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AGLAIA SOFTWARE, INC. LICENSE AGREEMENT FOR FLIP EFFECT SOFTWARE


THIS IS A LEGAL AGREEMENT BETWEEN YOU, THE EMPLOYEE, THE INDIVIDUAL, OR THE ENTITY IDENTIFIED AS “CUSTOMER” (AS DEFINED HEREINAFTER) AND FLIPEFFECT.COM (FE). THIS AGREEMENT STATES THE TERMS AND CONDITIONS UNDER WHICH CUSTOMER MAY USE THE FLIP EFFECT SOFTWARE. BY CLICKING ON THE ACCEPT BUTTON, INSTALLING, HAVING SOFTWARE INSTALLED ON CUSTOMER’S BEHALF, COPYING, HAVING FLIP EFFECT SOFTWARE COPIED ON CUSTOMER’S BEHALF, USING OR HAVING SOFTWARE USED ON CUSTOMER’S BEHALF, CUSTOMER INDICATES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT AND AGREES TO BE BOUND BY THE TERMS SET FORTH IN THIS AGREEMENT. IF “FLIP EFFECT SOFTWARE” IS INSTALLED, COPIED OR USED ON BEHALF OF CUSTOMER, THE TERMS SET FORTH IN THIS AGREEMENT SHALL APPLY TO CUSTOMER AS WELL AS TO THE INDIVIDUAL OR ENTITY INSTALLING, COPYING OR USING “FLIP EFFECT SOFTWARE ON BEHALF OF CUSTOMER. THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE EARLIER OF THE DATE FLIP EFFECT SOFTWARE IS INSTALLED OR USED. “FLIP EFFECT SOFTWARE” SHALL BE DEEMED ACCEPTED BY CUSTOMER TEN (10) DAYS AFTER THE DATE “FLIP EFFECT SOFTWARE” IS DELIVERED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, DO NOT INSTALL OR USE “FLIP EFFECT SOFTWARE” AND RETURN “FLIP EFFECT SOFTWARE” TO FE WITHIN TEN (10) DAYS OF THE DATE “FLIP EFFECT SOFTWARE” IS DELIVERED TO CUSTOMER. ANY REFUNDS (IF APPLICABLE) SHALL BE SUBJECT TO FLIPEFFECT.COM (FE) STANDARD REFUND POLICY IN EFFECT, LESS ANY RESTOCKING FEES AND OTHER APPLICABLE FEES.



SOFTWARE AGREEMENT


This FLIP EFFECT SOFTWARE Agreement (“Agreement”) is made as of the Effective Date by and between FLIPEFFECT.COM (“FE”), a corporation with offices located at 4768 PARK GRANADA SUITE 108, CALABASAS CA 91302 and the individual or entity identified on the Sales Agreement as customer (“Customer”).


WITNESSETH:


WHEREAS, owns that certain Flip Effect Software application entitled Flip Effect Software; and

WHEREAS, Customer has had an opportunity to review and approve the functions and utilities of Flip Effect Software and is familiar with the use and operation of Flip Effect Software; and

WHEREAS, Customer has independently determined that Flip Effect Software will meet the needs of Customer for a digital publishing software capable of creating dynamic, digital publications for approved material for company use. Flip Effect Software application at the Facility (as defined below); and

WHEREAS, Customer desires to receive a license to use Flip Effect Software.


NOW THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, FE and Customer hereby agree as follows:


ARTICLE I: RECITALS AND DEFINITIONS


Section 1.01 -- Recitals: The above recitals and identification of parties are true and correct.


Section 1.02 -- Definitions: The following definitions shall apply:

