master software license agreement - … · web viewthis master software license agreement...

MASTER SOFTWARE LICENSE AGREEMENT

This Master Software License Agreement (“Agreement”) by and between Sony Pictures Entertainment Inc., having an office at 10202 West Washington Boulevard, Culver City, California 90232-3195 (“Licensee”) and [ WideOrbit Inc. ],., (“Licensor”), having an office at [WIDE ORBIT TO INSERT ADDRESS],1160 Battery Street, Suite 300, San Francisco, California 94111 is made and entered into as of [ ], 20__2013 (“Effective Date”).

NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged and in consideration of the mutual promises set forth herein, Licensee and Licensor hereby agree as follows:

1. DEFINITIONS

1.1 “Accounts Receivable Import” shall mean the data import of current accounts receivable information from Licensee’s legacy system, based on data provided by Licensee, and in a format suitable for automated import.

1.2 “Affiliate” shall mean any company that directly or indirectly controls, is controlled by, or is under common control with Licensee or its successor entity.

1.3 “Automation Integration” shall mean the automated integration between a Licensee system and Licensor software.

1.2 “Divested Entity” shall mean any Affiliate, department or division of Licensee that loses its status as such whether as a result of an asset sale, stock sale, merger, spin-off or other disposition (of either Licensee or Affiliate) to a third party.

[1.2] 1.3 "Documentation" shall mean all technical or end user documentation (whether written or in electronic form) for and delivered generally to customers with the applicable Software, or any Updates thereto, including, without limitation, any and all flowcharts, source code, program procedures and descriptions (including descriptions of source code and build procedures for executable code), descriptions of the functional, operational and design characteristic of the Software, system and database documentation, procedures for maintenance and modification, testing data and similar written material relating to the design, structure and implementation of the Software, as well as help files and user documentation to allow individual users to use the Software.

1.4 “Licensed Users” means the number of concurrent users allowed to access the Software as set forth in the applicable Schedule. [SPE: Do not see where the number of concurrent users is defined? Or where it is limited need this clarified]

[1.3] “Historical Revenue Import” shall mean the data import of one year of historical revenue information from Licensee’s legacy system, based on data provided by Licensee and in a format suitable for automated import.

1.4 “Launch” shall mean the first usage by Licensee of the software in a live environment.

1.5 "Schedules" shall mean any exhibits, attachments, purchase orders or schedules attached to, incorporated in, or referencing this Agreement. A form of Schedule is attached hereto as Exhibit A for reference.

1.6 “Services” means the maintenance services described in this Agreement, and any professional services, including but not.

of 29

[Vendor] – Sony Pictures Entertainment Master Software License Agreement dated [Month] [Day] [Year] MSLA rev 3-12

Cynthia Stanaro, 06/03/13,

The formatting and numbering is off in several sections. I have corrected in some areas, but left the balance until the text was final.


Not relevant for the product SONY is now licensing.

1.7 "Software" shall mean the computer software programs, as listed in Schedules executed hereunder, including Updates as hereinafter defined, provided or to be provided to Licensee by Licensor pursuant to this Agreement and the Documentation.

1.8 “Network(s)” shall mean [SPE: Need definition of “Network(s)” ?? “A unique programming service or revenue stream. For clarification purposes, identical feeds of the same network will not be considered separate networks, nor will feeds where the only differentiation is language track, promotions, interstitial material, commercial material, time zone, or the order in which material is broadcast.” ?]

1.8 “Network(s)” shall mean means the site (physical station location) where Licensee may install and use Software; provided such location is: (a) Licensee’s business office; (b) within the United States or other country identified on a Schedule; and (c) at the location(s) provided a Schedule.

1.9 “Updates” shall mean all revisions, new versions and releases, , bug fixes, error corrections, updates, improvements, modifications and minor additional functionality enhancements to the Software which are produced and made generally available by Licensor. Without prejudice to Sections 2.10 and 2.11 below, Updates do not include products or software modules that Licensor markets separately as a different product to the public and its customers.

2. THE LICENSED SOFTWARE [2.1] Grant of License. Licensor hereby grants to Licensee and its Affiliates a non-exclusive, non-

transferable (subject to Section 13.5 of this Agreement), worldwide, limited license to use the Software during the Term of the applicable Schedule for its own ordinary business activities at the Networks and only for the number of Licensed Users.. [SPE: What is the definition of “ordinary business?. SPT does wholly own the networks we will be implementing this for. However, we are interested in folding in Joint Ventures at a later time.]

2.1[2.2] This Agreement supersedes any so-called "shrink-wrap" or other form of license agreement which may be packaged with the Software or incorporated into the media on which the Software is shipped or with the media which may be acquired online or any so-called “click-through” license terms.

2.2[2.3] Licensee’s use of the Software is limited to the number of Networks set forth on the applicable Schedule.

[2.3.1] The Software and Documentation may be copied in whole or in part, in printed or machine-readable form, for use by Licensee for non-production purposes. Any Documentation so copied must duplicate any confidentiality or similar notices. Non-production purposes shall include, but not be limited to, disaster recovery, archival storage, staging, development, testing, quality assurance and training. .

2.3.2 Use of the Software in test or development environments, for transition of users to new systems/servers/equipment, or for disaster recovery or business resumption purposes, including periodic tests relating thereto, shall not count toward any limit on Networks.

[2.3.3] Should Licensor’s Software licenses be restricted to certain identified Licensee networks , Licensee may, with reasonable notice to Licensor, substitute different networks for one or more of such networks . Subject to Services, if any, required to accomplish such substitution and the fees thereof, ,Licensor will not incur additional fees if transferred to a substantially equivalent networks based upon market size.

2.4 Licenses which are granted hereunder shall, without limiting Licensee’s other obligations, include (i) the right of Licensee to use the Software on behalf of Affiliates or Divested Entities (ii) the right of Affiliates or Divested Entities to use the Software in accordance with the applicable terms and conditions hereof, and (iii) the right of Licensee’s and its Affiliates’ subcontractors, agents and consultants to use the Software in furtherance of providing services to Licensee and its Affiliates, subject to Licensee causing

of 29



We can include JVs, but not re-selling or service bureau activitiees

such party to maintain the confidentiality of the Software in a manner consistent with Article 11, and (iv) incidental usage by clients of Licensee, provided such usage is considered part of the business of Licensee.

[SPE: Must add back in Sections 2.4.1 and 2.4.2 if SPE were to try and sell a channel]

2.4.1 Licensor agrees that any Divested Entity (or the successor to such Divested Entity’s business, as applicable) shall have a right to use the Software for a period of one (1) year after becoming a Divested Entity at no additional fee. Additionally, within three (3) months of an entity becoming a Divested Entity, Licensor shall offer such Divested Entity the opportunity to continue use of the Software beyond such one year period on terms and costs no less favorable than those contained in this Agreement at no additional license cost during the license term of the applicable Software.

2.4.2 If Licensee, directly or indirectly, acquires a company or a department, division or a line of business of another company (“Acquired Company”) that has assigned to Licensee its licenses for Software in accordance with the terms of a separate agreement between Licensee and the Acquired Company, Licensee, at its sole option, may elect to have such Software become subject to the terms and conditions of this Agreement without incurring additional fees associated with such transfer of license(s).) beyond the fees as originally agreed in the separate agreement between Licensor and the Acquired Company. Licensee may make such election by providing notice to Licensor. The Acquired Company’s agreement with Licensor for the transferred license(s) shall terminate immediately upon Licensee’s exercise of its election and the terms and conditions of this Agreement shall be the controlling document.

2.4.1

2.5 In addition to the restrictions set forth above, Licensee shall not (and shall not allow any third party to): (a) sell, lease, license, sublicense, or otherwise exploit any portion of the Software or Documentation; (b) decompile, disassemble, or reverse engineer any portion of the Software (except to the extent that such restrictions are not permitted under applicable law); (c) modify the Software or prepare derivative works of or based on the Software; (d) copy or distribute the Software (except as allowed herein), or (e) except as provided herein, use the Software for the benefit of a third party, such as to provide rental or sharing arrangements, or on a “service bureau” basis or as an “application service provider”. Licensee agrees that Software is licensed to Licensee solely for the purpose set forth herein, and that the pricing for Software has been determined based on that specific purpose. [SPE: Must clarify that the use of this software to benefit a third party limitation does not include where the licensee may be “repping” a third party].

[2.6] .Licensor agrees that Licensee may test and evaluate Software not yet commercially available ("Beta Test") and to test and evaluate commercially available Software for a limited period of time at no charge ("Trial License") in accordance with Article 5 below.

2.7 Licensor shall have and retain title to the Software provided hereunder and does not convey any proprietary rights or other interest therein to Licensee, other than the rights and licenses granted hereunder. For avoidance of doubt, Licensee has not have the right to enhance, modify and/or adapt any of the Software provided to Licensee hereunder and may not create or use derivative works or combine the Software with other programs unless specified by Licensor.

2.8 Licensee may relocate its license(s) to any hardware platform, operating system or database supported by Licensor at no additional cost. In the event Licensee changes or upgrades the operating system under which Licensee operates the Software or modifies the hardware on which the Software operates,

of 29



To discuss, our agreements are term agreements, and the channel license would normally transfer to the acquirer.

Licensor shall provide to Licensee, , a version of the Software compatible with such changed operating system or modified hardware, subject to Licensee’s payment of fees related to Services, if any, necessary to accomplish such a relocation.

2.8 In the event that the Software and/or Documentation is damaged, Licensor will provide Licensee with replacement copies of the Software and/or Documentation for the actual cost of reproduction of the same on new media, which Licensor shall do promptly following request by Licensee.

2.9 Licensor agrees that Affiliates of Licensee may execute Schedules in accordance with the provisions of this Agreement. In such event, the applicable Affiliates of Licensee executing any Schedule shall, for purposes of such Schedule, be considered the “Licensee” as that term is used in this Agreement and this Agreement, insofar as it relates to any such Schedule, shall be deemed to be a two-party agreement between Licensor on the one hand and the Affiliate on the other hand.

