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Cinsay Platform License Agreement

License Agreement

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BMC CAPITAL, INC. | BMC Capital, Inc | Cinsay, Inc

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Governing Law: Texas     Date: 8/13/2012

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This Platform License Agreement is made the 16 th day of August , 2010 ("Effective Date") by and between Cinsay, Inc. ("Cinsay"), a Nevada corporation with its principal offices at 1750 Regal Row, Suite 120, Dallas, Texas 75235 and BMC Capital, Inc. ("Licensee"), a Nevada corporation with its principal place of business at 8105 Irvine Center Drive, Irvine, CA 92618. Both   parties maybe individually referred to as "the Party" and will be jointly referred to as "the Parties".


WHEREAS, Licensee desires to license the Cinsay Platform (as defined below) and retain Cinsay to customize specific elements of the licensed Cinsay Platform (the "Customized Platform" as defined below) for embedding within the Licensee-branded website (the "Licensee Website") as described in the Statement of Work (SOW) in Exhibit A.


WHEREAS, Cinsay desires to undertake the customization of the Cinsay Platform and agrees to do so under the terms and conditions set forth in this Agreement;


NOW, THEREFORE, for good and valuable consideration, the Parties agree as follows:







"Content" means any content and/or any media materials and/or assets published by Licensee on the Licensee Website or otherwise pushed to the Custom Platform. This can include but is not limited to original content from Licensee or User Generated Content (UGC), including but not limited to artwork, photos, images, text, audio, video, logos and marks, layouts, marketing materials, ads, downloadable documents, feeds, branded content, as well as any combination of other media and/or the above, or any source Licensee may use for content to be published/displayed within the Custom Platform or the Licensee Website;



"Cinsay CMS" means Cinsay's rich media application consisting of a graphical user interface allowing authenticated users to manage and assign photos, thumbnails, videos, metadata, product links and ad tags to video assets, as expressly set forth in Exhibit A,




"Cinsay Ad Servicing Component" means the granular ad tag manager component of the Cinsay CMS.




"Cinsay Syndicated Player" means Cinsay's high-definition enabled viral streaming media player with media list, social networking and direct login, share features, inline-comment capability, bandwidth selection and either integrated or third-party e-commerce capability, as expressly set forth in Exhibit A. 1.5. "Cinsay Platform" means the Cinsay CMS, Cinsay Syndicated Player and Cinsay Ad Servicing Component licensed under this Agreement.




"Custom Platform" means the Cinsay Platform as customized to Licensee's specifications as set forth in the SOW and licensed to Licensee under this Agreement.




"Intellectual Property Rights" means all rights, title, and interest in and to: (1) all rights of invention and all U.S. or foreign patents or any division, continuation, continuation in part, reissue, or extension thereof and any applications (including provisional applications) therefore; (ii) all trade secrets and trade secret rights arising under the common law, state law, federal law and/or laws of foreign countries; (iii) all copyrights, and all other literary property and author rights, whether or not copyrightable, and any registrations and applications for registration therefore; (iv) all personal, publicity or privacy rights, (v) all trademark, service mark, slogans, trade name, logo, trade dress, branding, and domain name rights, and any registrations and applications for registration therefore, and (vi) any other protectable intellectual and/or intangible proprietary rights anywhere in the world.




"Updates" means any bug fixes, patches or other revisions or changes to or modifications of the Cinsay Platform generally indicated by a change in the build number of the version (e.g. a change from version 2.1 to 2.2) and that are made generally available to Cinsay's customers at no additional charge as a part of its routine maintenance and support services.




"Upgrades" means any new version releases of major features in the Cinsay Platform generally indicated by a change in the version number (e.g. a change from version 2.0 to 3.0) which would typically include some level of new functionality or Features that are made generally available to Cinsay's customers at additional charge.




"User" means those individuals or persons who use and/or interact with the Cinsay Platform through the Licensee Website.



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General. Subject to the terms and conditions of this Agreement, Cinsay grants to Licensee a non-exclusive license (without right to sublicense) to use the Custom Platform solely as embedded into the Licensee Website. Except for the limited rights licensed under this Agreement, no other rights are granted to Licensee and remain expressly reserved in Cinsay.



Statement Of Work. Cinsay has prepared a SOW for the Customized Platform, which includes the following:




the specifications for the Customized Platform as set forth in Exhibit A;




a listing of all items to be delivered to Licensee (the "Deliverables," or, collectively, the "Custom Platform" defined above);




a schedule containing an estimated delivery timeframe for each Deliverable; and




a schedule setting forth the amount and timing of Cinsay's compensation, if different from Par. 3.1 below.