  • Access: The term “Access” and variants thereof shall mean to store data in, retrieve data from or otherwise approach or make use of (directly or indirectly) through electronic means or otherwise.
  • Flip Effect Software: The term “Flip Effect Software” shall mean the object code for that certain Flip Effect Software application, including the Documentation, as provided by FE to Customer hereunder, including Updates.
  • Associate: The term “Associate” shall mean an employee of FE or an independent contractor hired by FE.
  • Authorized Person: The term “Authorized Person” shall mean Customer or employees of Customer who agree in writing to maintain the confidentiality of Confidential Information and individuals or organizations who are authorized in writing by FE to receive Confidential Information and who agree in writing to maintain the confidentiality of such Confidential Information.
  • Cancellation Notice: The term “Cancellation Notice” shall mean that written notice sent by FE to Customer seeking to cancel this Agreement because of breach of this Agreement by Customer.
  • Confidential Information: The term “Confidential Information” shall mean all information concerning this Agreement, Flip Effect Software, and the business and technical plans of FE which is disclosed by FE to Customer or learned by Customer.
  • Defects: The term “Defects” shall mean programming errors which substantially impair the performance, utility and functionality of Flip Effect Software, as represented in the Documentation.
  • Defect Notice: The term “Defect Notice” shall mean that certain written notice from Customer to FE identifying Defects.
  • Delivery Date: The term “Delivery Date” shall mean the date Flip Effect Software is delivered to Customer (as applicable).
  • Deposit: The term “Deposit” shall mean a sum of money equal to fifty percent (50%) of the Price.
  • Documentation: The term “Documentation” shall mean the Flip Effect Software user guide (in electronic or printed format) as provided to Customer on the Delivery Date.
  • Documentation Fee: The term “Documentation Fee” shall mean the sum of money paid by Customer to FE for additional copies of Documentation requested by Customer pursuant to Section 3.02. determined in accordance with FE then standard rates as of the date Customer’s request for additional copies of the Documentation is received by FE.
  • Effective Date: The term “Effective Date” shall mean the earlier of the date that the Sales Agreement is executed by FE and Customer or the date Flip Effect Software is installed or used.
  • Event of Bankruptcy: The term “Event of Bankruptcy” shall mean:
    • the filing of a petition under any insolvency or bankruptcy statute seeking the declaration of Customer as insolvent or bankrupt;
    • the filing of any action seeking receivership or reorganization of Customer pursuant to or under any insolvency or bankruptcy statute; or
    • the filing of any involuntary petition against Customer pursuant to any insolvency or bankruptcy statute if such petition shall remain unstayed or undismissed for a period of ten (10) days after filing.
  • Implement: The term “Implement” and variants thereof (including, but not limited to, the terms “implementation”, “implementing” and “implemented”) shall mean to load.
  • Maintenance Services: The term “Maintenance Services” shall mean Defect resolution services concerning Flip Effect Software (excluding the System) as provided by FE to Customer for the prevailing fees and time and material rates published by FE and subject to FE standard maintenance terms.
  • Price: The term “Price” shall mean the total price to be paid by Customer to FE for the System and for licensing Flip Effect Software, as set forth in the Price Schedule.
  • Restatements: The term “Restatements” shall mean Section 757 of the Restatement of Torts, Section 39 of the Restatement (Third) of Unfair Competition, Section 1 of the Uniform Trade Secrets Act, and Section 1839 of Title 18 of the United States Code (18 U.S.C. § 1839).
  • Services: The term “Services” shall mean Maintenance Services and that certain Flip Effect Software installation, training, telephone support, development and consulting services as requested by Customer and approved by FE in writing.
  • Term: The term “Term” shall mean a period of time commencing on the Effective Date and continuing until this Agreement is terminated or canceled under Article IV.
  • Third Party Technology: The term “Third Party Technology” shall mean third party software, computer, hardware, peripherals, components, devices, equipment and technology used in connection with or related to Flip Effect Software.
  • Unauthorized Access: The term “Unauthorized Access” shall mean any access to Flip Effect Software except for the exclusive purpose of converting “print ready” files of approved material to a digital page flipping publication, and training employees of Customer in the use of Flip Effect Software.
  • Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses Flip Effect Software except for:
    • employees of Customer authorized by Customer to access Flip Effect Software and who agrees to maintain the confidentiality of Confidential Information for the exclusive purpose of performing conversion and publishing of print ready files into a digital publication of “Approved Material”, and training employees of Customer in the use of Flip Effect Software and
    • Authorized Persons authorized in writing by FE to access Flip Effect Software.
  • Approved Material: The term “Approved Material” shall mean any material that may be converted into a digital publication that is property of the customer. Any material that is not related to the customer’s business or is given by a third party to the customer for conversion or is converted by the FE software for a fee does NOT fall under the term approved material.
  • Updates: The term “Updates” shall mean the object code for updates, upgrades, new versions, new releases or modifications to Flip Effect Software as generally made available by FE from time to time to FE customers for the applicable fee.
  • Warranty Term: The term “Warranty Term” shall mean a period of time commencing on the Delivery Date and ending on the date which is sixty (60) days thereafter.