2.10 If Licensor or an entity which has acquired Licensor discontinues the Software or components thereof licensed to Licensee (such Software, a “Withdrawn Product”) and offers (a) an equivalent software or component containing substantially similar functionality but renamed or reconfigured into a separate line, (b) is or is marketed as a replacement for or successor to such Withdrawn Product, or (c) provides alternative functionality to or substitute functionality for the functionality of the Withdrawn Product, in all cases regardless of whether the Replacement Product provides substantially new or additional functionality to the functionality of the Withdrawn Product, Licensor or such acquiring entity, as applicable, shall license such equivalent software or component to Licensee at no additional licensing cost.

2.11 Should Licensor offer replacement software which replaces Licensee’s current, previously licensed Software, and such current Software is no longer maintained by Licensor, then Licensee shall have the option to license such replacement software at a cost not to exceed Licensor’s generally offered license fee less a credit of the aggregate total amount of Licensee’s investment (including purchase of product, Updates, maintenance, and services) in the current Software.

2.10

2.11

.

2.12 TREATMENT IN BANKRUPTCY : All rights and licenses granted pursuant to any section of this Agreement are, and will otherwise be, for purposes of Section 365(n) of the U.S. Bankruptcy Code and/or any similar or comparable section of the U.S. Bankruptcy Code (as such sections may be modified, amended, replaced, or renumbered from time to time), executory licenses of rights to “intellectual property,” as defined under Section 101 (35A) of the U.S. Bankruptcy Code (as such sections may be modified, amended, replaced, or renumbered from time to time). The parties will retain and may fully exercise all of their respective rights and elections under the U.S. Bankruptcy Code. Accordingly, the Licensee of such rights shall retain and may fully exercise all of its rights and elections under the U.S. Bankruptcy Code. Upon the commencement of bankruptcy proceedings by or against either party under the U.S. Bankruptcy Code, the other party shall be entitled to retain all of its license rights and use rights granted under this Agreement.

2.13 The rights and privileges granted herein shall extend to Licensee and its present and future Affiliates.

3. DELIVERY; INSTALLATION; ACCEPTANCE

of 29


3.1 Promptly upon execution of this Agreement, Licensor shall deliver the Software and the Documentation to Licensee. At Licensee’s request, and subject to availability, the Software and Documentation shall be delivered by electronic means.

3.2 Upon installation of the Software (including each Update thereto) on Licensee’s computer(s), Licensee shall, with the assistance of Licensor, conduct testing procedures on the Software. If the Software passes all such tests to Licensee’s satisfaction, Licensee shall give Licensor written notice of Licensee’s acceptance of the Software.

3.3 If the Software fails to pass any of Licensee’s testing procedures or fails to function properly or in conformity with the Documentation, Licensee shall notify Licensor and Licensor shall correct such defect within thirty (30) days of receipt of such notice and cause the Software to successfully pass all such tests and functions to Licensee’s reasonable satisfaction as set forth in Section 3.2 above. If following initial installation of the Software does not substantially conform the Documentation, Licensee may, in its sole discretion and in addition to any other rights and remedies available to it under this Agreement or applicable law or at equity, (i) immediately terminate this Agreement without any further obligation or liability of any kind and Licensor shall immediately reimburse Licensee for all amounts paid by Licensee under this Agreement; or (ii) require Licensor to continue to attempt to correct the deficiencies in a commercially reasonable manner until the Software successfully passes all tests and functions to Licensee’s satisfaction, For each Update, Licensee’s rights are limited to Licensors attempt to correct the deficiencies in a commercially reasonable manner. Licensor does not warrant that the functions contained in the Software will meet Licensee’s requirements or that the operation of the Software will be uninterrupted or error free.. The parties understand and agree that third party software, servers and hardware will be required in connection with this Agreement and that Licensee will purchase the servers directly through third parties or Licensor; provided, however, Licensee understands and agrees that Licensor shall not be responsible for any maintenance, support, warranties, or connectivity in connection with any servers or other hardware. Licensee is solely responsible for server back-up and disaster recovery efforts. Should Licensee choose, Licensor may assist Licensee with back-up and disaster recovery efforts for an additional fee to be outlined in a separately mutually agreeable writing.

3.5 When Licensee purchases the required servers, Licensee is solely responsible for installation services. Licensor will use reasonable efforts to coordinate the installation and implementation of that server with the technical personnel of Licensee.

[SPE: Move to Schedule #1]

3.7 Licensor will deliver subsequent Updates, if applicable, to an established FTP site via the Internet for Licensee to then download into its Software server. Licensee and not Licensor is responsible for downloading Updates and is also responsible for backing up Licensee’s database and testing Updates on Licensee’s database. Licensor, at the request of Licensee, will deliver subsequent Updates, if applicable, via the Internet through a ‘tunnel’ to the LAN or direct ‘modem’ connection into the server for an additional fee to be agreed by the parties in good faith. If Licensee is unable to back up and test its database, Licensor, at the request of Licensee, may perform backups and tests for an additional fee to be agreed by the parties in good faith.

3.8 Licensee understands that operation of Software requires a stable information systems environment. Therefore, without the prior written authority of Licensor, Licensee agrees that it shall not tamper with, modify, add or remove:

[1.] a)

2.8.1. any software affecting the Software, including the operating system, to or from the server containing Software.

[1.1.1.] b)any third-party software that may be integrated or bundled with Software on other servers.

[1.1.2.] c)the high-speed connection, as defined in Section 3.6.

of 29


[1.2.] d)Notwithstanding anything to the contrary herein, Licensee expressly agrees that any modifications to the software and/or hardware configurations, whether on the server or that which is integrated with Software, including third-party software upgrades, that are not done with Licensor’s written agreement, shall void the warranty set forth in Sections 8.2(ii) and 8.3. Any Services required to repair Software as a result of Licensee’s failure to comply with the preceding sentence shall be subject to payment by Licensee of Licensor’s then-current Service fees. [SPE: What discount fees are you offering SPE?]Licensee agrees Licensor shall have limited rights to the data generated by Software and that Licensor may compile and publish total sales and traffic information provided that any such use of the data will be reported in aggregate form and Licensor shall not, at any time, disclose the identity of the Licensee.

4. DOCUMENTATION AND PROFESSIONAL SERVICES

4.1 Upon delivery of Software, Licensor shall deliver to Licensee at least one (1) electronic and, if requested, one (1) hard copy of all generally available Documentation for such Software sufficient to enable Licensee personnel to use and to fully understand the functionality, use and operation of such Software. Licensor agrees that Licensee may copy the Documentation in order to satisfy its own reasonable internal requirements, provided Licensee reproduces any copyright or other proprietary notice that is contained on the original Documentation provided by Licensor.

4.2 If professional Services such as training or implementation are required and/or included with the Software license, the charge, duration, nature and other particulars applicable to such Services shall be specified on the applicable Schedule or in a separate Schedule.

5. BETA TEST AND TRIAL LICENSE

5.1 If "Beta Test" is specified on the Schedule, then upon delivery of the beta version of the Software ("Test Software"), Licensee shall have a license to use the Test Software, at no cost or financial obligation, for the period of time specified on the Schedule ("Test Period"). Licensee shall evaluate the Test Software and at the end of the Test Period return such Test Software to Licensor, unless an extension or license is granted by Licensor, at Licensee’s request.

5.1.1 Licensee acknowledges that Test Software may not yet be commercially available from Licensor and therefore is provided to Licensee solely for testing and evaluation purposes to assist Licensor in refining and/or determining the commercial viability and applicability of the Test Software. In no event shall Licensee be deemed to warrant the accuracy of or incur any liability based upon Licensor’s reliance upon any information provided by Licensee to Licensor pursuant to Licensee’s use of Test Software.

5.1.2 If Licensor subsequently makes Test Software available in the commercial marketplace, then Licensee shall have the right to license same, as Software hereunder. In consideration of Licensee being a Beta Test participant, the license fee applicable to such Software shall be discounted for Licensee at a mutually agreed upon percentage in excess of Licensor's generally provided discount off of its License Fee.

5.2 From time to time, Licensee may wish to evaluate Software for its potential use in its operating environment. If “Trial License” is specified in the Schedule, then Licensor agrees to allow Licensee the right to use the Software on a trial basis, at no fee, cost or other obligation. Unless another time period is specified on the Schedule, the Trial License shall be for a period of ninety (90) days from the date such Software is installed on Licensee's computer(s). Licensee is under no obligation to license, purchase or lease any such Software evaluated under a Trial License.

of 29



To be discussed

6. MAINTENANCE; DISCOUNTS

6.1 In consideration of Licensee's payment of the applicable Support Services Fee during the Term (as specified on the applicable Schedule), Licensor agrees to provide Licensee with all services specified in this Article 6 as part of its Support Services for Software licensed hereunder. Licensor agrees to make available all of the Support Services indicated herein for the Software for the term as stated in any applicable Schedule. If Licensor fails to provide such Support Services, without limiting its other remedies, Licensee shall be entitled to a pro-rata refund of all Support Services Fees made in respect of such Software (based upon the decreasing pro-rata amount of fees for the Software over the lesser of the Term or sixty (60) months from the Effective Date of the applicable Schedule).

6.2 Licensor shall provide Licensee with all Updates. At Licensee’s option, Licensee may choose not to implement any such Update(s) and may choose to freeze on its current version(s) of the Software During this time Licensor shall provide full Support Services as long as Licensee is current on Support Services, of which shall be no more than two (2) major versions back from the then-current Update or two (2) years, whichever is longer. Prior to discontinuing such Support Services, Licensor shall provide written notice to Licensee of no less than 24 months prior notice.

6.3 During the Warranty Period and thereafter during the Support coverage period, Licensor shall diagnose, verify and correct or replace any non-conformity, failure, defect, error, malfunction or bug which prevents the Software from performing in accordance with the warranties, Documentation, and other descriptions and/or materials provided to Licensee (“Error”) promptly after Licensee notifies Licensor of an Error or Licensor discovers an Error. Licensor shall provide telephone support for the Software, including but not limited to explanations of program methodology, input/output interpretations, documentation problems, Error reporting, use of the Software, installation instructions and network operations.

6.4 Licensor shall provide Licensee with notice of all known material problems, defects, errors or nonconformities in the Software and/or Documentation, as such problems, defects, errors or nonconformities become known or are reported to Licensor (as well as any remedial action, if any). Licensor shall promptly correct any such problems, defects, errors or nonconformities or develop a work-around, patch or other fix for such problems, defects, errors or nonconformities and shall provide same to Licensee.

