Software License Agreement MaUI SUBSCRIPTION LICENSE AGREEMENT This Subscription License Agreement (the “Agreement”) is entered into effective as of the date hereof (the “Effective Date”), by and between CineCert Inc., a Delaware corporation (“Licensor”), and You (“Licensee”), with reference to the following: A. Licensor has developed certain proprietary software products as more fully described below (the “CineCert Software”). B. Licensee desires to license particular software modules of such CineCert Software (as more fully described below, the “Licensed Modules”) on the terms and conditions contained herein. C. Licensor desires to grant to Licensee a license for the Licensed Modules for the Term and Licensee desires to accept such license on the terms and conditions contained herein. NOW THEREFORE, based on the above premises and in consideration of the mutual covenants and agreements contained herein, the parties hereby agree as follows: 1. Certain Definitions. As used herein, the following terms shall have the respective meanings set forth below: 1.1. “CineCert Software” shall mean any of Licensor’s software products and any software, modules, hardware and documentation related or necessary thereto, and all Intellectual Property Rights arising therefrom or subsisting therein, including without limitation the Licensed Modules. 1.2. “Corrections” shall mean error corrections, bug fixes, patches, compatibility, and interoperability/standards compliance modifications to the Licensed Modules. 1.3. “Delivery Date” shall mean the date on which all elements of the Licensed Modules, or any set thereof, which are necessary and sufficient to begin use of the Licensed Modules have been delivered or have been made accessible to Licensee. 1.4. “Hosting Environment” shall have the meaning set forth in Exhibit A hereof as such exhibit is amended from time to time. 1.5. “Installer” shall mean an archival file that may be unpacked and processed to produce an executable image of the Licensed Modules. 1.6. “Intellectual Property Rights” shall mean all intangible, proprietary and other intellectual property rights, however denominated and arising anywhere in the world, including without limitation, copyrights, patents, trade secrets, trademarks, and any applications therefor, and renewals and foreign counterparts thereof. 1.7. “Licensee’s Internal Systems” shall mean those computer systems and software, available solely for Licensee’s internal use, and which incorporate the Workstation on which the Licensed Modules are installed. 1.8. “License Manager” shall mean a module of the CineCert Software that monitors and restricts access to the Licensed Modules. 1.9. “Licensed Modules” shall mean the modules of the CineCert Software set forth in Exhibit A-1 hereof, as such exhibit is amended from time to time. Licensed Modules shall also include any software, hardware and documentation related or necessary thereto, and any Corrections or Upgrades to such Licensed Modules when provided. 1.10. “License Period” shall mean, with respect to the Licensed Modules or any set thereof, the length of time for which the license(s) granted pursuant to Section 2 hereof is/are valid. 1.11. “Software Development Kit” or “SDK” shall mean any header files, example source code and documentation provided to enable Licensee to make the Licensed Modules interoperable with Licensee’s Internal Systems. 1.12. “Subscription Fee” shall have the meaning set forth in Exhibit A hereof as such exhibit is amended from time to time. 1.13. “Term” shall have the meaning set forth in Section 7.1. 1.14. “Upgrade” shall mean any modification or upgrade to the Licensed Modules that provides enhanced functionality or new features to the Licensed Modules, other than a Correction. Licensor shall designate any new version of the Licensed Modules as either an Upgrade or a Correction, in its reasonable discretion. 1.15. “Workstation” or “Node” shall mean a single computing device, with or without user interface, which is incorporated into the Licensee Internal Systems, on which the Licensed Modules are installed and which is running a single operating system instance. 2. Grant of License. 2.1. Scope of License. Subject to Licensee’s compliance with the terms and conditions of this Agreement, Licensor hereby grants to Licensee, for the duration of the License Period, a non-exclusive, non-transferable, non-sublicensable, limited license to install and use the Licensed Modules on the Hosting Environment as authorized by the License Manager and in accordance with the additional license terms, conditions and limitations set forth in Exhibit A and in conformance with the processes and procedures detailed in the user manual to the Licensed Modules (if any). 