ARTICLE II: SOFTWARE


Section 2.01 -- Grant of License: FE hereby grants to Customer a non-exclusive and non-transferable license to use Flip Effect Software and to use the Documentation at the Facility for the License Term, subject to the terms and provisions of this Agreement.


Section 2.02 -- Delivery: Customer hereby acknowledges FE shall deliver Flip Effect Software on the Delivery Date.


Section 2.03 -- Implementation: Customer shall install the Flip Effect Software. Customer shall implement Flip Effect Software on the System, subject to the terms and conditions of this Agreement.


Section 2.04 -- Acceptance: Flip Effect Software shall be deemed accepted by Customer ten (10) days after the Delivery Date unless Defect Notice is received by FE by such tenth day. Upon receiving Defect Notice from Customer, FE shall review the asserted Defect to determine if the Defect is valid. If, in the reasonable professional judgment of FE the asserted Defect is valid, FE shall correct the Defect and resubmit Flip Effect Software for acceptance by Customer. If, in the reasonable professional judgment of FE the asserted Defect is not valid, FE shall submit to Customer a written explanation of the reasons why such asserted Defect is not valid. The written explanation of FE set forth herein shall be deemed accepted by Customer within ten (10) days after receipt by Customer of such written explanation unless FE receives from Customer written notice rejecting such explanation and terminating this Agreement within such ten (10) day period. Upon receipt of Defect Notice from Customer by FE as set forth above, Flip Effect Software shall be deemed accepted by Customer except as to the asserted Defects specified in the Defect Notice.


Section 2.05 -- Risk of Loss: Customer shall assume risk of loss to Flip Effect Software as of the Delivery Date. Customer shall keep Flip Effect Software protected and in good working order, maintained and insured against loss for full replacement value until the date that the Price is paid in full by Customer.


Section 2.06 -- Authorized Use: Customer shall prevent Unauthorized Users from accessing Flip Effect Software. Customer shall prevent Unauthorized Access to Flip Effect Software. Customer shall promptly inform FE of any and all Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users (or suspected Unauthorized Users) of which Customer has knowledge or suspicion. Access to Flip Effect Software using third party products for purposes of manipulating, viewing, disclosing or using the internal structure of Flip Effect Software ™ or for creating a database, data dictionary or data model shall be deemed Unauthorized Access. Use of Flip Effect Software for the purposes of resale, produce or handle content on behalf of daughter- or sister companies, customers, partners, end-users or any other company incorporated under different VAT-numbers than the one submitted by customer, or corporate entities under this VAT. The customer shall not be entitled to grant sublicenses, including to other entities in the same group of companies as the Licensee.


Section 2.07 -- Site Restriction: Customer shall use Flip Effect Software only on the System and only at the Facility.


Section 2.08 -- End Use: Customer hereby represents and warrants that Flip Effect Software is being licensed by Customer for its own use at the Facility and not for rental, leasing, resale, sublicensing, distribution, outsourcing, or offering service bureau services.


Section 2.09 -- Services: Customer may request Services, as approved by FE. All Services shall be subject to the discretion of FE and shall be subject to FE standard service terms and applicable time and material rates.


ARTICLE III: PAYMENT


Section 3.01 -- Price: Customer shall pay the Deposit on the Effective Date. Customer shall pay the difference between the Price and the Deposit on the Delivery Date.


Section 3.02 -- Documentation Fee: Additional copies of the Documentation may be purchased by Customer from FE upon request by Customer and upon payment of the Documentation Fee.


Section 3.03 -- Costs: Customer shall pay all costs incurred by FE in performing this Agreement. Such costs shall include (without limitation) postage, freight, telecommunications, fees charged by third parties, telephone, travel, lodging, per diem, material and reproduction costs.


Section 3.04 -- Taxes: Customer shall pay any and all taxes attributable to this Agreement, to the transactions contemplated hereunder or to the transactions performed by Customer or third parties using Flip Effect Software, including, without limitation, any applicable sales or use taxes. Notwithstanding the foregoing, Customer shall not be responsible for paying any income taxes assessed against FE.