6.5 Licensor shall produce and make available to Licensee any and all modifications to the Software to enable the Software to operate in conjunction with any new releases of the applicable equipment's operating system.

6.6 Licensor shall provide remote technical assistance and consultation to Licensee at any time (24 hours a day, seven (7) days a week ; provided, however that should Licensor require access to Licensee’s network, databases or the like, Licensee agrees to cooperate with Licensor’s requests to assess Licensee’s systems. Licensee agrees that support calls for non-critical issues outside business hours may incur an additional fee.

6.7 Licensor shall provide revised and/or updated Documentation (in the same amount and media as originally provided) to correspond to any changes (including Updates) made to the Software, within ten (10) calendar days of such Software changes.

6.8 Licensee may elect to, arrange for additional on-site Services, or add or enhance other maintenance Services from Licensor upon mutually acceptable terms and conditions.

6.9 During the initial Support Term and any renewal thereof, at least ninety (90) [days prior to the expiration of each Support Term, Licensor shall notify Licensee in writing of such expiration including the cost of the renewal, and Licensee shall have the option to continue the SuppportSupport Services for such Software for any additional Maintenance Term selected by Licensee., and in the absence of

of 29


such notification the term may be extended by Licensee for up to an addition ninety 90 days_. Licensee shall notify Licensor in writing if it opts to continue Support Services for any such continuation prior to the end of the Term.

6.10 Licensee may terminate Support Services for any Software licensed hereunder, at any time in whole or in part, upon thirty (30) days' written notice to Licensor. . Upon such termination, Licensee shall be liable for payment of all unpaid initial and Support Services Fees for the remaining Term of the Agreement or any applicable Schedule thereto.

6.11 Licensor’s prices for Support Services provided to Licensee shall not increase by more than the percentage increase in the applicable list price for such Support Services; provided, further that any such increase shall also be limited to the lesser of the annual increase in CPI-U in the year of renewal or three percent (3%) of the initial Support Term Fee for each twelve (12) month period following the expiration of the initial Support Term6.11

6.12 .

6.13 .

6.11 6.12 Licensor and Licensee agree to any additional maintenance terms and conditions as specified in the relevant Schedule.

7. INVOICING; PAYMENT; TAXES

7.1 Licensor may invoice Licensee for the License Fee and any other initial one-time fees, including but not limited to Services fees set forth on the Schedule for the Software according to the terms of the applicable Schedule in accordance with Section 3.2 hereof. Invoices must be sent to the corporate name and address as specified in the applicable purchase order obtained from Licensee. Invoices will not be processed unless the purchase order number is referenced on the invoice and Licensee has received a fully executed Agreement and applicable Schedule(s). Each invoice properly rendered in accordance with this Agreement, and not in bona fide dispute shall be payable within ) forty-five (45) days after its receipt, unless otherwise specified herein. If any reimbursable expenses of Licensor are previously approved in writing by Licensee, they shall be separately stated on the invoice submitted by Licensor. A copy of Licensee’s Travel and Expense Policy is attached hereto as Appendix 1 .

[7.2] Licensee may purchase from time to time the right to use, as provided in this Agreement, additional Software Networks and/or access for additional Licensed UsersNetworks at the applicable Licensee Fees set forth on the Schedule (the “Additional License Fee”), and fees for Support Services [,, or if not included in the applicable Schedule, as negotiated in good faith by both parties.

7.3 Support Services Fees may be invoiced commencing upon the first live usage of the Software and annually (unless otherwise agreed) in advance thereafter, as specified in Article 6 above and on the applicable Schedule. Maintenance renewal fees may be invoiced to Licensee at any time after Licensor’s receipt of Licensee's notice of renewal and shall be payable within forty-five (45) days following the later of (i) receipt of such invoice by Licensee or (ii) the effective date of the renewal. Once renewed, the maintenance renewal fee shall be deemed to mean "Support Services Fee" for all purposes hereunder.

7.4 Licensee shall not be liable for interest or other late charges on late payments, nor shall Licensor use any methods of electronic repossession for any reason.

of 29



Not agreed, we need something included, to be discussed.


Pending review of policy


To be discussed, our agreements are term agreements with no early termination rights, other than special rights in the Schedule

[SPE: SPE Tax has proposed the following balanced language instead] 7.5 Licensee agrees to provide Licensor with a tax exemption certificate or to pay all applicable taxes

properly levied against or upon the Software and any services or their use hereunder. Each party shall be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its net income or gross receipts. All payments made by Licensee under this Agreement shall be made free and clear of and without deduction or withholding for or on account of any taxes, including sales, use, property, license, value added, excise, franchise, income, or similar taxes, unless such deduction or withholding is required by applicable law, in which case Licensee shall (i) withhold the legally required amount from the payment(s), (ii) remit such amount to the applicable taxing authority, and (iii) deliver to Licensor documentation evidencing such remittance.

7.6 During the term of this Agreement, Licensee may request Licensor to conduct on-site visits or online training. Following Licensee’s written request, Licensor will provide Licensee with a good faith estimate of the types and amount of expenses for any particular trip or online training session. [SPE: Addressed in Section 7.1]

[SPE: We have our own teleconferencing tools] [SPE: This is not applicable. None of our networks are or will be Nielsen rated]

8. WARRANTIES

8.1 Licensor warrants to Licensee that: (i) Licensor has all rights necessary to provide the Software, Documentation and other materials to Licensee and to perform the services as specified in this Agreement and warrants that such Software, Documentation and services are free of all liens, claims, encumbrances and other restrictions; (ii) Licensor will not violate any agreements with any third party as a result of performing its obligations under this Agreement, (iii) to the best of Licensor’s knowledge as of the Effective Date of this Agreement, the Software, Documentation, and services furnished by Licensor and Licensee's use of the same hereunder do not violate or infringe any patent, trademark, copyright, trade secret, or other proprietary right of any third party or the laws or regulations of any governmental or judicial authority; (iv) Licensee shall be entitled to use and enjoy the benefit of the Software, Documentation and services, subject to and in accordance with this Agreement; (v) there are neither pending nor threatened, nor to the best of Licensor’s knowledge contemplated, any suits proceedings or actions or claims which would materially affect or limit the rights granted to Licensee under this Agreement; and (vi) Licensee's use and possession of the Software, Documentation, and services hereunder shall not be adversely affected, interrupted or disturbed by Licensor or any entity asserting a claim under or through Licensor.

8.2 Licensor warrants that: (i) all tangible portions of the Software and services shall be free from any material defects in materials and workmanship and the Software shall conform to and operate in accordance with the Documentation provided to Licensee by Licensor hereunder and such other descriptions and materials as are attached, described and/or provided under this Agreement and (ii) the Documentation and other materials provided by Licensor hereunder shall faithfully and accurately reflect the Software provided to Licensee hereunder.

8.3 Licensor warrants that for a period of six (6) months after Licensee has accepted the Software in accordance with Section 3.2 ("Warranty Period"), it shall correct and repair any Error which prevents such Software from performing in accordance with the provisions of this Agreement and in accordance with the Documentation, and Licensor shall provide all services set forth in Article 6 at no additional charge to Licensee.

8.4 Licensor warrants to Licensee that Updates to the Software provided to Licensee hereunder shall not give rise to any additional costs and that the installation of such Update shall not degrade, impair or otherwise materially adversely affect the performance or operation of the Software provided hereunder.

of 29



Note: Support service fees start as of live date.


To be discussed, we need to be able to be reimbursed for all expenses, not just the language used in 7.1, and including our teleconferenceing tools if they are used.

8.5 Licensor warrants that any Services provided by Licensor hereunder shall be performed in a high quality, professional manner by a sufficient number of appropriately qualified and skilled personnel. In performance of the Services, Licensor will use best efforts to minimize any disruption to Licensee's normal business operations. Licensor also warrants, as to the Services that: (i) such Services shall be performed solely through its qualified individual employees and/or subcontractors (collectively, the “Personnel”), (ii) that Licensor shall be solely responsible for all employment matters (including payment of salary and wages) with respect to the Personnel; and (iii) when on Licensee premises, all Personnel shall observe the working hours, working rules, and safety and security procedures established by Licensee. Licensor shall, at its own expense and in accordance with applicable law, conduct reference and background checks on all Personnel, including verification of references and employment history, verification of driver’s license or other government issued identification and address, verification of social security number and that each individual is a U.S. citizen or properly documented person legally able to perform the Services, verification that the individual is not on the Specially Designated Nationals (“SDN”) list maintained by the Office of Foreign Assets Control of the U.S. Treasury Department, and verification that each individual has satisfactorily passed a criminal background check.

8.6 Licensor represents and warrants that the Software shall not contain any computer code that is intended to: (i) disrupt, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Software, or any other associated software, firmware, hardware, computer system or network (sometimes referred to as “viruses” or “worms”), or (ii) permit unauthorized access to the Software (sometimes referred to as “traps”, “access codes” or “trap door” devices), or any other similar harmful, malicious or hidden procedures, routines or mechanisms which could cause such programs to cease functioning or to damage or corrupt data, storage media, programs, equipment or communications, or otherwise interfere with Licensee’s operations. Licensor will ensure that no such known viruses, Trojan horses, worms, or time bombs are introduced within Licensee as a result of the Software. Additionally, Licensor: (i) shall provide timely information about technical vulnerabilities related to the Software and guidance regarding the Software’s exposure to such technical vulnerabilities, and (ii) warrants that it will take appropriate measures, including but not limited to testing the Software, to ensure that the risks associated with such technical vulnerabilities have been mitigated.

8.7 Licensor warrants that Licensor uses best efforts to test and protect the Software against viruses and other harmful elements designed to disrupt the orderly operation of, or impair the integrity of data files resident on, any data processing system and that the Software shall not contain any such virus or other element.

8.8 Licensor shall “pass-through” any software warranties received from the manufacturers or licensors of any third party software that forms a part of the Software and, to the extent granted by such manufacturers or licensors, Licensee shall be the beneficiary of such manufacturers’ or licensors’ warranties with respect to the Software.

8.9 13.1 Disclaimer. EXCEPT FOR THE LWARRANTIESWARRANTIES SET FORTH HEREIN AND IN ANY SCHEDULE: THE SOFTWARE, DISTRIBUTION, DOCUMENTATION AND ANY RELATED SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR AND ITS LICENSORS MAKE NO PROMISES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

9. ESCROW [SPE: Licensor wants to pay for Escrow. Sending separate email on this]

of 29



To be discussed, a pass thru fee to Licensee.