2.2. Restrictions. Licensee acknowledges and agrees that it is not receiving a license to, and shall not (a) modify the Licensed Modules in any way; (b) install, reproduce, distribute or otherwise use the Licensed Modules separate from or independent of the Hosting Environment, whether or not such use is for an internal purpose, or otherwise make any use of the Licensed Modules external of the Hosting Environment; or (c) sell, rent, sublicense, transfer, assign or otherwise permit any third party to have any direct or indirect access to or use of, the Licensed Modules either directly or by interconnecting the Licensed Modules to any public or private network other than Licensee’s Internal Systems; or (d) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of, the Licensed Modules; or (e) create any derivative work from the Licensed Modules; or (f) modify, interfere with or defeat the operation of the License Manager, evade or avoid any restriction or limitation imposed by the License Manager, or operate the Licensed Modules in any manner, or on any Hosting Environment, which restricts the functionality of the License Manager; or (g) utilize the Licensed Modules in any manner prohibited by the law of any applicable jurisdiction, by copyright restriction, or by any licensing restriction of any software or hardware to which Licensee is subject. Licensee receives no rights in Licensor’s CineCert Software, Licensed Modules or any Intellectual Property Rights therein, except for the limited license to the Licensed Modules set forth in this Section 2. 2.3. Source Code. Licensee shall not have access to, and is not receiving a license for, the source code of the Licensed Modules. 2.4. Reservation of Rights; No Implied License. All right, title, and interest to the CineCert Software, Licensed Modules and associated Intellectual Property Rights shall remain solely and exclusively the property of Licensor. Licensee obtains only a limited license to the Licensed Modules subject to all of the terms and conditions set forth in this Agreement. Except as expressly set forth in this Section 2, Licensee acknowledges and agrees that this Agreement in no way shall be construed to provide to Licensee or any third party, any right, title or interest in and to the Licensed Modules, CineCert Software or any of Licensor’s Intellectual Property Rights. 3. Maintenance and Technical Support. 3.1. Maintenance and Support to Licensee. During the Term, Licensor shall provide “Maintenance” for the Licensed Software on an ‘as-needed’ basis, as determined by Licensor in its sole discretion, subject to the terms, conditions and limitations set forth in Exhibit A. “Maintenance” shall be defined as the provision by Licensor of Corrections to the Licensed Software, as and when Licensor develops such Corrections generally, and the provision of reasonable technical support relating to such Corrections by electronic mail during Licensor’s normal business hours. Any services requested by Licensee that are not “Maintenance” are considered “Support” and shall be charged at Licensor’s prevailing rates and shall be subject to availability. 3.2. Integration Consulting, Training, and Compliance Testing. At the request of Licensee, Licensor will provide integration consulting, operation, application, and/or support training to Licensee’s personnel (“Consulting”) at Licensor’s prevailing rates as adjusted from time to time. Any such Consulting is not included in Maintenance and shall occur at Licensor’s offices or another location that is mutually agreed between the parties. The provision of Consulting services shall be subject to Licensor’s availability to provide such services. 3.3. Upgrades. Maintenance does not include Upgrades to the Licensed Modules. During the Term of this Agreement, at Licensor’s discretion, Licensor may develop Upgrades to the Licensed Modules. Licensor will make such Upgrades available to Licensee on Licensor’s standard pricing, terms and conditions for such Upgrades. Upon the delivery of an Upgrade by Licensor, such Upgrade shall be deemed part of the Licensed Modules for all purposes of this Agreement. 3.4. Feedback. To the extent (if any) that Licensee has any Intellectual Property Rights in Feedback (as defined below) that Licensee provides to Licensor, Licensee hereby grants Licensor a perpetual, irrevocable, worldwide, license to use, modify and create derivative works from, and to use without restriction in any and every way, any Feedback communicated by Licensee to Licensor during the Term, without compensation, without any obligation to report on such use, and without any other restriction or obligation whatsoever. Notwithstanding the provisions of Section 5 below, Feedback will not be considered Licensee’s Confidential Information. “Feedback” shall mean any suggestion or idea for modifying or expanding any of Licensor’s products or services, including without limitation all Intellectual Property Rights in any such suggestion or idea. 4. Payments and License Period. 