Section 3.05 -- Late Fee: Any amount which is not paid when due shall be increased by a late charge equal to 1% of such unpaid amount for each month (or portion thereof) in which such amount is due and not paid.


Section 3.06 -- Invoicing and Payment: Services shall be performed by FE at the time and material rates of FE prevailing at the time such Services are rendered. FE shall invoice Customer for fees and costs in connection with the Services. Customer shall pay any such invoice in full on the due date thereof or within thirty (30) days of receiving such invoice (whichever is earlier).


ARTICLE IV: TERMINATION


Section 4.01 -- Termination Limitations: This Agreement shall only be terminated or canceled as provided under this Article IV.


Section 4.02 -- Term: This Agreement shall be valid for the Term.


Section 4.03 -- Termination: Customer may terminate this Agreement for convenience upon providing ten (10) days written notice of termination to FE, subject to the terms and provisions of this Agreement.


Section 4.04 -- Cancellation for Cause: If Customer violates its obligations under this Agreement, FE may cancel this Agreement by sending Cancellation Notice describing the noncompliance to Customer. Upon receiving Cancellation Notice, Customer shall have ten (10) days from the date of such notice to cure any such noncompliance. If such noncompliance is not cured within the required ten (10) day period, FE shall have the right to cancel this Agreement as of the eleventh day after the date of the Cancellation Notice.


Section 4.05 -- Return: Upon termination or cancellation of this Agreement, Customer shall promptly remove (at Customer’s expense) all customer information and data stored in Flip Effect Software and return to FE the Flip Effect Software, the Documentation and all FE materials provided by FE to Customer hereunder and shall provide FE with a certificate of compliance with this Section 4.05 signed by an authorized representative of Customer. Orders under the Sales Agreement terminated or cancelled by Customer or changes made by Customer within ten (10) days after the Effective Date or before implementation of Flip Effect Software on the System has started (whichever is earlier) are subject to FE and Manufacturer’s standard return and refund policy in effect, including (without limitation) restocking fees and other applicable fees. Upon termination or cancellation of this Agreement ten (10) days after the Effective Date or after implementation of the Flip Effect Software, FE shall be entitled to retain all payments rendered to FE under this Agreement, including (without limitation) the Deposit, the Price, payment for the Services, and payments in anticipation of Services.


ARTICLE V: WARRANTY


Section 5.01 -- Warranty: FE represents and warrants that Flip Effect Software shall perform substantially as represented in the Documentation for the Warranty Term. Customer’s exclusive remedy for breach of warranty shall be modification or replacement of Flip Effect Software, as determined by FE.


Section 5.02 -- Third Party Warranties: FE hereby assigns to Customer the benefit of any and all Manufacturer warranties for the Third Party Technology and may cooperate (as determined by FE) with Customer in securing the benefit of any remedies available to Customer under any such Manufacturer warranty.


Section 5.03 -- Service Warranty: Any Services provided by FE pursuant to this Agreement shall be performed on a reasonable efforts basis in a timely and professional manner and shall conform to the standards generally observed in the industry for similar Services and shall be subject to Sections 5.01, 5.04, 5.05 and 5.08.


SECTION 5.04 -- DISCLAIMER: THE WARRANTIES SET FORTH IN SECTIONS 5.01 AND 5.03 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND FE HEREBY DISCLAIMS AND CUSTOMER HEREBY WAIVES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY.


Section 5.05 -- Express Warranties: Customer hereby acknowledges and agrees that FE (including FE officers, employees, agents, directors, independent contractors, affiliates, distributors and successors) has not made or granted any express warranties concerning the System, the Services and Flip Effect Software except as expressly set forth in Sections 5.01 and 5.03 of this Agreement.