If Escrow of source code is identified on any Schedule hereto, , the terms of Exhibit B shall apply to, and be incorporated in, any escrow agreement entered into by the parties (the “Escrow Agreement”). The Escrow Agreement is “supplementary” to this Agreement within the meaning of Section 365(n) of the U.S. Bankruptcy Code (11 USC § 365 (n)) and/or any similar or comparable section of the U.S. Bankruptcy Code (as such sections may be modified, amended, replaced, or renumbered from time to time). If the Escrow Agreement and/or this Agreement are/is rejected by Licensor as a debtor in possession or a trustee or by any other person or entity under the U.S. Bankruptcy Code, then Licensee may elect to retain its right as provided in section 365(n). The Parties intend that no bankruptcy or bankruptcy proceeding, petition, law or regulation (and no other proceeding, petition, law or regulation of a similar nature in any state or foreign jurisdiction) will impede, delay or prevent the release of Escrowed Materials to Licensee in accordance with the provisions of the Escrow Agreement, and Licensor hereby conveys to Escrow Agent such rights (including intellectual property rights) as are necessary to allow Escrow Agent to lawfully make such release and perform the Escrow Agreement.

10. INTELLECTUAL PROPERTY INFRINGEMENT

10.1 Licensor hereby agrees to defend and hold harmless Licensee, its affiliates and their respective directors, officers, employees and agents (“Licensee Indemnitees”) from and against any third party claim, suit, demand, action or proceeding arising from or relating to any breach by Licensor of its representations and warranties of this Agreement or alleging a violation of any copyright, patent, trademark, trade secretorsecret or other proprietary right, and Licensor shall indemnify the Licensee Indemnitees against any and all judgments, liabilities, damages, costs and expenses arising therefrom. Licensor shall defend any such claim, suit, demand, action or proceeding instituted against the Licensee Indemnitees at Licensor’s sole cost and expense, and shall pay the amount of any such award, judgment or settlement thereof.

10.2 Licensor’sindemnificationLicensor’s indemnification obligationsshall be abated to the extent that the claim of infringement is caused by: (i) Licensee’s, or a third party’s modification of Software without Licensor’s prior written approval; (ii) Licensee’s failure to use corrections, Updates or enhancements that Licensor provided to Licensee that incurred no costsminimal cost to Licensee and were for the express purpose of avoiding infringement; provided, further that Licensee was given a reasonable period of time to implement such corrections, Updates or enhancements; (iii) Licensee’s use of Software in combination with any product or information not owned or developed by Licensor, except as prescribed by Licensor and/or allowed or contemplated by the Documenation; or (iv) Licensee’s breach of the license terms herein;.

10.3 In the event the Software or Documentation is held by a court, administrative body or arbitration panel of competent jurisdiction to constitute an infringement or its use is enjoined, Licensor shall, at its option, either: (i) procure for Licensee the right to continue use of the Software or Documentation; (ii) provide a modification to the Software or Documentation so that its use becomes non-infringing; or (iii) replace the Software or Documentation with software or documentation which is substantially similar in functionality and performance. If none of the foregoing alternatives is reasonably available to Licensor, then, in addition to and not in lieu of any claim for damages that Licensee may have, Licensor shall refund a pro-rata portion of the License Fee paid by Licensee for the Software based on a 60-month useful life.

10.4 Licensee hereby agrees to defend and hold harmless Licensor, its affiliates and their respective directors, officers, employees and agents (“Licensor Indemnitees”) from and against any third party claim, suit, demand, action or proceeding arising from or relating to any limitations set forth in Section 10.2

of 29



This was deleted, we require indemnification in the event a Sony action creates an infringement claim.


Can agree addition of patent, subject to limitation clause.

10.4 The indemnified party will notify the Licensor reasonably promptly in writing of any claim of which the indemnified party becomes aware. The Licensor shall have the right to designate its counsel of choice to defend such claim and to control the defense of such claim at the sole expense of the Licensor and/or its insurer(s), so long as such counsel is reasonably acceptable to the indemnified party. The indemnified party shall have the right to participate in the defense at its own expense. In any event, the Licensor shall keep the indemnified party informed of, and shall consult with the indemnified party in connection with, the progress of any investigation, defense or settlement. The Licensor shall not have any right to, and shall not without the indemnified party’s prior written consent (which consent will be in the indemnified party’s sole and absolute discretion), settle or compromise any claim if such settlement or compromise (i) would require any admission or acknowledgment of wrongdoing or culpability by the indemnified party, (ii) provide for any non-monetary relief to any person or entity to be performed by the indemnified party, or (iii) would, in any manner, interfere with, enjoin, or otherwise restrict any project and/or production, or the release or distribution of any motion picture, television program or other project, of Licensee or its subsidiaries or affiliates.

11: CONFIDENTIAL INFORMATION11.1 Licensor agrees not to disclose the identity of Licensee as a customer of Licensor, the existence or

nature of the relationship contemplated hereby or the business application for which Licensee intends to use the Software without the prior written consent of Licensee, which Licensee may withhold in its sole discretion.

11.2 All Confidential Information (as defined below) of the Disclosing Party are and shall remain the sole and exclusive property of the Disclosing Party and are to be treated by the Recipient as absolutely secret and confidential. Each party covenants and warrants that, without limitation as to time, it shall keep in confidence, maintaining proper security therefor, and shall not (i) use or allow to be used for its own benefit or for any purposes other than the performance of this Agreement, or (ii) disclose or reveal or allow to be disclosed or revealed to any person other than the Disclosing Party any Confidential Information of Disclosing Party. Without limiting the foregoing, (i) each party shall not negotiate with or offer or agree to sell, lease or otherwise transfer to any person or entity any Confidential Information of the other party or any system, data, report, study, program or other item which incorporates or utilizes such Confidential Information, and (ii) the other party’s name, logo, insignia, photographs or any other publicity pertaining to this Agreement, including but not limited to the existence of this Agreement, shall not be used in any magazine, trade paper, newspaper or other medium, or otherwise disclosed to any person, without the prior written consent of the other party. Neither party shall disclose the subject matter, existence or terms and conditions of this Agreement or the granting of the license hereunder, except as may be required by law or government regulations or pursuant to a court order or in any legal proceeding, or as may be necessary to assert rights under the Agreement, or as may be authorized in writing by the other party.

11.3 If either party breaches, threatens to breach or attempts to breach its obligations under Sections 11 herein, the other party may notwithstanding and not by way of limitation of any other remedies it may have for anticipatory or actual breach of this Agreement (including, without limitation, for damages), and subject always to Section 13.6 hereunder, seek an order enjoining the first party from violating this.

11.4 As used herein, the term “Confidential Information” means any information of disclosed by one party (the “Disclosing Party”) to the other party (the “Recipient”) in connection with this Agreement which is disclosed in writing, orally or by inspection and is identified as “Confidential” or “proprietary” or which a party has reason to believe is treated as confidential by the other party, ,, including but not limited to designs, drawings, plans, formulae, instructions, processes, programs, systems, theories, specifications, techniques, tapes, disks, disk racks, models, data, flow charts, documentation, processes, procedures, know-how, new product or technology information, prototypes, software (whether in object code or source code), manufacturing, development, or marketing techniques, development or marketing timetables, business strategies and development plans, supplier information, personnel information, customer information, pricing policies, financial information and any other

of 29


information of a similar nature, whether or not reduced to writing or other tangible form, and any other trade secret or non-public business information.

[SPE: Agree to mutual Confidentiality]

11.65 Information shall not be considered confidential to the extent, but only to the extent, that such information is: (i) already rightfully known to the receiving party free of any restriction at the time it is obtained from the other party; (ii) subsequently rightfully learned from an independent third party free of any restriction and without breach of this Agreement; (iii) is or becomes publicly available through no wrongful act of either party; or (iv) is independently developed by one party without reference to any confidential information of the other. Notwithstanding anything to the contrary herein, a Recipient may disclose the Confidential Information of the Disclosing Party pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the Recipient shall provide notice as soon as is reasonably practicable to the Disclosing Party and shall provide reasonable assistance to the Disclosing Party to obtain a protective order or otherwise prevent public disclosure of such Confidential Information and such Confidential Information shall only lose its confidentiality protection for purposes of such legal disclosure.

11.76 Upon expiration or termination of this Agreement, each party shall return to the other party all confidential information, including all copies thereof under its possession or control or under the possession or control of its affiliates or, at the Disclosing Party’s option, destroy or purge its own, and cause the purging of its affiliates, systems and files of all such Confidential Information of the Disclosing Party. The Recipient shall deliver to the Disclosing Party a written confirmation that such destruction and purging has been carried out. [SPE: We cannot agree to purging everything, but can agree to discontinue use of the software] Notwithstanding the foregoing, Licensee may retain historical reports, data exports and hard copies of the data generated by the Software. Upon written request, Licensee shall furnish to Licensor a statement from an authorized representative stating that said Software has been returned. [SPE: From Section 12.6 added additional language in Yellow]

12. DATA PRIVACY AND INFORMATION SECURITY

12.2 In the event that (i) any Confidential Information is disclosed by either party (including its agents or subcontractors), in violation of this Agreement or (ii) either party (including its agents or Subcontractors) discovers, is notified of, or suspects that unauthorized access, acquisition, disclosure or use of Confidential Information (“Security Incident”), Recipient shall notify the Disclosing Party immediately in writing of any such Security Incident. Recipient shall cooperate fully in the investigation of the Security Incident, indemnify and hold the Disclosing Party harmless for any and all damages, losses, fees or costs (whether direct, indirect, special or consequential) incurred as a result of such Security Incident, and remedy any harm or potential harm caused by such Security Incident.

.