4.1. License Fee and License Period. The Subscription Fee payable for use of the Licensed Modules during the License Period shall be due in advance, plus sales and/or use taxes, as applicable, as set forth in Exhibit A hereto. The License Period shall begin on the Effective Date and, unless extended as provided herein, shall end on the date set forth in Exhibit A. 4.2. License Period Extension. Licensee may extend the License Period by making a timely payment of the Subscription Fee in effect at the time, unless Licensor elects to allow the License Period to expire without extension. If Licensee does not make a timely payment of the Subscription Fee, the License Period shall automatically expire on the date set forth in Exhibit A. 4.3. Effect of Termination of License Period. Upon the expiration of the License Period for any set of Licensed Modules or instances thereof, such Licensed Modules or instances shall automatically become unavailable for use by Licensee, and Licensee shall immediately discontinue use of, and return to Licensor, any materials using or incorporating the Licensed Modules or instances thereof or documentation relating thereto or any of Licensor’s Intellectual Property Rights. The licenses and all rights granted herein shall expire, and Licensee shall immediately destroy or permanently delete all copies of the Licensed Modules or instances thereof and cease using such Licensed Modules or instances thereof for any purpose. An officer of Licensee shall, upon completion by Licensee of such destruction, certify in writing to Licensor that Licensee has in fact fulfilled its obligations pursuant to this Section. 4.4. Failure to Make Payments. Licensor is not required to provide any product or service hereunder during any period in which invoiced amounts are overdue. 5. Confidentiality; Injunctive Relief. 5.1. Confidential Information. Licensee agrees to keep in strict confidence all trade secrets, technical, business, marketing, planning and other proprietary or confidential information provided or disclosed by or on behalf of Licensor in connection with this Agreement (including without limitation, the Licensed Modules), whether in written, oral or other formats (“Confidential Information”), except for any of such information which Licensee authorizes the other party in writing to disclose. Licensee may not use or disclose, nor permit any third party to use or disclose, the Confidential Information for any unauthorized purpose or to any unauthorized party. Licensee shall take all reasonable and necessary measures, including but not limited to court proceedings, at its own expense to prevent unauthorized access to, disclosure or use of such Confidential Information. Licensee will promptly notify Licensor if any unauthorized party obtains access to any Confidential Information or if it becomes aware of any unauthorized use or disclosure of any Confidential Information. The confidentiality provisions of this Section 5 shall survive termination for so long as the Confidential Information remains confidential or proprietary. 5.2. Limitations on Non-Disclosure. The non-disclosure obligations of Section 5.1 shall not apply to the extent that: (a) the Confidential Information was known to the disclosing party prior to its receipt from the non-disclosing party; or (b) the Confidential Information is or becomes part of the public domain other than by the wrongful act of the disclosing party; or (c) the Confidential Information is rightfully disclosed to the disclosing party by a third party that is not legally restricted from disclosing such Confidential Information; or (d) disclosure of such Confidential Information is required by a judicial order or pursuant to applicable law, rule or regulation, provided that the disclosing party promptly notifies the non-disclosing party of such requirement, provides the non-disclosing party with a reasonable opportunity to file for or obtain a protective order or otherwise protect the Confidential Information, and reasonably cooperates with the non-disclosing party in connection therewith. 5.3. Injunctive Relief. Licensee agrees that, in the event of an actual or alleged breach of either Section 2 or Section 5 of this Agreement, or any misappropriation, infringement or unauthorized use of Licensor’s Intellectual Property Rights, such party shall be entitled to seek a temporary restraining order, injunction, or other form of equitable relief against the continuance of such action, in addition to any and all other remedies, including monetary damages, to which such party may be entitled. 6. Indemnification and Limited Warranties. 6.1. Indemnification by Licensee. Licensor shall not have any liability to Licensee for, and Licensee will indemnify, defend and hold Licensor harmless against any claims, damages, liabilities, losses and expenses (including reasonable outside attorneys’ fees and costs) arising from any claim resulting from or alleging (i) arising out of or in connection with the installation, operation or commercial use of the Licensed Modules or any products or services related thereto, and (ii) any breach or inaccuracy of any obligation, covenant, representation or warranty hereunder. 6.2. Limitation on Damages. THE FOREGOING STATES THE PARTIES’ ENTIRE LIABILITY UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INTANGIBLE, CONSEQUENTIAL, PUNITIVE OR SPECULATIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE LICENSED MODULES OR DOCUMENTATION WITH RESPECT THERETO, EVEN IF SUCH PARTY HAS BEEN ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT EXCEED THE MOST RECENT SUBSCRIPTION FEE FOR THE PORTION OF THE LICENSED MODULES FROM WHICH THE DAMAGES ARE ALLEGED TO HAVE ARISEN; PROVIDED THIS SECTION SHALL NOT APPLY TO A BREACH OF SECTION 2 OR SECTION 5 HEREOF. 6.3. Limitation on Warranties. