SOFTWARE LICENSE
AND SERVICES AGREEMENT
THIS
SOFTWARE LICENSE AND SERVICES AGREEMENT (this "Agreement") is
made and entered into this 8
th day
of June, 2007 (the "Effective Date") by and between
TRANSPARENSEE SYSTEMS, INC .
,
a Delaware corporation having its principal place of business at
225 East 6
th Street,
#5H, New York, New York 10003 ("Licensor"), and
DIGITALFX INTERNATIONAL, INC .,
a Florida corporation having its principal place of business at
3035 East Patrick Lane, Suite #9, Las Vegas, Nevada 89120
("Licensee").
RECITALS
A.
Licensor is the owner of, or has acquired rights to, the
Software and Documentation (as defined below).
B.
Licensor desires to grant to Licensee and Licensee desires to
obtain from Licensor a nonexclusive license to use the
Software and Documentation solely in accordance with the terms
and on the conditions set forth in this
Agreement.
C.
Licensor desires to provide to Licensee the Services (as
defined below), and Licensee desires to obtain from Licensor
such Services.
D.
Licensee desires to resell the technology products offered by
Licensor to end users under a private label, in accordance
with the terms and conditions set forth herein.
NOW,
THEREFORE, the parties hereto agree as follows:
1.
DEFINITIONS.
1.1
"Documentation" shall mean all manuals, user documentation,
and other related materials pertaining to the Software which
are furnished to Licensee by Licensor in connection with the
Software.
1.2
"Integration Services" shall mean the technical services
required to integrate the Software with the Licensee’s
proprietary software to enable Licensee to run the Software on
Licensee’s primary systems of designated equipment, to
showcase the Software on Licensee’s web site, and to
resell products developed from the Software as provided
herein.
1.3
"Software" shall mean the computer programs in machine
readable object code form listed in Exhibit A attached hereto
and any subsequent error corrections or updates supplied to
Licensee by Licensor pursuant to this Agreement. Exhibit "A"
may be amended from time to time by the parties in
writing.
2.
GRANT OF RIGHTS; PURCHASE OF SERVICES.
2.1
The License granted for Software under this Agreement
authorizes Licensee on a nonexclusive basis to use the
Software for the license term set forth on Exhibit A. In
addition, Licensor hereby grants to Licensee the right to
resell the products derived from the Software pursuant to the
terms and conditions set forth in the Reseller Agreement
between the Parties hereto attached to this Agreement as
Exhibit B (the "Reseller Agreement").
2.2
Licensee
shall purchase from Licensor, and Licensor shall sell to
Licensee, the Integration Services as set forth on Exhibit A.
Licensee will pay Licensor the fee for the Integration
Services set forth on Exhibit A.
3.
DELIVERY OF SOFTWARE AND DOCUMENTATION.
Licensor
shall deliver to Licensee a master copy of the Software
licensed hereunder in object code form, suitable for
reproduction, in electronic files only.
Licensor
shall also deliver copies of Documentation in electronic
files.
4.
MODIFICATIONS.
4.1
Error Corrections and Updates. Licensor will provide Licensee,
at no cost to Licensee, with error corrections, bug fixes,
patches or other updates to the Software licensed hereunder in
object code form to the extent available in accordance with
Licensee's release schedule for a period of one (1) year from
the date of shipment.
4.2
Other Modifications. Licensee may, from time to time, request
that Licensor incorporate certain features, enhancements or
modifications into the Software, on terms to be mutually
agreed.
4.3
Title to Modifications. All such error corrections, bug fixes,
patches, updates or other modifications shall be the sole
property of Licensor.
5.
COPIES.
5.1
Printed Matter. Except as specifically set forth herein, no
Software or Documentation which is provided by Licensee
pursuant to this Agreement in human readable form, such as
written or printed documents, shall be copied in whole or in
part by Licensee without Licensor's prior written agreement.
Additional copies of printed materials may be obtained from
Licensor at the charges then in effect.