:

TERM AND TERMINATION [SPE: Since Ad Sales data may also be accessed during online training we must have some controls in place, so have reinserted some clauses below]

12.1

12.3 To the extent that a Security Incident has been substantiated, is in regards to disclosure of Personal Data, is caused by Licensor, and gives rise to a need, in Licensee’s sole judgment, to provide (A) notification to public authorities, individuals, or other persons, or (B) undertake other remedial

of 29



There is no personal data based on the definition below.

measures (including, without limitation, notice, credit monitoring services and the establishment of a call center to respond to inquiries (each of the foregoing a "Remedial Action")), at Licensee’s request, Licensor shall, at Licensor’s cost, undertake such Remedial Actions. The timing, content and manner of effectuating any notices shall be determined by Licensee in its sole discretion.reasonable discretion. If a Security Incident is unsubstantiated, Licensee shall reimburse Licensor for any costs incurred.

12.4 To the extent that Licensee provides to Licensor, or Licensor otherwise accesses Confidential Information or Personal Data about Licensee’s employees, customers, or other individuals in connection with this Agreement, Licensor shall implement a written information security program (“Information Security Program”) that includes administrative, technical, and physical safeguards that ensure the confidentiality, integrity, and availability of Confidential Information and Personal Data, protect against any reasonably anticipated threats or hazards to the confidentiality, integrity, and availability of the Confidential Information and Personal Data, and protect against unauthorized access, use, disclosure, alteration, or destruction of the Confidential Information and Personal Data. In particular, the Licensor’s Information Security Program shall include, but not be limited, to the following safeguards where appropriate or necessary to ensure the protection of Confidential Information and Personal Data:

12.4.1 Access Controls – policies, procedures, and physical and technical controls: (i) to limit physical access to its information systems and the facility or facilities in which they are housed to properly authorized persons by establishing security perimeters with appropriate entry and exit controls; (ii) to ensure that all members of its workforce who require access to Confidential Information or Personal Data have appropriately controlled access, and to prevent those workforce members and others who should not have access from obtaining access through appropriate security measures (e.g. system time-outs, system lock-out after several failed login attempts, security alarm systems; (iii) to use authentication mechanisms (e.g. card-keys, passwords) to permit access only to authorized individuals and to prevent members of its workforce from providing Confidential Information or Personal Data or information relating thereto to unauthorized individuals; (iv) to separate logically data that is processed for different purposes;.; and (v) to encrypt and decrypt Confidential Informationpasswords and Personal Data where appropriate.data relayed in a non-readable format.

12.4.3 Security Incident Procedures – policies and procedures to detect, respond to, and otherwise address security incidents, including procedures to monitor systems and to detect actual and attempted attacks on or intrusions into Confidential Information or Personal Data or information systems relating thereto, and procedures to identify and respond to suspected or known security incidents, mitigate harmful effects of security incidents, and document security incidents and their outcomes.

12.4.6 Audit controls – hardware, software, and/or procedural mechanisms that record and examine access to facilities containing Confidential Information or Personal Data and activity including deletion, addition, or modification of data in information systems that contain or use electronic information, including appropriate logs and reports concerning these security requirements and compliance therewith.

12.4.7 Data Integrity – policies and procedures to ensure the confidentiality, integrity, and availability of Confidential Information and Personal Data and protect it from disclosure, improper alteration, or destruction.

12.4.8 Storage and Transmission Security – technical security measures (e.g. state-of-the-art firewallsindustry best practices )to guard against unauthorized access to Confidential

of 29


Information or Personal Data that is being transmitted over an electronic communications network, including a mechanism to encrypt electronic information whenever appropriate, such as while in transit or in storage on networks or systems to which unauthorized individuals may have accesspasswords and relay data in a non-readable format.

12.5 Licensee may request upon ten business days written notice to Licensor access to facilities, systems, records and supporting documentation in order to audit Licensor’s compliance with its obligations under or related to the Information Security Program. Audits shall be subject to all applicable confidentiality obligations agreed to by Licensee and Licensor, and shall be conducted in a manner that minimizes any disruption of Licensor’s performance of services and other normal operations.

12. TERM AND TERMINATION

12.1 This Agreement shall become effective upon the execution by both Licensor and Licensee and shall continue in duration for 60 months unless otherwise provided in Schedule or unless earlier terminated in accordance with this Agreement (“Term”). If any Schedule has a term that extends beyond the Term, any such Schedules shall continue to be controled by the terms and conditions of this Agreement for the remainder of the term of any such Schedule.

12.2 Either party may terminate this Agreement or the applicable Schedule if the other party breaches any material term or condition of this Agreement and fails to cure such breach within 30 days after receiving written notice of the breach from the non-breaching party; the non-breaching party may terminate this Agreement on written notice at any time following the end of such 30 day period.

. [SPE: Delete from the Agreement and agree to add the business terms fto the Schedule] 12.4 Termination for Insolvency. This Agreement (and all Schedules) may be terminated by either party with

immediate effect upon the other party’s Bankruptcy Event. “Bankruptcy Event” means the occurrence of any one or more of the following events in respect of a party hereto: (a) it ceases to carry on its business; (b) a receiver or similar officer is appointed for its business, property, affairs or revenues and such proceedings continue for 45 days; (c) it becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (d) proceedings under bankruptcy or insolvency laws are commenced by or against it and are not dismissed within 45 days.

12.5 Termination shall not, however, relieve either party of obligations incurred prior to the effective date of termination.

.[SPE: Duplicative. See Section 11.7] [SPE: Move to Section 11.7]

13. GENERAL

13.2 LIMITATION OF LIABILITY: ,

13.2.1 IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, OR FOR EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF APPRISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. This exclusion of liability for special, indirect or consequential loss or damage is intended to apply to

of 29



Need some term for the agreement, or right to terminate agreement other than breach or insolvency.


NOTE, two section 12s

damage or loss of a “commercial” nature such as, but not limited to, loss of profits or revenue, cost of capital, loss of use of equipment or facilities, or claims of customers due to loss of service. This exclusion is not intended to apply to: (i) loss or damage incidental to a default, termination, suspension or defect in Licensor’s products and services such as, but not limited to, additional managerial and administrative costs and expenses incurred in effecting a “cover” under a Licensor default; (ii) loss or damage to property or personal injuries (including death) directly caused by Licensor’s or Licensee’s negligence. ; and (iii) any loss or damage arising from any third party claims or proceedings in connection with Licensor’s (including its agents or subcontractors) breach of the Data Privacy and Information Security obligations under this Agreement

13.2.2 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY HEREUNDER FOR AN AMOUNT EXCEEDING THE GREATER OF FIVE] TIMES THE AMOUNTS PAID OR PAYABLE PURSUANT TO THIS AGREEMENT OR $1,000,000; provided, however, that the foregoing limitation of liability shall not apply to (i) liability arising from gross negligence or willful misconduct, (ii) liability arising from bodily injury (including death) or tangible property damage or (iii)Licensor’s indemnification obligations hereunder or (iv) any loss or damage arising from any third party claims or proceedings in connection with Licensor’s (including its agents or subcontractors) breach of the Data Privacy and Information Security obligations under this Agreement. Licensor liability arising from Licensor’s patent indemnification obligations hereunder shall be limited to two times the amounts paid or payable pursuant to this agreement.

13.3 NOTICES: Unless otherwise specified, to be effective, all notices relating to this Agreement shall be in writing and delivered personally (effective upon receipt) or sent by nationally recognized overnight delivery service (effective one (1) business day after delivery to such delivery service), or by confirmed telecopy/facsimile (effective upon receipt) to the addresses of the parties set forth at the beginning of this Agreement, to the attention of the undersigned; provided, however, that any Licensor notice of material breach to Licensee shall also be sent to:

Sony Pictures Entertainment Inc.10202 West Washington BlvdCulver City, CA 90232Attention: Procurement Department

with a copy to: Sony Pictures Entertainment Inc.10202 West Washington BlvdCulver City, CA 90232Attention: General CounselFax no: (310) 244-0510

Unless Licensor indicates otherwise, notices shall be sent to the signatory of the Schedule involved. Either party may change the address(es) or addressee(s) for notice hereunder upon written notice to the other in conformity with this section. All notices shall be deemed given and sufficient in all respects.

13.4 ASSIGNMENT: Neither party may assign this Agreement, any Schedule and/or any rights and/or obligations hereunder without the prior written consent of the other party; provided, however, that either party may assign this Agreement, any Schedule and/or any of its rights hereunder upon written notice to the other party without requiring the consent, to any Affiliate or successor pursuant to a merger, consolidation or sale, or to an entity which acquires all or substantially all of the business of the assigning party relating to this Agreement, provided however that the succeeding entity, as the assignee assumes all rights and obligations of the assigning party hereunder; provided, further that if any such assignee is owned or controlled by a competitor of the non-assigning party, then such assignment shall require the consent of the non-assigning party, which shall be in the non-assigning party’s sole and absolute discretion. For the purposes of this Section 13.5, a Change of Control, as

of 29



Not agreed, to be discussed.

defined herein, shall be deemed an assignment. “Change of Control” shall occur: (i) with respect to a party that is a Public Licensee (as defined herein), if as a result of any event (including but not limited to any stock acquisition, acquisition of securities convertible into or exchangeable for voting securities, merger, consolidation or reorganization) any one or more persons or entities who together beneficially own, directly or indirectly, more than 20% of the combined voting power of the then-outstanding securities of such party immediately prior to such event (the “Public Licensee Controlling Shareholder(s)”) together fail to own, after such event, more than 20% of the combined voting power of the then-outstanding securities of such party (or any successor, resulting or ultimate parent Licensee or entity of such party, as the case may be, as a result of such event); or (ii) with respect to a party which is not a Public Licensee (as defined herein), if as a result of any event (including but not limited to any stock acquisition, acquisition of securities convertible into or exchangeable for voting securities, merger, consolidation or reorganization) any one or more persons or entities who together beneficially own, directly or indirectly, more than 50% of the combined voting power of the then-outstanding securities of such party immediately prior to such event (the “Non-Public Licensee Controlling Shareholder(s)”) together fail to own, after such event, more than 50% of the combined voting power of the then-outstanding securities of such party (or any successor, resulting or ultimate parent Licensee or entity of such party, as the case may be, as a result of such event). “Public Licensee” means any Licensee or entity (i) whose securities are registered pursuant to the Securities Act of 1933, as amended, (ii) whose securities are traded in any national or international stock exchange or over the counter market or (iii) which is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended. This Agreement shall be binding upon and shall inure to the benefit of the parties' respective successors and permitted assigns. Any assignment in violation of the foregoing shall be null and void, and of no force or effect.