Cinsay shall deliver the SOW to Licensee within ten (10) days of this Agreement. Licensee shall thereafter have ten (10) days to review and comment upon the SOW. Upon approval of the SOW by Licensee, it will be attached as Exhibit "A" and will become a part of this Agreement. Cinsay shall immediately commence development in conformity to the SOW, upon signing of this Agreement by both parties and receipt of Payments from Licensee as set forth in this Agreement.




Change in Scope. If at any time following acceptance of the SOW, Licensee should desire to change the specifications or other elements of the SOW, Licensee shall submit to Cinsay a written proposal specifying such changes. Cinsay shall evaluate each such proposal and shall submit to Licensee a written response within ten (10) working days following receipt thereof. Cinsay's response shall include a statement of the availability of personnel and resources, as well as the effect the proposed changes will have on the price, delivery dates or warranty provisions of this Agreement. Any changes to the SOW shall be evidenced by a "SOW Amendment." The SOW Amendment shall be signed by authorized representatives of Cinsay and Licensee, and shall be deemed a part of this Agreement. If Cinsay does not approve the SOW Amendment, Cinsay shall not be obligated to perform any additional services hereunder.







The total contract price to be paid as follows:





Initial Setup Fee Customization Fees

Upon Execution

No initial fee.

Merchandise Revenue Sharing


15% of retail selling price, less

sales                      taxes,returns and

chargebacks (Net Revenues).

Monthly Services Fee



Ad Production Fees

As incurred

Variable — See Section 5

Ad Servicing Fees


Variable — See Section 6

Maintenance & Support;

Hosting: Fees


Variable — See Section 7



The full amount of the Initial Setup/Customization fee is payable at the signing of this Agreement, unless otherwise provided for in the SOW/Exhibit A. Payment for monthly service fees will start on the 1st day of the month, that is at least 30 working days after, but no more than 40 working days after, the signing date of this Agreement, unless otherwise provided in the SOW/Exhibit A.



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Non-Refundable . All set-up and customization fees as well as all monthly fees are non-refundable.




Income Taxes. Parties are separately and individually responsible for any income taxes or similar taxes based on respective net income and revenue from Custom Platform or otherwise resulting from this Agreement.




U.S. Dollars. All fees quoted and payments made herein shall be in U.S. Dollars.



Payment Processing. Cinsay will administer the payment processing function of the Cinsay Platform and will disburse the Net Revenues, less Cinsay's Revenue Sharing amounts, to Licensee on a monthly basis via the Automated Clearing House (ACH) system.



Ad Production Fees. Should Licensee choose to utilize Cinsay to produce original advertising video content to promote Licensee's products or web-site, Licensee agrees to pay Cinsay $2,000.00 for each advertising episode (up to 120 seconds in length) and additionally all out of pocket costs, including but not limited to stock footage, talent and travel costs, plus 10%,.



Ad Servicing



Ad Servicing Component. Cinsay will license its Ad Servicing Component to facilitate advertising operations services with its own assets through the Cinsay Platform. No ad placement or CPM shall be provided by Cinsay whatsoever under the Ad Servicing Component, which shall be the sole responsibility of Licensee using License's own assets.



Maintenance & Support; Hosting: Fees



General. Subject to Licensee's timely payment of all Monthly Service Fees, Licensee will receive Updates and Upgrades to the Cinsay Platform as part of Cinsay's routine maintenance schedule as set forth in Exhibit B.




Hosting Services. The Cinsay Platform is separately hosted by Cinsay, components of which are licensed under this Agreement as part of the Custom Platform and embedded into the designated Licensee Website. The Custom Platform shall be subject to the hosting services set forth in Exhibit B.



Fees . Cinsay will provide bandwidth as part of the Cinsay Platform for Licensee's placement of ad content inventory through the Cinsay Platform, as well as storage for cached content provided through the Cinsay Platform. Licensee shall pay the actual costs for its usage, calculated on a per gigabit basis, plus a ten percent (10%) administrative charge. Monthly Service Fees shall become due beginning on the 1 si day of the month following the Effective Date of this Agreement, and shall be paid within 30 days of the date invoiced by Cinsay



Responsibility for Content



General. Licensee is solely responsible for the creation, acquisition, delivery, input, editing, and ongoing upkeep and maintenance of any and all content required for the Custom Platform. Cinsay is responsible only for providing the Custom Platform and the initial training of Licensee for the input of content. if Licensee content includes "feeds" from outside sources, Cinsay will configure the Custom Platform to receive said feed(s) as per the SOW. Any additional feeds or content sources that require Cinsay "work" will either need to be accomplished during the monthly paid support time, or, will need to be handled on an hourly or project basis, to be separately agreed upon between the parties.




