATTACHMENT 3
[*]

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

EX-10.28

Exhibit 10.28

AMENDMENT TO MICROSOFT OPERATIONS DIGITAL DISTRIBUTION
AGREEMENT

Certain confidential information contained in this document, marked by asterisks, has been omitted
and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.

AMENDMENT SUMMARY AND SIGNATURE PAGES

This Amendment (“Amendment”) to the Microsoft Operations Digital Distribution Agreement is entered into between:

Microsoft Corporation

     A corporation organized under the laws of the State of Washington, U.S.A. (“Microsoft”)

AND

Digital River, Inc.

     A company organized under the laws of the State of Delaware, U.S.A. (“Company”)

Amendment Effective Date and Expiration Date:	This Amendment shall become effective on the latter of the two signature dates set forth below. Unless terminated earlier pursuant to the terms of the Agreement, this Amendment shall expire on September 1, 2011 (the “Amendment Expiration Date”).
Purpose and Scope:	Company and Microsoft are parties to a Microsoft Operations Digital Distribution Agreement dated September 1, 2006 (as the same may have been amended, supplemented or otherwise modified from time to time, the “Agreement”), pursuant to which Company has provided E-Commerce Activities to Microsoft in accordance with the terms of the applicable SOWs.
	In addition to the E-Commerce Activities originally contemplated in the Agreement, Company resells and distributes, as a seller of record, certain Microsoft Products to End-Users under the terms of a Direct Reseller Addendum to the Agreement dated September 1, 2006 (as the same may have been amended, supplemented or otherwise modified from time to time, the “Direct Reseller Addendum”).
	Company also resells and distributes certain Microsoft Products to End-Users via Microsoft’s online marketplace located at the website with the primary home page identified by the URL http://www.windowsmarketplace.com under the terms of a Windows Marketplace Reseller Addendum between the parties dated December, 2006 (as the same may have been amended, supplemented or otherwise modified from time to time, the “Windows Marketplace Addendum”).
	[*] This Amendment may be referred to by the Parties in other agreements between the Parties as the “New Deal Amendment.”

This Amendment consists of the following:

• This Amendment Summary and Signature Page

• The Amendment Terms and Conditions

• Attachment 1: [*]

Microsoft and Company enter into this Amendment by signing below.

MICROSOFT CORPORATION	DIGITAL RIVER, INC.
Signature:	Signature:
Print Name:	Print Name:
Title:	Title:
Date:	Date:

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

AMENDMENT TERMS AND CONDITIONS

     1. [*]

     2. [*]

     3. [*]

     4. Extension of Agreement and Direct Reseller Addendum. Unless terminated earlier pursuant to the terms of the Agreement, the terms of the Agreement and the Direct Reseller Addendum, as amended, are hereby extended from August 31, 2009 to September 1, 2011.

     5. Amendment to the Terms. The parties agree that sections 5(b)(iii) and 5(c)(i) of the Agreement is hereby deleted in its entirety and replaced with the following:

     5(b)(iii) License to Company IP That Is Incorporated Into or Required For the Use of Deliverables or Inventory. If Company IP is incorporated into any Inventory or Deliverable, or and is necessary for the unfettered use or distribution of any Inventory or Deliverable by Microsoft or any Customer, then, unless the parties agree in writing on applicable license terms, Company is hereby deemed to grant to Microsoft and its Affiliates a worldwide, nonexclusive, perpetual (unless the Agreement terminates in accordance with section 15, in which case the applicable license grant will automatically terminate except for the instance in which Microsoft or a Customer requires continued use of Company IP that has been incorporated into Inventory existing at the time of termination, in which case Company grants the Customer and Microsoft the right to continue use of the Company IP solely to the extent necessary to use or distribute such existing Inventory), irrevocable, royalty-free, fully paid-up right and license, including under all current and future Intellectual Property, in each case, solely to the extent necessary to use or distribute such Inventory or Deliverable, as applicable, to:

     (A) Use the applicable Company IP;

     (B) publicly perform or display, transmit and distribute, copies of the applicable Company IP; and

     (C) sublicense to third parties the foregoing rights, including the right to sublicense to further third parties.

5 (c) Ownership and Use of Deliverables.

(i) Ownership of Deliverables. Except as expressly permitted in a SOW, All Deliverables shall be created by Company for Microsoft. Subject to Company’s retention of its rights in any Company IP, except as otherwise expressly provided in a SOW, all Deliverables that are specifically commissioned by Microsoft and originally created by Company for Microsoft are “work made for hire” for Microsoft under applicable copyright law. To the extent any Deliverables do not qualify as a work made for hire, Company hereby assigns to Microsoft (and its successors and assigns) all right, title and interest in and to the Deliverables, including all Intellectual Property rights therein. To the maximum extent permitted by law, Company waives all moral rights that may exist in the Deliverables. Deliverables shall include any data entered into any Company database in connection with performance of E-Commerce Activities. For the avoidance of doubt, nothing in this section 5(c)(i) shall be construed to limit Company’s retention of its rights in Company IP as provided in section 5(c)(iv).

     6. Definitions. Capitalized terms used in and not otherwise defined in this Amendment or Attachment 1 to this Amendment shall have the meanings given to them in the Agreement, the Direct Reseller Addendum or the Windows Marketplace Addendum (as the case may be).

     7. No Further Amendment. Except as expressly modified by this Amendment, the Agreement, the Direct Reseller Addendum, the Windows Marketplace Addendum and the existing SOWs shall remain unmodified and in full force and effect.

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

     8. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original and as executed shall constitute one agreement, binding on both parties even though both parties do not sign the same counterpart.

END OF AMENDMENT TERMS AND CONDITIONS

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

ATTACHMENT 1
[*]

* Confidential treatment has been requested for portions of this agreement. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as *. A complete version of this agreement has been filed separately with the Securities and Exchange Commission.

EX-31.1

EXHIBIT 31.1

CERTIFICATIONS

I, Joel A. Ronning, certify that:

1. I have reviewed this Amendment No. 1 to annual report on Form 10-K of Digital River, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;
(b)	Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)	Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)	Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):

(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

/s/ Joel A. Ronning  

Joel A. Ronning 

Chief Executive Officer 

Date: August 19, 2010

EX-31.2

EXHIBIT 31.2

CERTIFICATIONS

I, Thomas M. Donnelly, certify that:

1. I have reviewed this Amendment No. 1 to annual report on Form 10-K of Digital River, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officers and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;
(b)	Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c)	Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)	Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors (or persons performing the equivalent functions):

(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

/s/ Thomas M. Donnelly  

Thomas M. Donnelly 

Chief Financial Officer 

Date: August 19, 2010