13.6 ARBITRATION OF DISPUTES: All actions or proceedings arising in connection with, touching upon or relating to this Agreement, the breach thereof and/or the scope of the provisions of this Section 13.6 (a “Proceeding”) shall be submitted to JAMS (“JAMS”) for binding arbitration under its Comprehensive Arbitration Rules and Procedures if the matter in dispute is over $250,000 or under its Streamlined Arbitration Rules and Procedures if the matter in dispute is $250,000 or less (as applicable, the “Rules”) to be held solely in Los Angeles, California, U.S.A., in the English language in accordance with the provisions below.

(a) Each arbitration shall be conducted by an arbitral tribunal (the “Arbitral Board”) consisting of a single arbitrator who shall be mutually agreed upon by the parties. If the parties are unable to agree on an arbitrator, the arbitrator shall be appointed by JAMS. The arbitrator shall be a retired judge with at least ten (10) years experience in commercial matters. The Arbitral Board shall assess the cost, fees and expenses of the arbitration against the losing party, and the prevailing party in any arbitration or legal proceeding relating to this Agreement shall be entitled to all reasonable expenses (including, without limitation, reasonable attorney’s fees). Notwithstanding the foregoing, the Arbitral Board may require that such fees be borne in such other manner as the Arbitral Board determines is required in order for this arbitration clause to be enforceable under applicable law. The parties shall be entitled to conduct discovery in accordance with Section 1283.05 of the California Code of Civil Procedure, provided that (a) the Arbitral Board must authorize all such discovery in advance based on findings that the material sought is relevant to the issues in dispute and that the nature and scope of such discovery is reasonable under the circumstances, and (b) discovery shall be limited to depositions and production of documents unless the Arbitral Board finds that another method of discovery (e.g., interrogatories) is the most reasonable and cost efficient method of obtaining the information sought.

(b) There shall be a record of the proceedings at the arbitration hearing and the Arbitral Board shall issue a Statement of Decision setting forth the factual and legal basis for the Arbitral Board's decision. If neither party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the Arbitral Board's decision shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles County Superior Court or, in the case of Licensor, such other court having jurisdiction over

of 29


Licensor, which may be made ex parte, for confirmation and enforcement of the award. If either party gives written notice requesting an appeal within ten (10) business days after the issuance of the Statement of Decision, the award of the Arbitral Board shall be appealed to three (3) neutral arbitrators (the "Appellate Arbitrators"), each of whom shall have the same qualifications and be selected through the same procedure as the Arbitral Board. The appealing party shall file its appellate brief within thirty (30) days after its written notice requesting the appeal and the other party shall file its brief within thirty (30) days thereafter. The Appellate Arbitrators shall thereupon review the decision of the Arbitral Board applying the same standards of review (and all of the same presumptions) as if the Appellate Arbitrators were a California Court of Appeal reviewing a judgment of the Los Angeles County Superior Court, except that the Appellate Arbitrators shall in all cases issue a final award and shall not remand the matter to the Arbitral Board. The decision of the Appellate Arbitrators shall be final and binding as to all matters of substance and procedure, and may be enforced by a petition to the Los Angeles County Superior Court or, in the case of Licensor, such other court having jurisdiction over Licensor, including but not limited to the San Francisco County Superior Court, which may be made ex parte, for confirmation and enforcement of the award. The party appealing the decision of the Arbitral Board shall pay all costs and expenses of the appeal, including the fees of the Appellate Arbitrators and the reasonable outside attorneys' fees of the opposing party, unless the decision of the Arbitral Board is reversed, in which event the costs, fees and expenses of the appeal shall be borne as determined by the Appellate Arbitrators.

(c) Subject to a party's right to appeal pursuant to the above, neither party shall challenge or resist any enforcement action taken by the party in whose favor the Arbitral Board, or if appealed, the Appellate Arbitrators, decided. Each party acknowledges that it is giving up the right to a trial by jury or court. The Arbitral Board shall have the power to enter temporary restraining orders and preliminary and permanent injunctions. Neither party shall be entitled or permitted to commence or maintain any action in a court of law with respect to any matter in dispute until such matter shall have been submitted to arbitration as herein provided and then only for the enforcement of the Arbitral Board’s award; provided, however, that prior to the appointment of the Arbitral Board or for remedies beyond the jurisdiction of an arbitrator, at any time, either party may seek pendente lite relief in a court of competent jurisdiction in Los Angeles or San Francisco County, California or, if sought by Licensee, such other court that may have jurisdiction over Licensor, without thereby waiving its right to arbitration of the dispute or controversy under this section. All arbitration proceedings (including proceedings before the Appellate Arbitrators) shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. Notwithstanding anything to the contrary herein, Licensor hereby irrevocably waives any right or remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other exploitation of any motion picture, production or project related to Licensee, its parents, subsidiaries and Affiliates, or the use, publication or dissemination of any advertising in connection with such motion picture, production or project. The provisions of this Section 13.6 shall supersede any inconsistent provisions of any prior agreement between the parties.

13.7 GOVERNING LAW: The substantive laws (as distinguished from the choice of law rules) of the State of California shall govern the validity and interpretation of this Agreement and the performance by the parties of their respective duties and obligations hereunder without regard to any conflict of laws principles that would result in the application of another jurisdiction’s laws. The parties expressly waive and disclaim the applicability of the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods to the fullest extent permitted by law.

13.8 MODIFICATION, AMENDMENT, SUPPLEMENT AND WAIVER: The provisions hereof constitute the entire agreement of the parties as to the matters covered and supersede any prior understanding not specifically incorporated herein. No changes hereto or waiver of any of the terms hereof shall be made except in writing signed by the parties hereto. The terms and conditions contained on any order form or other standard, pre-printed form issued by the Licensor shall be of no force and effect, even if such order is accepted by Licensee. In no event shall Licensee’s, acknowledgment, confirmation or

of 29


acceptance of such order, either in writing or by acceptance of delivery of the software or by use of the software, constitute or imply Licensee’s acceptance of any terms or conditions contained on a Licensor’s form. The terms, provisions or conditions of any purchase order or other business form or written authorization used by Licensee will have no effect on the rights, duties or obligations of the parties under, or otherwise modify this Agreement, regardless of the failure of Licensor to object to those terms, provisions, or conditions. No waiver by either Licensee or Licensor or any failure by the other to keep or perform any covenant or condition of this Agreement shall be deemed to be a waiver of any preceding or succeeding breach of the same, or any other covenant or condition, of this Agreement.

13.9 PRECEDENCE: In the event of any inconsistency between any attachment/exhibit/schedule and the terms set forth herein, the terms herein shall prevail.

13.10 SEVERABILITY: In the event any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions of this Agreement shall be unimpaired, and the invalid, illegal or unenforceable provisions shall be replaced by a provision, which, being valid, legal and enforceable, comes closest to the intention of the parties underlying the invalid, illegal or unenforceable provision.

13.11 CUMULATIVE REMEDIES: Except as expressly provided to the contrary herein, all remedies set forth in this Agreement are cumulative, and not exclusive of any other remedies of a party at law or in equity, statutory or otherwise.

13.12 HEADINGS: Headings are for reference and shall not affect the meaning of any of the provisions of this Agreement.

13.13 SURVIVAL. The provisions of Articles 2, 8, 10, 11, 12 and 13 of this Agreement shall survive any completion, rescission, expiration or termination of this Agreement.

13.14 EQUAL OPPORTUNITY. Each party agrees that pursuant to this Agreement, there shall be no discrimination based on race, religion, sex, age or national origin and it shall comply with applicable federal, state and local regulations pertaining to fair employment practices.

.

14. INSURANCE [SPE: Since we are putting Professional Services under this Agreement (rather than doing a separate Agreement), we must add our Insurance language]

14. INSURANCE

14.1 Prior to the performance of any service hereunder by Licensor, Licensor shall at its own expense procure and maintain the following insurance coverage for the benefit and protection of Licensee and Licensor, which insurance coverage shall be maintained in full force and effect until all of the Services are completed and accepted for final payment:

14.1.1 A Commercial General Liability Insurance Policy with a limit of not less than $3 million per occurrence and $3 million in the aggregate and a Business Automobile Liability Policy (including owned, non-owned, and hired vehicles) with a combined single limit of not less than $1 million, both policies providing coverage for bodily injury, personal injury( personal injury under Commercial General Liability) and property damage for the mutual interest of both Licensee and Licensor, with respect to all operations;

14.1.2 Professional Liability Insurance to include but not be limited to Technology Errors & Omissions; Software Errors & Omissions with a $1 million limit for each occurrenceclaim and $3 million in the aggregate, a claims made policy is acceptable providing there is no lapse in coverage during the term of this

of 29


Sony Pictures Entertainment, 06/03/13,

OK, - see additional wording for claims made policies)


Now that we know what services Licensor is providing, insurance coverages are added to this section.


Personal Injury should be covered under General Liability see change.


OK

Agreement and the policy will be in full force and effect three (3) years after the expiration and termination of this Agreement ; and

14.1.3 An Umbrella or Following Form Excess Liability Insurance policy will be acceptable to achieve the above required liability limits; and

14.1.4 Workers’ Compensation Insurance with statutory limits to include Employer’s Liability with a limit of not less than $1 million; and

14.1.5 Fidelity or Crime Policy/Bond for employee theft and dishonesty including third party property coverage in limits of not less than $250,000, which shall be included on the Certificate of Insurance with all other insurance requirements.

14.2 The policies referenced in the foregoing clauses 14.1.1, 14.1.2 and 14.1.3, shall name Sony Pictures Entertainment Inc., et al, its parent(s), subsidiaries, licensees, successors, related and affiliated companies, and its officers, directors, employees, agents, representatives and assigns (collectively, including Licensee, the “Affiliates”) as an additional insured by endorsement and shall contain a Severability of Interest Clause. The above referenced in the foregoing clause 14.1.4 shall provide a Waiver of Subrogation endorsement in favor of the Affiliated Companies. All of the above referenced liability policies The primary $1,000,000 Commercial General Liability insurance shall be primary insurance in place and stead ofto any insurance maintained by Licensee. No insurance of Licensor shall be co-insurance, contributing insurance or primary insurance with Licensee’s insurance. Licensor shall maintain such insurance in effect until all of the services hereunder are completed and accepted for final payment. All insurance companies, the form of all policies and the provisions thereof shall be subject to Licensee’s prior approval. Licensor’s insurance companies shall be licensedauthorized to do business in the state(s) or country(ies) where services are to be performed for Licensee and will have an A.M. Best Guide Rating of at least A:-:VII or better; provided also that in the event that Licensor’s insurer(s) is(are) based outside of the United States, Licensor’s insurance policy coverage territory must include the United States written on a primary basis and provide Licensee with a right to bring claims against Licensor’s polices in the United States, as evidenced on the certificate of insurance or in a confirmation of coverage letter. Any insurance company of the Licensor with a rating of less than A:-:VII will not be acceptable to the Licensee. Licensor is solely responsible for all deductibles and/or self insured retentions under their policies.