Acceptable Content. Notwithstanding anything contained herein to the contrary, in no event shall Cinsay be obligated to publish the Content if it is deemed un-satisfactory in the sole judgment of Cinsay, including without limitation that the Content is not appropriate for the Cinsay Platform, is deficient, violates any law or any rights of any third party, is provided in breach of this Agreement or is unlawful, harassing, vulgar, harmful, abusive, obscene, pornographic, is spam, does further phishing, spoofing or similar unlawful acts, indecent, threatening, libelous, slanderous, hateful, discriminatory, defamatory, false, misleading or otherwise objectionable. Cinsay shall have the right to cease displaying and distributing any Content in the Cinsay Platform in Cinsay's sole and exclusive discretion. Cinsay is not and shall not be responsible for the Content and is not responsible for verification of such Content. Any verification made by, or on behalf of Cinsay, or any failure by Cinsay to verify, shall not constitute a defense for Licensee in any action based upon a breach of any of the warranties made by Licensee under this Agreement. Licensee is solely responsible for all Content including derivatives of such Content. No revisions made by Licensee and or Cinsay to the Content shall be deemed to affect or limit Licensee's warranties or indemnity made hereunder, which shall also apply to the revised and/or derivative Content.



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Cinsay cannot be held in default of this Agreement in case of delays on the part of the Licensee (i.e. Licensee does not provide required deliVerables within the scheduled timeframes of the SOW to Cinsay). In such case, Cinsay will provide the Licensee with written notice (email will suffice) that such a delay has occurred. Work on the Custom Platform shall not resume until the reason for the delay has been resolved by the Licensee and notice of its resolution has been provided to Cinsay. Delays on the part of Licensee will not change the payment schedule due dates.



Ownership; Intellectual Property Rights




General. Cinsay retains all rights, title and interest in and to the Cinsay Platform, including but not limited to any and all programming, technology, platform-specific content, look-and-feel, styling and characteristics of the Cinsay Platform, and any and all Intellectual Property Rights thereto. Further, Cinsay shall retain all rights, title and interest in and to any accompanying written materials for the Cinsay Platform (the "Documentation"). Licensee retains all rights, title and interest in and to its owned Content, and all Intellectual Property Rights thereto. Licensee retains all rights to the finished and unique look-and­feel, but only insofar as the finished look-and-feel are unique and separate from that of Cinsay's core Cinsay Platform, sites and properties. in simple terms, Licensee retains its rights to "Content" that it owns, but not to the technology or framework provided by Cinsay. Specifically, Licensee does not own or retain any interest or rights or have any survivable license to software, programming, widgets, applications, frameworks or other parts or aspects of the Cinsay Platform and technologies, unless such is specifically and under separate executed agreement defined and agreed-upon by the Parties. Except as otherwise expressly set forth in the Statement of Work or SOW Amendment, Cinsay also retains all Intellectual Property Rights associated with any Cinsay-provided art, images, photographs, video, audio, music and text, layouts, creative, appearance, and styling, and "applets".



Third-Party Content. During the Term of this Agreement, Licensee may acquire non-exclusive rights to use User Generated Content (UGC) or other third-party content published by users of the Custom Platform as embedded in the Licensee Website. Unless separately and individually agreed-to between Licensee and such User content author/contributor, Licensee does not retain rights to such content after termination of this Agreement.




Restrictions. Unless otherwise permitted under this agreement or by law, Licensee shall not itself and shall not permit any employee, contractor, consultant, or other third party to:



reproduce, copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert or apply any  process to the Cinsay Platform Software or Documentation in order to derive for any purpose, the source code or source listings for the Software or any trade secret information or process embodied in the Software;




transfer, sell, assign, sublicense, rent, lease, convey or distribute the Cinsay Platform Software or Documentation to any third party;



modify, merge or compile all or any portion of the object code of the Cinsay Platform Software into any system other than the designated Licensee Website;




license the Cinsay Platform Software or Documentation or any methods, data structures, or other proprietary technology therein to any third party;



remove any identification, copyright notices, or other proprietary notices or restrictions from the Cinsay Platform Software or Documentation; or




reproduce the Cinsay Platform Documentation other than for internal business operations.