Section 5.06 -- Third Party Claims: If a final judgment from a court of competent jurisdiction is entered against Customer upholding claims that Flip Effect Software violates a United States patent, copyright, trade secret or other proprietary rights of a third party in the United States, provided that Customer gives FE prompt written notice upon Customer’s knowledge of any such claim, permits FE to answer and defend (at FE option) such claim or action and provides FE with information, assistance and authority to assist FE in the defense of such claim or action, FE shall perform one or more of the following actions (as determined by FE) within one year of the date final judgment in favor of such third party’s claim is rendered by a court of competent jurisdiction:

  • Replacement: Replace Flip Effect Software with a non-infringing Flip Effect Software product of substantially equivalent functional and performance capability;
  • Modification: Modify Flip Effect Software to avoid the infringement without substantially eliminating the functional and performance capabilities of Flip Effect Software;
  • Obtain Agreement: Obtain a license for use of Flip Effect Software from the third party claiming infringement for use of Flip Effect Software.

FE shall have the right to participate or assume the defense (as determined by FE) and Customer shall permit and authorize FE to participate in or assume the defense of any such claim or action through legal counsel. The foregoing remedy does not apply and FE shall have no obligation in connection with or relating to any third party infringement claim in connection with or related to
  • Customer’s modification of Flip Effect Software;
  • Customer’s failure to use Flip Effect Software in accordance with the Documentation in effect;
  • Customer’s failure to use the most current release or version of Flip Effect Software;
  • Customer’s combination, interface, operation or use of Flip Effect Software with Third Party Technology; and
  • FE compliance with designs, instructions, or specifications required by Customer. The remedies set forth herein shall be the sole and exclusive remedies of Customer under this Agreement for any and all claims of indemnification relating to infringement. FE obligations set forth in this Section 5.06 shall not apply to the Third Party Technology.


Section 5.07 -- Remedies: The exclusive remedy of Customer for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the System, Flip Effect Software or any transaction involving Flip Effect Software, regardless of the form of action, whether in contract or in tort, including negligence and breach of warranty, shall be limited to repair or replacement of Flip Effect Software as determined by FE.


Section 5.08 -- Limitation of Damages: FE shall not be liable to Customer in connection with or relating to this Agreement, the System, Flip Effect Software and any transactions involving Flip Effect Software for any direct, indirect, lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including breach of warranty and negligence, regardless of whether FE has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Notwithstanding anything to the contrary, the liability of FE for any reason and for any cause of action whatsoever in connection with or relating to this Agreement, the System Flip Effect Software and any transactions involving Flip Effect Software shall be limited to the license fee for Flip Effect Software.


Section 5.09 -- Force Majeure: FE shall not be liable for any failure by FE to perform its obligations under this Agreement because of circumstances beyond the reasonable control of FE, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, labor disputes, war, any acts or omissions of any government, governmental authority or third party, declarations of governments, transportation delays, power failure, computer failure, telecommunications failure, Third Party Technology, failure of Customer to cooperate with the reasonable requests of FE, misuse of the System or Flip Effect Software by Customer or third party, breach of this Agreement by Customer or a third party and any other events reasonably beyond the control of FE.


Section 5.10 -- Customer Indemnification: Customer shall release, defend, indemnify and hold harmless FE (including its officers, directors, employees, affiliates, independent contractors, distributors, agents and successors) against any expense, loss, cost or liability (including, without limitation, interest, penalties, attorney fees and paralegal fees) arising from any and all claims, demands, damages or actions resulting from or related to

  • use of Flip Effect Software by Customer, (including, without limitation, any claim regarding use of Flip Effect Software by Customer in an infringing manner or any claim by third parties for breach of warranty, negligence, loss of data, libel, slander, unfair competition, trademark infringement, or invasion of privacy);
  • performance of Flip Effect Software;
  • Customer’s negligence or the acts (or any failure to act) of Customer hereunder;
  • any breach by Customer of the obligations of Customer hereunder; and
  • investigation or defense of any of the above or in asserting FE rights hereunder.


Section 5.11 -- Cooperation: Customer shall cooperate with FE by providing FE with information concerning Flip Effect Software and the System as may be requested by FE from time to time and by providing with unrestricted access to the personnel, facilities, computers, computer Software and data of Customer.


Section 5.12 -- Maintenance: Customer hereby acknowledges and agrees that Customer shall solely be responsible for acquiring, installing, implementing, updating, upgrading, maintaining and replacing the System and all Third Party Technology for any reason, including (without limitation) for Updates or correction of Defects, including (without limitation) all costs, fees, taxes and payments in connection therewith or related thereto.