14.3 Licensor agrees to deliver to Licensee: (a) upon execution of this Agreement originala Certificates of Insurance and endorsements evidencing the insurance coverage herein required, and (b) renewal certificates and endorsements at leastwithin seven (7) days prior to the expiration of their receipt by Licensor’s insurance policies.i. Each such Certificate of Insurance and endorsement shall be signed by an authorized agent of the applicable insurance company, shall provide that not less than thirty (30) days prior written notice of cancellation is to be given to Licensee prior to cancellation or non-renewal, and shall state that such insurance policies are primary and non-contributing to any insurance maintained by Licensee. Should any of the above insurance policies of Licensor be cancelled before the expiration date(s) thereof, notice will be delivered in accordance with the policy or policies ’ provisions. Upon request by Licensee, Licensor shall provide a copy of each of the above insurance policies to Licensee. Failure of Licensor to maintain the Insurances required under this Section 14 or to provide original Certificates of Insurance, endorsements or other proof of such Insurances reasonably requested by Licensee shall be a breach of this Agreement and, in such event, Licensee shall have the right at its option to terminate this Agreement. according to the terms of Section 12.2. Licensee shall have the right to designate its own legal counsel to defend its interests under said insurance coverage at the usual rates for said insurance companies in the community in which any litigation is brought.its own expense.

RECRUITMENT. To the fullest extent permitted under applicable law, each party to this agreement agrees not to solicit for employment any employee or agent who is currently employed or affiliated (or who was employed or affiliated in the last twelve (12) months) by the other party unless prior written

of 29



Sections deleted by Sony, to be discussed.


OK.


Andra, Sec 12.2 has a 30 day cure wording to rectify any breach by either party. For insurance purposes, this is way too long for us to go without insurance docs from this company. We could put that “Licensee has the option to terminate this Agreement if Licensee does not receive the required valid insurance documents in Section 14 within ten (10) business days.”


OK


New wording per insurance industry.


Please clarify???


OK


OK


OK


OK


OK


I’m not sure why they are putting $1 MM General Liability when we are asking for $3 MM. What limits do they have for their General Liability and do they have an Umbrella policy to increase to $3 MM in liability limits?


This should be All of the above referenced “liability”


We ask to be add’l insured under Professional Liability and that this policy is to have a severability of interest clause. Can they do this?


If they are on our premises, they need to have Crime or Fidelity insurance with third party property coverage. This extends to theft coverage of any property of SPE by Licensor’s employees or subcontractors.


Wording for claims-made policies

permission is obtained from the other party; provided however, nothing herein shall restrict either party from generally advertising employment and consulting opportunities.

PURCHASE ORDERS The terms, provisions or conditions of any purchase order or other business form or written authorization used by Licensee will have no effect on the rights, duties or obligations of the parties under, or otherwise modify this Agreement, regardless of the failure of Licensor to object to those terms, provisions, or conditions.

IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of the Effective Date.

[__WIDEORBIT INC. ]“Licensor”:

SONY PICTURES ENTERTAINMENT INC.“Licensee”:

By: By:

Name: Name:

Title: Title:

Date: Date:

of 29



Why are these two paragraphs under Sec 14 Insurance? I don’t think they relate.

EXHIBIT A [SPE: This Form will remain in as a blank template]

Form of

Schedule

Schedule Number_______ Schedule Effective Date___________

This Schedule #__ (the “Schedule”) is issued pursuant to the License Agreement between [Sony Pictures Entertainment Inc.] (“Licensee”), and [Name of Licensor] (“Licensor”) dated ______, 20__ (the "Agreement"). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Agreement.

Beta Test: Trial License:Test or Trial Period:Party Responsible for Installation:

Scheduled Delivery Date:

Software Licensed Units License Fees

Maintenance Fees

(not to exceed 15% of

License Fee)

License Fees for Additional Licensed Units

Quantity Unit Fee Quantity

Total License Fees:Total Maintenance Fees:Total Fees:

Definition(s) of Licensed Units

[Insert definitions of Licensed Units, e.g., “User” means . . . .]

Maintenance Term: Name and Address of Escrow Agent(if Escrow Provided):

Maintenance Fee Paid (upon expiration of Warranty Period): (select one) annually___ quarterly monthly

[Additional Maintenance Terms and Conditions: Add SLAs and other maintenance procedures where appropriate – not legal terms]

IN WITNESS WHEREOF, the parties hereto have duly executed this Schedule as of the Schedule Effective Date.

[INSERT NAME OF LICENSOR]: [SONY PICTURES ENTERTAINMENT INC.]:

By: By:

Name: Name:

Title: Title:

of 29



We don’t license based on units, we license based on networks and channels.

Schedule

Schedule Number_1______ Schedule Effective Date___________

This Schedule #_1_ (the “Schedule”) is issued pursuant to the License Agreement between Sony Pictures Entertainment Inc. (“Licensee”), and [Name of Licensor] (“Licensor”) dated ______, 20__ (the "Agreement"). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Agreement.

Scheduled Delivery Date:[SPE: All of these Terms in the table below are not defined in the Agreement. Please add these under Section 1. of the Agreement] [

Software Name

Station Location License Fee

Training and Installation

Fee

Automation Integration

Accounts Receivable Import Fee

Historical Revenue

Import Fee

Max Man-days

T&I

BASEMonthly Support

Services Fee

.

Licensee understands that installation and operation of Software requires a high-speed connection to the public Internet at each Station twenty-four (24) hours a day, seven (7) days a week. A high-speed connection is defined as a connection with a minimum speed of 512K. Licensee also agrees that it will maintain the high-speed connection throughout the Term of the applicable Schedule and that Licensor shall not be obligated to provide Services on Software if such high-speed connection is not in operation, though Services fees for support will continue to accrue during any such connectivity outage.License and Support Term: (“Term”): Name and Address of Escrow Agent(if Escrow Provided):[SPE: Please add a description of the Support Services]

Support Services Fee Paid (select one) annually___ quarterly monthly

[Additional Maintenance Terms and Conditions: Add SLAs and other maintenance procedures where appropriate – not legal terms]

[SPE: Agree to pay for travel and expenses. What are the estimated costs? Where are these people traveling from?]

of 29



Estimate to be provided.

The Training and Installation fee assumes offsite and onsite man-days and that all onsite training included in the above will be conducted at the respective Station location, and allotted at a maximum number of man-days as indicated in the table above. . If Licensee requests more Installation and Training days during the initial installation period, Licensee will be invoiced in accordance Licensor $125 per hour . [SPE: This was the hourly rate for the Professional Services quoted ] If total Training and Installation days are not used in full, Licensee will be issued a training credit for the unused days, which may be applied toward future on-site training, Live Meeting training sessions, or recorded training modules as negotiated with Licensor.

Automation Integration fees assume the integration of one historical system. If additional systems integration is required, the rate of $125 per hour Standard Rates will apply for any required supplemental integration services. [.

Licensor User ConferenceLicensor has agreed to waive the registration fee for one Licensee user to attend the 2013 user conference, and to make available up to three additional user registrations at a discount of $900 each off the standard registration fee. Licensee will be responsible for all travel and related expenses.

Payment TermsThe License, Training and Installation, Automation Integration, Accounts Receivable Import, and Historical Revenue Import fees are due as follows: 50% upon execution of the License Order SheetSchedule and 50% upon the Launch of the respective Station. [SPE: Again, please define all terms ( Automation Integration, Accounts Receivable Import, and Historical Revenue Import fees, Launch) and add in Section 1. of the Agreement]

Expenses will be invoiced as incurred and in accordance with Section 7 of the Agreement.

Licensee shall pay Support Services Fees for Software and the Integrations for the Networks as scheduled in the table above following Launch in accordance with Section 7.3 of the License Agreement., subject to the annual escalator as defined below. If Licensee elects to terminate this Schedule other than for cause in accordance with Section 12.2 of the Agreement, Licensee shall be liable for payment of all unpaid initial and monthly Services fees (either outstanding or due in the future) for the remaining Original Term and any relevant Renewal Term (as may be specified in the applicable Schedule) as well as any other outstanding fees and charges as agreed upon in the applicable Schedule (the “Early Termination Fee”). The Early Termination Fee is due and payable within fifteen (15) days of Licensee’s notice to Licensor to terminate this Schedule. For clarity, no right is granted to terminate this Schedule with respect to any Station and Licensee has no right to terminate this Schedule on a Station-by-Station basis.

Licensee may cancel the license and support for any StationNetwork at any time if such new StationNetwork ceases operation or ceased selling advertising by giving Licensor at least thirty (30) days advanced written notice of such cancellation. Only. In such case, in regards to the total annual fees forcancelled license only, the remainder of that calendar year willEarly Termination Fee shall be defined as all applicable unpaid initial and monthly Services fees due. through the Network termination date and 12-months of future monthly Service fees. . There will be no additional penalties or payments for the remainder of the contract term.

Where a Licensee Network has ceased selling advertising, the fees will be reduced to 25% of the contracted rate , from the date Licensor receives notice of such change, or the date Licensee ceases running advertising, whichever is later.

Annual escalatorThe “Annual Escalator” is defined as x% plus any increase in the CPI Index.

The CPI Index is defined as the All Items CPI for All Urban Consumers, CPI-U – base period 1984, as published by the U.S. Bureau of Labor Statistics. The annual adjustment increase in the CPI Index will be

of 29



The $125 rate is for training and installation; for automation integration development work may also be required with is at a different rate.

calculated utilizing the most recently available 12-month data as of the anniversary of the Launch Date, and utilized for all Stations during the subsequent 12-month period.