Representations and Warranties




Rights Clearance. Licensee will not publish to its Custom Platform or provide to Cinsay any Content, including UGC or other third-party content, for which the provision, use, modification, reproduction, hosting, distribution, performance and transmission of will violate any law or any Intellectual Property Rights of any third party. Licensee warrants and represents and unconditionally guarantees that any and all such Content or materials published into the Custom Platform and/or in the Cinsay Platform, are owned or appropriately licensed by Licensee and that the published or provided content does not violate the rights, digital rights management, copyrights, marks, registrations, permissions and consents of any and all relevant third parties. Licensee will hold harmless, protect, and defend Cinsay and its employees and/or agents from any claim or suit arising from the use of such elements provided by Licensee. If such Content or materials published or provided by Licensee require permission from others, including but not limited to: any writings, drawings, photographs, trademarks, trade names, screens, on-line material, or other material in and/or on the Content for publication of the Content or for the exercise or disposition of any of the rights granted to Cinsay hereunder, then Licensee shall obtain proper and complete written permission from the owner of said materials, at Licensee sole cost and expense, prior to publication of said materials to its Custom Platform or delivery to Cinsay, Licensee shall deliver copies of any such required written permissions to Cinsay.



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No Third Party Rights Obligations. Licensee represents and warrants that it has all necessary rights to grant the rights and licenses to Cinsay herein to publish Licensee's Content in the Cinsay Network, including, but not limited to, the publication of content provided by or licensed by Licensee, without obligating Cinsay to make any payments to any third party, including, without limitation, any record labels, collecting rights society's and the like. Without limiting the generality of the forgoing representation and warranty, if Cinsay is required to pay any fees, including, without limitation, license fees, master use license fees, synchronization license fees, and/or other collecting rights society's fees, Licensee shall reimburse Cinsay within five (5) business days for such fees, upon receipt of an invoice and documentation of the payment of such fees.




Material Conformity. Cinsay warrants that the Custom Platform shall perform materially in accordance with the SOW and Documentation during the term of this agreement. For any breach of such warranty, the remedy shall be as provided in the Termination section below.




Warranty of Title. Cinsay represents and warrants that Cinsay owns and has the complete right to license, convey title without any encumbrances to the Cinsay Platform and Deliverables covered by this Agreement. Cinsay further represents and warrants that Cinsay has obtained all required registrations, permissions and consents from all third parties necessary to deliver the Custom Platform and Deliverables. Cinsay shall not grant any rights or licenses to any intellectual property or technology that would conflict with Cinsay's obligations or Cinsay's rights under this Agreement.




Non-Infringement. To the best of Cinsay's knowledge and belief, the Cinsay Platform does not infringement upon the Intellectual Property Rights of any third party. To the extent Cinsay becomes aware of any such infringement, it shall use its commercially reasonable efforts to develop a work-around so as to make the Cinsay Platform non-infringing, or otherwise obtain an appropriate license and/or consent to use the Cinsay Platform.




No Other Warranties. Except for the representations and warranties set forth herein, The Cinsay Platform is provided "AS IS" and "WHERE IS" and Cinsay expressly disclaims all warranties, express and implied regarding the Cinsay Platform, any Deliverables and Documentation. Except for the representations and warranties set forth herein, each party hereby disclaims any and all representations and warranties, whether express or implied, including without limitation all warranties of merchantability and fitness for a particular purpose.







Cinsay. Cinsay shall indemnify and hold Licensee and any of its officers, directors, employees, agents and affiliates harmless against any and all claims, liabilities, costs, damages, fees, fines and expenses (including reasonable attorney fees) resulting from, arising out of or related to any breach or alleged breach of warranty under this Agreement or any claim or suit alleging infringement by the Cinsay Platform or Deliverables of any U.S. patent, copyright or trademark rights, or misappropriation of trade secrets, of any third party. Licensee shall promptly notify Cinsay in writing of any third party claim or suit and Cinsay shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. Licensee may participate at its own expense in the defense of any such action at its sole discretion.



Licensee. Licensee shall indemnify and hold Cinsay and its directors, officers, agents, employees, agents and affiliates harmless from and against any and all claims, liabilities, costs, damages, fees and expenses (including reasonable attorney fees) resulting from, arising out of or related to any breach or alleged breach of the warranties by Licensee set forth in this agreement, or any third party claim that the Content infringes, misappropriates or violates any Intellectual Property Right. Cinsay shall promptly notify Licensee in writing of any third party claim or suit and Licensee shall have sole control of the defense of any such action and all negotiations for its settlement or compromise. Cinsay may participate at its own expense in the defense of any such action at its sole discretion.



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Limitation of Liability. In no event shall either party's aggregate liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability, exceed the total amount paid by Licensee hereunder or, with respect to any single incident, the lesser of $100,000 or the a

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