Section 5.13 -- Security Interest: FE hereby reserves and Customer hereby grants to FE a purchase money security interest in the System and Flip Effect Software to secure payment of the Price by Customer. In order to perfect such security interest, Customer hereby appoints FE as the true and lawful attorney-in-fact of Customer and Customer hereby authorizes FE to

  • execute in the name of Customer all forms, documents and financing statements deemed desirable by FE, and
  • file copies of the SalesAgreement, this Agreement and any forms and financing statements with appropriate government agencies and offices as deemed necessary by FE to perfect such purchase money security interest.


    Section 5.14 -- Repossession: If Customer fails to pay the balance of the Price when due (as provided in Section 3.01 of this Agreement), FE shall have the right to enter the Facility and to repossess the System and Flip Effect Software without further notice. If any Event of Bankruptcy occurs before payment of the balance of the Price when due (as provided in Section 3.01 of this Agreement), FE shall be entitled to any and all remedies available to a secured creditor under the U.S. Bankruptcy Code and applicable state or federal law.


    ARTICLE VI: INTELLECTUAL PROPERTY


    Section 6.01 -- Ownership and Title: Title to Flip Effect Software, including all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith shall be the exclusive property of FE. Customer hereby assigns, transfers and conveys to FE any and all rights, title and interests Customer may have or accrue in Flip Effect Software, including (without limitation) any and all ownership rights to patents, copyrights, trademarks and trade secrets therein or in connection therewith.


    Section 6.02 -- Confidential Information: Flip Effect Software shall be deemed Confidential Information of FE. Customer shall maintain the Confidential Information in strict confidence. Customer shall not disclose Confidential Information except to Authorized Persons. Customer shall not access, duplicate or use the Confidential Information except as otherwise permitted under this Agreement.


    Section 6.03 -- Trade Secrets: Customer hereby acknowledges and agrees that the Confidential Information

    • derives independent economic value (actual or potential) from not being generally known to, or readily ascertainable by, other persons who can obtain economic value from its disclosure or use;
    • is the subject of reasonable efforts by FE under the circumstances to maintain its secrecy; and
    • is a trade secret as defined under Chapter 688 of the Florida Statutes [§688.002(4)] and the Restatements.


    Section 6.04 -- Reverse Engineering: Customer shall not reverse engineer Flip Effect Software and shall not allow Flip Effect Software to be reverse engineered.


    Section 6.05 -- Backup Copy: Customer may create one copy of Flip Effect Software (excluding the printed Documentation) at the Facility only for routine archival or backup purposes.


    Section 6.06 -- Copies: Except as provided in Section 6.05, Customer shall not copy Flip Effect Software and shall not allow Flip Effect Software to be copied without the prior written consent of FE.


    Section 6.07 -- Modifications: Customer shall not modify Flip Effect Software and shall not allow Flip Effect Software to be modified without the prior written consent of FE. Customer shall not use Flip Effect Software or any materials incident thereto to develop computer Flip Effect Software without the prior written consent of FE. If Flip Effect Software is modified, such modifications shall be the sole and exclusive property of FE and FE shall own any and all rights, title and interests to such modifications and any resulting computer Flip Effect Software, including (without limitation) any and all copyrights, patents and trade secrets therein or in connection therewith.


    Section 6.08 -- No Contest: Customer shall not contest or aid in contesting the ownership or validity of the trademarks, service marks, trade secrets, or copyrights of FE.


    Section 6.09 -- Employee Pirating: Customer shall not induce or solicit (directly or indirectly) any Associate to leave the employ or hire of FE. Customer shall not engage (directly or indirectly) the services of such Associate (as an employee, consultant, independent contractor, or otherwise) without the advance written consent of FE.


    Section 6.10 -- U.S. Government Restricted Rights: If Customer is the U.S. Government or an agency or department thereof (collectively “Government”), Flip Effect Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c)(1) and (2) of the Commercial Computer vRestricted Rights clause at 48 C.F.R. 52.227-19.


    Section 6.11 -- Proprietary Notices: Customer shall not remove, alter or obscure any copyright notices or other proprietary legends displayed by or used by FE in connection with or related to Flip Effect Software.


