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Software License

Agreement
THIS SOFTWARE LICENSE AGREEMENT ("Agreement") is by and between NAÏVE Software Inc., a corporation registered under the jurisdiction of the State of Delaware, having its registered address at 111 Pier Avenue, Suite 100, Hermosa Beach, California 90254 ("Naïve"), and you, the individual or entity who uses the Software (as defined below) ("Licensee"). Naïve and Licensee may be hereinafter referred to individually as a "Party" and collectively as the "Parties".

WHEREAS, Naïve is a company that, among other things, develops, operates and licenses a technology that enables its users to sort, mark-up and edit raw video materials;

WHEREAS, Licensee wishes to use the technology of Naïve for its purposes;

WHEREAS, the Parties wish this Agreement (including the appendices, schedules and exhibits hereto) to govern their relationship regarding the foregoing.

NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual promises contained in this Agreement, and other valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties hereby agree as follows:

1. DEFINITIONS AND INTERPRETATION

1.1. In this Agreement, capitalized terms shall have the following meanings:

Affiliate means, with respect to either Party, any corporation, firm, partnership, person or other entity, whether de jure or de facto, which directly owns, is owned by or is under common ownership with such Party, and any person, firm, partnership, corporation or other entity actually controlled by, controlling or under common control with such Party. For purposes of this definition, ownership shall mean the ownership of, and/or the right to vote, securities representing at least 50% of the voting power of the relevant entity on matters submitted to the equity holders of such entity generally.

Fees means the fees and other amounts payable under this Agreement.

Intellectual Property Rights mean exclusive rights, including patents on inventions, utility models, designs; exclusive rights in trademarks and trade dress; rights in designs, trade, business or domain names, (whether registered or not); rights in original works of authorship, including copyrights and relating (neighbouring) rights; exclusive rights in know-how, trade secrets or other intellectual property or other similar rights existing anywhere in the world now or in the future and additions, modifications, improvements or applications to or for the foregoing.

Installation Date means the date when the License has installed the Software onto its personal computer.

License means the limited non-exclusive right to use the Software to be granted to Licensee by Naïve under this Agreement.

Licensee Brand Features means the "Licensee" brand in its various, and its respective logos, branding and any other trademarks, trade names, service marks, service names and logos anywhere in the world, whether registered or not, and proprietary to Licensee and its Affiliates.

Licensee Materials mean all manuals and other materials as may be provided and/or delivered by Licensee to Naïve as more fully specified in the Agreement or any appendices or annexes hereto, the Licensee video materials, Licensee Brand Features, and/or other proprietary materials provided by Licensee to Naïve, including, any improvements to any of the foregoing and all related Intellectual Property Rights that are or may be created or developed by itself or its Affiliates, with or without the involvement or participation of the other Party.

Licensing Fee means every fee that Licensee shall pay to Naïve for granting the License under the Agreement.

Naïve Brand Features shall mean the "NAVE" brand in its various forms, and its respective logos, branding and any other trademarks, trade names, service marks, service names and logos anywhere in the world, whether registered or not, and proprietary to Naïve and its Affiliates.

Naïve Documentation means all manuals and other technical materials as may be delivered by Naïve to Licensee from time to time at Naïve's sole discretion, in any medium, relating to the details of using the Software.

Naïve Materials mean the Software, Naïve Documentation and/or Naïve Brand Features, including any improvements to any of the foregoing and all related Intellectual Property Rights that are or may be created or developed by itself or its Affiliates, with or without the involvement or participation of the other Party.

Software means the "NAÏVE Lite" software owned by Naïve that facilitates the technology of sorting and marking-up raw video materials.

Term means the term during which this Agreement is in effect which is determined in Section 8.1 hereof.

1.2. Words importing the singular also include the plural and vice versa where the context requires. Words importing one gender also include other genders. Words importing persons or parties shall include firms and corporations and any organization having legal capacity.

1.3. Reference to the words "include" or "including" shall be construed without limitation to the generality of the preceding words.

1.4. The headings are inserted for convenience and shall not be taken into consideration in interpretation or construction of this Agreement.

1.5. No provision of this Agreement shall be construed adversely to a Party solely on the ground that the Party was responsible for the preparation of this Agreement or that provision.

2. LICENSE GRANT

2.1.1. Subject to terms and conditions of this Agreement and payment of the Fee set forth in Section 4.1 hereof, Naïve shall grant to Licensee, a limited, non-exclusive, revocable, worldwide license (the "License") for the Term of this Agreement to use the Software strictly as follows: to install one copy of the Software onto the Licensee's personal computer and apply the Software for the purpose of editing Licensee's raw video materials.

2.1.2. For the avoidance of doubt, Licensee may only use the Software as explicitly set out herein.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. Naïve will:

3.1.1. provide Licensee with the Software in accordance with the Agreement.

3.2. Naïve shall be entitled to:

3.2.1. use the Licensee Materials processed by Licensee with the Software solely for improving the quality of its proprietary technologies and/or the Software.