5.2
Machine Readable Matter. Except as specifically set forth
herein or in the Reseller Agreement, any Software provided in
machine readable form may not be copied by Licensee in whole
or in part, except for Licensee's backup or archive purposes.
Licensee agrees to maintain appropriate records of the number
and location of all copies of the Software and make such
records available upon Licensor's request. Licensee further
agrees to reproduce all copyright and other proprietary
notices on all copies of the Software in the same form and
manner that such copyright and other proprietary notices are
originally included on the Software.
6.
LICENSE FEES.
In
consideration of the license rights granted in Article 2
above, Licensee shall pay the License Fees or other
consideration for the Software and Documentation as set forth
on Exhibit A attached hereto.
7.
PROTECTION OF SOFTWARE.
7.1
Proprietary Notices. Licensee agrees to respect and not to
remove, obliterate, or cancel from view any copyright,
trademark, confidentiality or other proprietary notice, mark,
or legend appearing on any of the Software or output generated
by the Software, and to reproduce and include same on each
copy of the Software.
7.2
No Reverse Engineering. Licensee agrees not to modify, reverse
engineer, disassemble, or decompile the Software, or any
portion thereof.
7.3
Ownership. Licensee further acknowledges that all copies of
the Software in any form provided by Licensor or made by
Licensor are the sole property of Licensor and/or its
suppliers. Licensee shall not have any right, title, or
interest to any such Software or copies thereof except as
provided in this Agreement, and further shall secure and
protect all Software and Documentation consistent with
maintenance of Licensor’s proprietary rights
therein.
8.
CONFIDENTIALITY.
8.1
Acknowledgement. Licensee hereby acknowledges and agrees that
the Software and Documentation constitute and contain valuable
proprietary products and trade secrets of Licensor and/or its
suppliers, embodying substantial creative efforts and
confidential information, ideas, and expressions. Accordingly,
Licensee agrees to treat (and take precautions to ensure that
its employees treat) the Software and Documentation as
confidential in accordance with the confidentiality
requirements and conditions set forth below.
8.2
Maintenance of Confidential Information. Each party agrees to
keep confidential all confidential information disclosed to it
by the other party in accordance herewith (the other
party’s "Confidential Information"), and to protect the
confidentiality thereof in the same manner it protects the
confidentiality of similar information and data of its own (at
all times exercising at least a reasonable degree of care in
the protection of the Confidential Information); provided,
however, that neither party shall have any such obligation
with respect to use or disclosure to others not parties to
this Agreement of such Confidential Information as can be
established to: (a) have been known publicly; (b) have been
known generally in the industry before communication by the
disclosing party to the recipient; (c) have become know
publicly, without fault on the part of the recipient,
subsequent to disclosure by the disclosing party; (d) have
been known otherwise by the recipient before communication by
the disclosing party; or (e) have been received by the
recipient without any obligation of confidentiality from a
source (other than the disclosing party) lawfully having
possession of such information.
8.3
Injunctive Relief. Each party hereto acknowledges that the
unauthorized use, transfer or disclosure of the other
party’s Confidential Information will (i) substantially
diminish the value to the disclosing party of the trade
secrets and other proprietary interests that are or relate to
the subject of this Agreement; (ii) render the disclosing
party's remedy at law for such unauthorized use, disclosure or
transfer inadequate; and (iii) cause irreparable injury in a
short period of time. If either party hereto breaches any of
its obligations with respect to the use or confidentiality of
the other party’s Confidential Information, the
disclosing party shall be entitled to equitable relief to
protect its interests therein, including, but not limited to,
preliminary and permanent injunctive relief.
8.4
Survival. Each party's obligations under this Article 8 will
survive the termination of this Agreement or of any license
granted under this Agreement for whatever reason.
9.
WARRANTIES; SUPERIOR RIGHTS.
9.1
Ownership. Licensor represents that it is the owner of the
entire right, title, and interest in and to Software,
an