    Section 6.12 -- Trademarks: FE trademarks, trade dress, logos, tradenames or insignia (“FE Marks”), including (without limitation) Flip Effect Software, are owned exclusively by. FE shall retain all rights, title and ownership interests in FE Marks. Customer shall not (directly or indirectly) use any trademark, tradename, trade dress, insignia or logo that is similar to or a colorable imitation of any FE Marks.


    Section 6.13 -- Continuation: The terms and conditions of this Article VI shall survive termination and cancellation of this Agreement.


    ARTICLE VII: MISCELLANEOUS


    Section 7.01 -- Assignments: All assignments of rights under this Agreement by Customer without the prior written consent of FE shall be void.


    Section 7.02 -- Public Announcement: All public announcements of the relationship of FE and Customer under this Agreement shall be subject to the prior written approval of FE. FE shall have the right to use the name of Customer as a reference for marketing purposes in connection with Flip Effect Software.


    Section 7.03 -- Entire Agreement: This Agreement and the Sales Agreement contain the entire understanding of the parties and supersede previous verbal and written agreements between the parties concerning the System and Flip Effect Software. In the event of a conflict between the terms of this Agreement and the terms of the Sales Agreement, the terms of this Agreement shall prevail.


    Section 7.04 -- Amendments and Modifications: Alterations, modifications or amendments of a provision of this Agreement shall not be binding unless such alteration, modification or amendment is in writing and signed by FE and Customer.


    Section 7.05 -- Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.


    Section 7.06 -- Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision thereof.


    Section 7.07 -- Counterparts: This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.


    Section 7.08 -- Governing Law: This Agreement shall be governed by the laws of the State of California without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction and venue shall be in Los Angeles, Los Angeles, CA


    Section 7.09 -- Notice: Notices shall be in writing and shall be deemed delivered when delivered by commercial overnight delivery service, by courier, Certified or Registered Mail with Return Receipt Requested or by hand to the address set forth below for FE and to the address set forth on the Sales Agreement for Customer. Notice shall be deemed given on the date of receipt - as evidenced in the case of Certified or Registered Mail by Return Receipt.
    FlipEffect.com
    Address: 4768 Park Granada Suite 108, Calabasas CA 91302


    Section 7.10 -- Pronouns/Gender: Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural as the context shall require.


    Section 7.11 -- Bankruptcy: If FE must institute, defend, appear or attend a bankruptcy proceeding as a result of the filing of bankruptcy by Customer, fees and expenses shall be paid by Customer. If Customer has a bankruptcy proceeding filed against it, FE shall recover attorney fees, expert witness fees, and other costs incurred by FE in connection with the bankruptcy proceeding, hearing or trial.


    Section 7.12 -- Waiver: Any waiver of a provision of this Agreement by FE shall not be binding unless such waiver is in writing and signed by FE. Waiver by FE of any breach of this Agreement shall not constitute waiver of any other breach. Any failure by FE to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.


    Section 7.13 -- Relationship of the Parties: It is agreed that the relationship of FE and Customer is primarily that of licensor and licensee or seller and customer respectively. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.


    Section 7.14 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of MyTechnologyLawyer.com in Los Angeles, CA. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Qualified Arbitrators shall be selected by the parties in accordance with the Arbitration Rules of MyTechnologyLawyer.com. Each party shall have the right of discovery as set forth in the Federal Rules of Civil Procedure. The Arbitration shall be administered by MyTechnologyLawyer.com.


    Section 7.15 -- Assurances: Each party hereby represents and warrants that all representations, warranties, recitals, statements and information provided to the other under this Agreement are true, correct and accurate as of the Effective Date to the best of their knowledge.


    Section 7.16 -- Litigation Expense: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of arbitrators and administrative fees and expenses of arbitration).


    Section 7.17 -- Equitable Remedies: The parties hereby acknowledge that damages at law may be an inadequate remedy to FE. FE shall have the right of specific performance, injunction or other equitable remedy in the event of a breach or threatened breach of this Agreement by Customer.


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    “We at Aglaia Software, Inc. would like to thank you for the opportunity to work with your company.”


        

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    Aglaia Software, Inc.

    4768 Park Granada, Suite 108

    Calabasas, CA 91302

    tel 818-876-0576

    fax 818-225-0725

    www.flipeffect.com