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SOFTWARE
LICENSE AND
SERVICES AGREEMENT
THIS
SOFTWARE LICENSE AND SERVICES AGREEMENT (this "Agreement") is made and entered
into this 8th
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
6th
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.
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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.
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