IN WITNESS WHEREOF, the parties hereto have duly executed this Schedule as of the Schedule Effective Date. [INSERT NAME OF LICENSOR]: SONY PICTURES ENTERTAINMENT INC.:

By: By:

Name: Name:

Title: Title:

of 29


EXHIBIT B [SPE: Reinserted our original language]

Escrow Terms and Conditions

[1.] Licensor shall deposit, keep, and maintain current, a copy of the source code, object code, and Documentation for the Software (the “Escrowed Materials”) in escrow with anLicensor’s escrow agent acceptable to Licensee (the “Escrow Agent”). InAs long as Licensee is not in breach of the Agreement and is up to date in the payment of all fees hereunder, in the event that (i) Licensor discontinues maintenance services for the Software; (ii) Licensor materially breaches this Agreement; or (iii) or (ii) any proceedings are commenced by or forin regards to Licensor under any bankruptcy, insolvency or debtor’s relief law, or that are not withdrawn or dismissed within one hundred twenty (120) days of such filing or (iii)Licensor dissolves, discontinues its business or operations or becomes insolvent, or in the event a court of competent jurisdiction appoints a receiver, custodian, assignee, trustee, sequestrator (or other similar official) of Licensor or for any substantial part of its property or orders the winding up or liquidation of Licensor, then Licensee may instruct the Escrow Agent to deliver a copy of the Escrowed Materials directly to the Licensee. Licensor hereby grants Licensee a world-wide, perpetual, fully paid-up, irrevocable license to modify, enhance, translate, convert, recompile, upgrade and otherwise prepare derivative versions of the Escrowed Materials Licensee receives in the manner provided herein, including the right to authorize others to do the foregoing on Licensee’s behalf in support of Licensee’s authorized use of the Software. for the remaining Term and according to the terms of the Agreement and any Schedule thereto. In the event Licensee receives the Escrowed Materials in the manner provided herein, there will be no additional fees charged. Licensee shall have the right at any time to contact the Escrow Agent for purposes of confirming the existence of the source code, object code and documentation, including updates thereto, and for verification of the instructions to the Escrow Agent to release the Escrowed Materials as set forth in a separate written escrow agreement between the Escrow Agent, Licensor and Licensee.

[2.] In the event Licensee is receiving source code pursuant to any Schedule or Escrow Agreement, the Documentation shall include the source code for the related Software, with detailed program code and documentation relating to the development, maintenance and use of the source code (including assembly, linkage and other utilities) in a machine readable form and all associated materials ("Source Code"). In addition, Title in such released material shall remain with Licensor shall provide such Updates to the Source Code as they become available. .

1.[3.] The Escrow Agreement shall contain the following language: “Any licenses granted under the Escrow Agreement or which are provided pursuant to the Escrow Agreement are intended to be executory licenses of rights in intellectual property as contemplated by section 365(n) of the U.S. Bankruptcy Code (11 USC § 365(n)), and/or any similar or comparable section of the U.S. Bankruptcy Code (as such sections may be modified, amended, replaced, or renumbered from time to time). In the event that Licensor becomes a debtor under the U.S. Bankruptcy Code, it is the intent of the parties that Licensee shall have all benefits granted to licensees under the provisions of the U.S. Bankruptcy Code including, without limitation, section 365(n) of the U.S. Bankruptcy Code and/or any similar or comparable section of the U.S. Bankruptcy Code (as such sections may be modified, amended, replaced, or renumbered from time to time).”

of 29


APPENDIX 1TRAVEL AND EXPENSE POLICY

[SPE: The purpose of this policy is for SPE to have some type of governance and oversight]

PAYMENT FOR EXPENSES

Licensor shall be reimbursed for Licensor’s reasonable, ordinary and necessary out of pocket expenses of a business character reasonably incurred by Licensor for travel in connection with the performance of Licensor’s services. Upon request Licensor shall provide a good faith estimate of all such travel and expenses for Licensee’s prior approval. Expenses shall not be subject to any mark-up or multiplier.

GENERAL

All invoices for business related travel cost and other expenses shall include an itemized listing supported by copies of receipts from Licensor’s expense accounts, copies of bills and invoices, and miscellaneous supporting data. ., other than those expenses covered by the per diem. If charged to the Licensee, all travel either to Licensee job site or from Licensee job site to other locations shall be approved in writing in advance by Licensee. Time for travel will not be reimbursed except for travel during normal business hours

A. Licensee’s Travel Department

Where possible, travel and hotel arrangements that are chargeable to the Licensee shall be made through Licensee’s travel department (310/244-8711) to ensure the best rates, or as otherwise authorized by Licensee.. . Hotel recommendations by Licensee’s travel department shall be to a medium business class standard or better.

B. Auto mileage

With the exception of Provision I herein, auto mileage will be reimbursed at 44.5 cents per mile, or the current rate as specified by the Internal Revenue Service Mileage reimbursement is for round-trip with origination at Licensee job site, excluding Licensor’s travel to and from home/hotel.use of personal car..

C. Air Travel

Airfare will be reimbursed based on the most direct route at economy or coach class travel rates. Upgrading (coach to a higher class) of airline tickets will be reimbursed only when approved by Licensee, and only when the business schedule requires immediate travel and only higher class accommodations are available. Downgrading (exchange) of airline tickets for which Licensor receives financial or personal gain is not permitted. If a trip is postponed, reservations should be canceled immediately. Copies of passenger receipts shall be provided to Licensee at the time reimbursement is requested.

Travel arrangements should be made in advance of travel as early as possible (preferably three weeks) to take advantage of advance reservation rates.

D. Should Licensor choose alternative hotel and travel arrangements, other than those recommended by Licensee’s Travel Department, Licensee shall reimburse up to the amount(s) which would have been charged by Licensee’s recommended choices.

E. Combining Business Travel with Personal Travel

of 29



We need either this sentence or to delebe D


Frequently we travel on weekends which is why we charge half rate, if we can only travel during business hours this will be more expensive.

Licensor may combine personal travel with Licensee business only if the personal travel does not increase costs to the Licensee. Licensor should make arrangements for all personal travel. Licensee will not manage, or be responsible for, any Licensor personal travel.

F. Air Travel Insurance

Licensee does not pay for or provide air travel insurance.

G. Accommodations

Licensee will reimburse hotel room fees at the preferred corporate rate. Licensee may reimburse hotel room fees at the standard rate based on single room occupancy in cases where a corporate rate is not available.

H. Laundry

Laundry and dry cleaning charges will only be paid if: (1) Licensor is on travel for Licensee for a period in excess of six (6) consecutive days; or (2) Licensor is temporarily lodged near Licensee’s site for more than 30 consecutive days.

I. Entertainment

Licensee will not pay for the rental of premium channel movies, use of health club facilities or other forms of entertainment.

J.

J. Auto Rental

If required, Licensee will pay for reasonable car rental charges. . Such arrangements are to be made through Licensee’s travel department (310) 244-8711, or as otherwise authorized by Licensee. Licensor is expected to request the rental of an economy car. Prior to contacting Licensee’s travel department, prior approval shall be obtained from Licensee’s Procurement Department.

K. Meals and incidentals

Per diem or meal reimbursement shall be as pre-approved by Licensee prior to the start of the Services. For Licensor travel on behalf of Licensee, meals will be reimbursed on the actual cost up to a maximum of $80.00 per day ($100/day for New York and Japan) of travel. In lieu of itemizing meal expenses and submitting receipts, Licensor may claim the standard meal reimbursement of $15.00 per diem for the duration of the travel. at the US government per diem rate..

For Licensor temporarily lodged near Licensee’s site for more than 40 consecutive working days, in lieu of a daily meal reimbursement, groceries will be reimbursed at the actual cost to a maximum of $500 per month. In lieu of itemizing grocery expenses and submitted receipts, the Licensor may claim the standard groceries reimbursement of $250 per month for the duration of their job required stay.

Receipts from Licensor are required for all meals/groceries. In order to be reimbursed, meal/grocery documentation (itemized if possible), such as, credit card receipts or cash register tape, must be submitted. Licensee will not reimburse for alcoholic beverages.

L. Telephone Usage of 29



Move part to ‘ground transportation’ where some was already covered and some contradicted this section.

Telephone reimbursement shall be as pre-approved by Licensee prior to the start of the Services. Licensor shall submit documentation regarding all telephone calls charged to Licensee. Documentation must include the name of the party being called and the purpose of the call. Licensee will pay for one business call upon arrival and one call prior to departure, but will not pay for additional business calls unless directly related to the Services. Personal telephone calls are not reimbursable unless Licensor is on travel for the Licensee for more than three consecutive days, or the Licensor is temporarily lodged near Licensee’s site for more than three consecutive days. In such cases one call costing no more than $5.00 is permitted once a day.

M. Ground Transportation

. Ground transportation shall be as pre-approved by Licensee prior to the start of the Services. Public transportation should be used whenever possible; however, if necessary, rental car expenses, in accordance with Section I herein, including gas actually purchased, will be reimbursed for authorized travel only. Such arrangements are to be made through Licensee’s travel department (310) 244-8711, or as otherwise authorized by Licensee. Cab fare (on a shared basis whenever possible) is reimbursable. Receipts are required to document all ground transportation charges.

Licensor shall rent the lowest automobile classification appropriate for the size or purpose of the group using the vehicle.

1-2 Travelers Compact/Economy1-3 Travelers Medium/Intermediate4-5 Travelers Full Size/Standard Equipment6+ Travelers Van

Licensor must fuel rental automobiles prior to turn-in as rental companies normally add a large service charge to fuel costs.

N. Tolls and Fees

Transportation-related tolls and fees incurred while on Licensee business are reimbursable at actual cost.

O. Baggage Handling

Baggage handling service fees are reimbursable at standard reasonable rates.

P. Other Business Expenses

Other business expenses shall be as preapproved by Licensee prior to the start of the Services. Supplies, equipment rental, reprographics and facsimile expenses may be reimbursed when traveling on Licensee business. Such expenses shall be billed at cost.

Q. Non-Allowable Expenses

Licensee will not provide any reimbursement for personal entertainment expenses, alcoholic beverages, travel expenses for family members, use of health club facilities, movies in hotels, personal items, charitable contributions, or for any other type of expense not listed above.

of 29


master software license agreement - … · web viewthis master software license agreement...

Documents