3.3. Licensee shall:

3.3.1. pay Naïve the Fees specified in Section 4 for granting the License under this Agreement.

4. FEES AND PAYMENT

4.1. For the License granted under the Agreement Licensee shall pay Naïve Licensing Fees specified at naive.pro.

4.2. Licensing Fees hereunder shall be payable in US dollars.

4.3. All Licensing Fees hereunder are non-refundable irrespectively of whether Licensee has used the Software or not.

4.4. All Licensing Fees shall be paid by Licensee in full without deduction of any taxes, fees or other duties. If the law requires Licensee to pay any other taxes, charges, duties and/or other payments payable by Naïve as an income recipient, then the total amount to be paid by Licensee shall be increased so as to make the net amount received by Naïve equal to the amount of the Licensing Fees specified in Section 4.1.

4.5. Any amount not paid when due may bear a late payment charge, until paid, at the rate of 0.5% per month or, if lesser, the maximum amount permitted by law. In case a late payment charge is requested by Naïve, payment should be made within 15 (fifteen) business days of the date of invoice issuance.

5. REPRESENTATIONS AND WARRANTIES

5.1. Each Party represents and warrants to the other that it has the right and authority to enter into this Agreement and to perform all of its respective obligations and undertakings and to grant the rights set forth herein.

5.2. Licensee represents and warrants to Naïve that:

5.2.1. it shall comply with all applicable laws, regulations and rules applicable to its obligations under the Agreement;

5.2.2. Licensee will perform its responsibilities and will conduct all activities under this Agreement in an ethical manner;

5.3. Except where the following is prohibited by applicable law, Licensee does not give any warranty in respect of any third party products or software.

5.4. Naïve represents and warrants to Licensee that:

5.4.1. to the best of Naïve's knowledge, as of the delivery date of each version of the Software, the Software does not infringe any Intellectual Property Rights of any third party; and

5.4.2. it shall perform its responsibilities and shall conduct all activities under this Agreement in an ethical manner and with all reasonable skill and care; and

5.4.3. it shall comply with all applicable laws, regulations and rules applicable to it or its obligations under the Agreement.

5.5. If Licensee notifies Naïve of any defect or fault in the Software in consequence of which it fails to conform to any of the warranties in clause 5.4, Naïve shall, at Naïve' option, as soon as reasonably possible repair or replace the Software.

5.6. The warranties in clause 5.4 shall apply to any modification of the Software that is acquired by Licensee during the course of this Agreement.

5.7. EXCEPT AS EXPLICITLY WARRANTED IN THIS AGREEMENT OR ANY APPENDICES OR ADDENDA THERETO, THE SOFTWARE IS BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND AND NAÏVE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY FITNESS FOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT.

6. INTELLECTUAL PROPERTY RIGHTS

6.1. The Parties acknowledge and agree that Naïve shall at all times solely and exclusively own all right, title and interest, including all Intellectual Property Rights, in and to the Software and all and any modifications and derivative works thereof and any updates, upgrades, or new versions thereof, or other Naïve Materials. Licensee will not claim for itself or for any third parties any rights, title, interest or licenses to the Naïve Materials except for those expressly granted under this Agreement.

6.2. Licensee acknowledges and agrees that any goodwill or reputation for any part of Naïve Materials generated by or in connection with this Agreement shall belong to Naïve and/or its Affiliates and upon expiration or termination of this Agreement, for whatever reason, Licensee shall not be entitled to claim any recompense or compensation for such enhanced goodwill or reputation.

6.3. Except as expressly set forth in the Agreement, Licensee hereby expressly acknowledges and agrees that it shall not (and shall not cause, permit or authorise anyone else to):

6.3.1. translate, modify, reverse engineer, decompile, hack, disassemble or create derivative works of the Naïve Materials, or components thereof except as expressly permitted by local laws;

6.3.2. remove, modify, adapt, interfere with or alter any trade mark, copyright or other proprietary notice in Naïve Materials;

6.3.3. sell, loan, lease, export, import, assign, sublicense or otherwise transfer its rights in Naïve Materials, or any portion thereof, save as expressly permitted herein.

7. LIMITATION OF LIABILITY

7.1. EXCEPT FOR GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, PERSONAL INJURY, REAL OR TANGIBLE PERSONAL PROPERTY DAMAGE, FRAUDULENT OR INTENTIONAL MISREPRESENTATION, NAÏVE SHALL BE LIABLE TO LICENSEE FOR (A) ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES OF LICENSEE CAUSED OR RESULTING FROM ANY BREACH OF THIS AGREEMENT OR ARISING OUT OF THE PERFORMANCE OF THIS AGREEMENT OR (B) THE CONSEQUENCES OF ANY INTERRUPTION OR ERRORS, OR FOR ANY LOSS OF, DAMAGES TO, OR CORRUPTION OF DATA OR CONTENT CAUSED BY NAÏVE'S MATERIALS OR SERVICES.