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE LICENSED MODULES ARE PROVIDED “AS IS” AND ARE NOT WARRANTED TO BE COMPLETELY FREE FROM ERROR. LICENSOR DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 6.4. Failure of Essential Purpose. THE PARTIES AGREE THAT EVEN IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED IN ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY, WAIVERS, DISCLAIMERS AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT. 7. Term and Termination. 7.1. Term. The Term of this Agreement shall commence upon the Effective Date and continue until terminated pursuant to this Section 7. The Term shall automatically terminate if the License Period(s) for all Licensed Modules have expired without extension or renewal thereof. 7.2. Termination in the Event of Default. Licensor shall be entitled to terminate this Agreement upon written notice to the other party if the other party materially breaches any obligation hereunder, which breach continues or remains uncured for a period of thirty (10) days after receipt of written notice from Licensor, unless such breach cannot by its nature be cured, in which event the defaulting party shall be deemed in default hereof upon the occurrence of such breach. Licensee understands and agrees that it is responsible for ensuring compliance with this Agreement by its employees, affiliates, independent contractors and other representatives, as applicable, and that any breach of or failure to comply with this Agreement by the employees, affiliates, independent contractors and other representatives of Licensee shall be deemed a breach of this Agreement by such party. 7.3. Events of Default. The occurrence of any of the following shall constitute a breach of this Agreement for purposes of Section 7.2: 7.3.1 The failure of Licensee to perform its obligations under this Agreement; 7.3.2 The breach, inaccuracy or non-conformity by Licensee of any representation or warranty made by such party; 7.3.3 Licensee violates any terms or restrictions of the licenses granted hereunder; 7.3.4 Licensee fails to pay all or any portion of the sums due hereunder within 10 days of notice of such non-payment; and 7.3.5 The filing by or against Licensee of a proceeding under any bankruptcy or similar law, unless such proceeding is dismissed within sixty (60) days from the date of filing; the making by Licensee of any assignment for the benefit of creditors; the filing by or against Licensee of a proceeding for dissolution or liquidation, unless such proceeding is dismissed within ninety (90) days from the date of filing; the appointment of a receiver, trustee or custodian for all or part of the assets of Licensee, unless such appointment or application is revoked or dismissed within sixty (60) days from the date thereof; the attempt by Licensee to make any adjustment, settlement or extension of its debts with its creditors generally; the insolvency of Licensee; the filing or recording of a notice of lien or the issuance or the obtaining of a levy of execution upon or against a material portion of the assets of Licensee, unless such lien or levy of execution is dissolved within ninety (90) days from the date thereof. 7.4. Consequences of Termination. Upon termination of this Agreement for any reason: 7.4.1 Licensee shall immediately pay to Licensor any sums payable hereunder and accrued prior to such termination; 7.4.2 Licensee shall immediately discontinue use of, and return to Licensor, any materials using or incorporating the Licensed Modules or documentation relating thereto or any of Licensor’s Intellectual Property Rights; 7.4.3 The licenses and all rights granted herein and License Period(s) shall expire, and Licensee shall immediately destroy or permanently delete all copies of the Licensed Modules and cease using such Licensed Modules for any purpose. An officer of Licensee shall, upon completion by Licensee of such destruction, certify in writing to Licensor that Licensee has in fact fulfilled its obligations pursuant to this Section. Licensor shall, at its sole option and expense, have the right to inspect the Licensee’s premises during Licensee’s normal business hours to ascertain Licensee’s compliance with this Section. 8. Taxes. In addition to all other amounts due to Licensor hereunder, Licensee shall pay to or reimburse Licensor for all federal, national, state, local, or other taxes (exclusive of income, business privilege, or similar tax) including, but not limited to, sales, use, lease, or similar assessments, based on charges payable, the Licensed Modules’ use, or any services performed hereunder. 9. General Provisions. 9.1. Export Control. Licensee shall not export or authorize the export of any of the CineCert Software, Licensed Modules or any other product, technology, or information (including, but not limited to, Confidential Information) that Licensee licenses or obtains under this Agreement, or any copy or derivative thereof, whether or not incorporated into the Licensee Internal Systems, without Licensor’s written consent. 9.2. No Joint Venture. Nothing contained in this Agreement shall be construed as creating a joint venture or partnership relationship among the parties hereto nor shall any party have the right, power or authority to create any obligation or duty, express or implied, on behalf of any other party. 