7.2. Except for gross negligence, intentional misconduct, personal injury, real or tangible personal property damage, fraudulent or intentional misrepresentation, Naïve's total liability of any kind related to this Agreement regardless of whether any action or claim is based on contract, tort (including negligence) or any other legal theory even if Naïve has been advised of the possibility of such damage, shall be limited to the amount of 1 (one) month Licensing Fee.

8. TERM AND TERMINATION

8.1. This Agreement shall become effective as of the date of first payment of the Licensing Fee by Licensee and unless earlier terminated as provided herein, will remain in full force and effect for a period of 20 (twenty) days starting from the Installation Date (the "Term").

8.2. Either Party shall be entitled to terminate this Agreement in unilateral order at any time and with immediate effect:

8.2.1. upon a material breach or a series of defaults or breaches which together constitute a material breach, by the other Party of any of its obligations under this Agreement, that has not been cured (if capable of being cured) within 30 (thirty) calendar days after written notice of such breach (except for payment, which cure period shall be 15 (fifteen) business days after written notice); or

8.2.2. if the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor's arrangement, or comparable proceeding, or if any such proceeding is instituted against the other Party and not dismissed within 30 (thirty) calendar days.

8.3. In case Licensee breaches any term of this Agreement, the Agreement shall be terminated automatically.

8.4. Upon termination of this Agreement Licensee shall cease using the Software and the License granted hereunder shall terminate.

9. MISCELLANEOUS

9.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of State of New York, without regard to any conflict of laws principles, and each Party irrevocably submits to the personal and exclusive jurisdiction of the courts of State of New York, residing in New York City.

9.2. Waiver. The waiver, express or implied, by either Party of any breach of this Agreement by the other Party will not waive any subsequent breach by such Party of the same or a different kind.

9.3. Independent Contractors. The Parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in this Agreement shall be interpreted as constituting a partnership, joint venture or agency relationship between the Parties, nor shall either Party be interpreted as the joint venturer, co-owner, employee or partner of the other Party or as conferring upon either Party the power of authority to act for, bind or otherwise create or assume any obligation on behalf of the other Party and neither Party shall hold itself out as entitled to do the same.

9.4. Assignment. Neither Party shall, without the prior written consent of the other Party, assign, sublicense, transfer or otherwise dispose of any of its rights or obligations under this Agreement and any attempt at assignment in breach of this Section 9.4 shall be null and void. Notwithstanding the foregoing, Naïve may, without the prior consent of Licensee, assign or transfer this Agreement as part of a corporate reorganization, consolidation, merger or sale of substantially all assets of such Party, provided the assignee assumes in writing all obligations in this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of Naïve's permitted successors and assigns.

9.5. Notices. Any notice, request, demand or other communication (other than payments) required or permitted under this Agreement may be sent by regular mail, postage prepaid, or electronic mail, by overnight courier or messenger, in each case addressed to the other Party at the address set out for such Party in this Agreement or to such other address or person as a Party may from time to time designate in writing to the other in accordance with this Section 9.5. Any such notice shall be deemed to be properly made to the other Party under this Agreement only when received by such Party at the following address: If to Naïve: Notice to be sent by email to: [email protected]. Copy of the notice also to be sent by post to: 111 Pier Avenue, Suite 100, Hermosa Beach, California 90254, Attn: Legal. For the avoidance of doubt, notice shall be deemed received by Naïve when the email notice is received.

9.6. Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the other provisions of this Agreement will remain in full force and effect.

9.7. Third Parties. The Parties confirm that unless explicitly granted herein their intent is not to confer any rights on any third parties by virtue of this Agreement, and accordingly any provisions of law conferring rights to third parties shall not apply to this Agreement.

9.8. Entire Agreement. This Agreement constitutes the entire Agreement and understanding between the Parties and integrates all prior discussions between them related to its subject matter. Other than as expressly stated in the Appendices or Schedules, no modification of any of the terms of this Agreement shall be valid unless in writing and signed by an authorised representative of each Party.

9.9. Appendices/Schedules. In the event of discrepancy between any Appendix (or Schedule) and this Agreement, this Agreement shall take precedence, unless the Schedule in question expressly addresses the intended deviation from a provision of the main body of this Agreement.

9.10. Counterparts. This Agreement may be executed in one or more counterparts and any party may enter into this Agreement by executing a counterpart. Any single counterpart or a set of counterparts executed, in either case, by all the Parties shall constitute one and the same agreement and a full original of this Agreement for all purposes.

9.11. Survival. Sections 4.3, 4.5, 5, 6, 7, 9 and all sections in this Agreement that are either expressed to survive or which are by implication intended to survive termination or expiry of this Agreement will continue to survive notwithstanding termination or expiry of this Agreement.

9.12. Force Majeure. Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 4 (four) weeks, the party not affected may terminate this agreement by giving 5 (five) days' written notice to the affected party. In such case, Licensee will be excused from any outstanding or future payments as well as additional payments.

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