9.3. Assignment. Except in connection with the merger, acquisition or sale of all or substantially all of such party’s assets or equity, Licensee shall not assign any of its rights, nor delegate any of its duties hereunder to another person or legal entity without the prior written consent of Licensor, which consent may be withheld for any reason. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective trustees, successors, permitted assigns, and legal representatives. 9.4. Non-Waiver. A failure of any party hereto to exercise any right given to it hereunder, or to insist upon strict compliance by another party of any obligation hereunder, shall not constitute a waiver of the first party’s right to exercise such a right, or to exact compliance with the terms hereof. Moreover, waiver by any party of a particular default by another party shall not be deemed a continuing waiver so as to impair the aggrieved party’s rights in respect to any subsequent default of the same or a different nature. 9.5. Survival. Upon the termination of this Agreement for any reason, the following Sections shall remain in full force and effect: Sections 2.4, 4.3, 5, 6.2, 6.3, 7.4 and 9 and any of Licensee’s payment obligations arising hereunder. 9.6. Notices. All notices, requests, instructions or other documents to be delivered or given under this Agreement shall be in writing and will be deemed given (i) upon receipt if sent via registered or certified mail, return receipt requested, in the U.S. mail, postage prepaid, or (ii) when delivered, if delivered via electronic mail to an address previously provided by the recipient, or (iii) when delivered, if delivered personally to the intended recipient, or (iv) one business day following delivery to a reputable national courier service for overnight delivery, and shall be addressed to the parties as set forth below or to such other addresses as the parties may designate in writing from time to time. If to Licensor: CineCert Inc. 2840 N. Lima Street, Suite 110A Burbank, CA 91504 Attn: CEO Email: legal@cinecert.com If to Licensee: Information provided by Licensee 9.7. Dispute Resolution. In the event of any dispute based on, related to or arising out of this Agreement, the parties unconditionally and irrevocably agree that the dispute will be resolved by arbitration (and accordingly hereby consent to personal jurisdiction over them) in the County of Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs. 9.8. Choice of Law. This Agreement will be construed according to the substantive law, but not the choice of law rules, of the State of California and of applicable federal law of the United States. Subject to Section 9.7, if any dispute arises under this Agreement, the venue for such dispute will be in the California Superior Courts and the Federal District Court for the Southern District of California. 9.9. Entire Agreement. This Agreement contains the full understanding of the parties and supersedes all prior agreements and understandings, written or oral, between the parties with respect to the subject matter hereof; and there are no representations, warranties, agreements or understandings other than those expressly contained herein. No alteration, modification, variation or waiver of this Agreement, or any of the provisions hereof shall be effective unless executed by both parties in writing. All exhibits attached hereto and referred to herein are hereby incorporated by reference and made a part hereof. EXHIBIT A-1 ADDITIONAL TERMS MaUI MODULES 1. The term “Licensed Modules” shall include the following modules, in object code only, of the CineCert Software: (a) Service Oriented Architecture (SOA) Processing Node; (b) DCP Management Library; (c) D-Cinema command-line tools; (d) Image Processing Modules (Kii); and (e) the License Manager (all such modules, collectively, the “MaUI Modules”). 2. The number of instances of the MaUI Modules licensed to Licensee that may be used simultaneously is one (1). 3. The “Hosting Environment” for each instance of the MaUI Modules shall be defined as a single Workstation, which is incorporated into the Licensee Internal Systems, on which such instance may be installed. 4. License Period. The License Period for the MaUI Modules shall begin on the Effective Date and end on the one year anniversary of the Effective Date (the “Subscription Renewal Date”) and, subject to the terms hereof, may be extended on an annual basis for so long as the Annual Subscription Fee (defined below) has been paid. 5. The “Annual Subscription Fee” for each instance of the MaUI Modules shall be, for the first year of the Term, the amount set forth on www.cinecert.com as the purchase price of the license, and thereafter shall be designated by Licensor in accordance with its standard fee schedule. The Annual Subscription Fee shall be payable in advance. 6. Additional License Limitation. The MaUI Modules shall be used solely for the purpose of creating and manipulating digital cinema files and other data necessary thereto. IN WITNESS WHEREOF, you have caused this Agreement and Exhibit A-1 to be duly executed as of the date referred to above by clicking the ‘accept’ button, subject to Licensor’s confirmation of acceptance. [simpay id=""]
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