Automated Media Processing Solutions, Inc. dba Equilibrium

DeBabelizer® Pro Server User License Agreement 

IMPORTANT:  Your use and distribution of this software is subject to the terms and conditions set forth below.  Your installation and use of the software indicates your acceptance of these terms and conditions.  

1.	License.
1.1.	Grant.  Subject to the terms of this Agreement, Equilibrium grants to Customer a limited, non-exclusive, non-transferable license without the right to sublicense, to install and use Equilibrium’s DeBabelizer Pro Server software (the “Software”), in object code or executable code format only, and the accompanying documentation (the “Documentation”) solely for Customer’s internal business use.  The Software may only be used by or on behalf of Customer, at the Location(s) given to generate the License Key, on the specific server(s) given to generate the License Key, for the sole purpose of Customer automating the the production of its media (“Content”) and saving Content to an intranet location or Zipped and delivered via ftp or e-mail.   The Software and the Documentation are referred to collectively in this Agreement as the “Licensed Materials.”  Except for the rights expressly granted herein, no other rights are granted to Customer with respect to the Licensed Materials and all rights (other than those expressly granted herein), title and interest in the Licensed Materials shall at all times remain the property of Equilibrium or Equilibrium’s licensors.
1.2.	Additional Restrictions on Use.  Customer shall not, and shall not permit any third party to: (i) modify or create any derivative work of any part of the Licensed Materials, (ii) permit any parent, subsidiaries, affiliated entities or third parties to use the Licensed Materials, (iii) process or permit to be processed the media, images or data of any other party, (iv) rent, lease or loan the Licensed Materials, or (v) use the Licensed Materials for third-party training, commercial time-sharing or service bureau use.  Customer agrees that only Equilibrium shall have the right to maintain, enhance, or otherwise modify the Licensed Materials.  Customer further agrees to comply with Section 9 of this Agreement. 
1.3.	No Transfers.  Under no circumstances shall Customer sell, license, sublicense, publish, display, distribute, assign or otherwise transfer to a third party the Licensed Materials or any copy thereof, in whole or in part, without Equilibrium’s prior written consent.
1.4.	Copies.  On receipt of payment of the License Fees, Equilibrium will provide one (1) copy of the Licensed Materials in digital form delivered via the internet.  Customer shall not copy the Licensed Materials except for loading the Software into computer memory for the purpose of executing the program.  Customer may make one (1) copy of the Licensed Materials solely for back-up purposes, provided that such copies shall include Equilibrium’s copyright and any other proprietary notices that appear on the original copies of the Licensed Materials.  Any copies of the Software or Documentation made by Customer are, and shall remain, the exclusive property of Equilibrium.
1.5.	No Reverse Engineering.  Customer shall have no rights to any source code for the Software.  Customer agrees that it shall not cause or permit the disassembly, decompilation or reverse engineering of the Software or otherwise attempt to gain access to the source code to the Software.  If applicable law requires access to source code for some purpose, and Customer desires access for that required purpose, Customer shall notify Equilibrium, and Equilibrium shall have the option, in its discretion, to (i) perform the work to derive any required information at Equilibrium’s usual consulting rate, or (ii) allow Customer access to source code solely for the legally required purpose.
1.6.	Reservation of Rights.  Equilibrium reserves all rights not otherwise expressly granted in this Section 1.
1.7.	Content.  The Customer shall provide and be solely responsible for the Content.  As between Equilibrium and Customer, the Content will remain the property of the Customer.
2.	Payment; Taxes.
2.1.	License Fees.  In consideration for the license granted by Equilibrium under this Agreement, Customer shall pay Equilibrium the fees in the amounts according to the agreed upon Equilibrium Price Quote in accordance with the payment terms thereto and final Customer’s Purchase Order (the “Fees”).  If a new major release of the Software becomes available to Equilibrium's other customers within ninety (90) days after the Effective Date, then Customer will be entitled to receive such new release at no additional charge.  Any amounts not paid when due shall accrue interest at the lesser of one and one-half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less. All amounts referred to in this Agreement are in United States dollars.
2.2.	Taxes.  Customer shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Equilibrium’s net income.  Customer agrees to hold Equilibrium harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties or assessments.
3.	Ownership. 
	Equilibrium or its licensors own and shall retain all proprietary rights, including all patent, copyright, trade secret, trademark and other intellectual property rights, in and to the Licensed Materials and any corrections, bug fixes, enhancements, updates or other modifications thereto, whether made by Customer, Equilibrium or any third party. Customer shall have no right to receive any such corrections, bug fixes, enhancements, updates or other modifications.  Customer acknowledges that the license granted under this Agreement does not provide Customer with title to or ownership of the Licensed Materials, but only a right of limited use under the terms and conditions of this Agreement.  Customer shall keep the Licensed Materials free and clear of all claims, liens and encumbrances.
4.	Confidential Information.  
Customer agrees that the Licensed Materials contain confidential information, including trade secrets, know-how and other information, that is the exclusive property of Equilibrium.  During the period this Agreement is in effect and at all times after its termination, Customer and its employees and agents shall maintain the confidentiality of this information and shall not sell, license, sublicense, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such information except as authorized by this Agreement.  Customer shall not disclose any such information concerning the Licensed Materials to persons who are not employees of Customer without Equilibrium’s prior written consent.  Customer agrees that it will take appropriate action by instruction, agreement or otherwise with Customer’s employees to satisfy its obligations under this Agreement with respect to use, protection and security of Equilibrium’s confidential information.  Customer agrees to immediately notify Equilibrium of the unauthorized disclosure or use of the Software or Documentation and to assist Equilibrium in remedying such unauthorized use or disclosure.  It is further understood and agreed that money damages would not be a sufficient remedy for any breach of Customer’s obligations under this Section 4 by Customer, its employees or agents.  In the event of any such breach, Equilibrium shall be entitled to seek equitable relief, in addition to any other rights or remedies provided by law.
5.	Disclaimer of Warranties.
The Licensed Materials are provided “as is” with no warranty whatsoever.  Equilibrium shall not have any obligation to provide any corrections or bug fixes for the Licensed Materials, although Equilibrium may choose to do so.  EQUILIBRIUM AND ITS LICENSORS, IF ANY, MAKE NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE LICENSED MATERIALS OR OTHER ACCOMPANYING MATERIAL OR SERVICE, AND EQUILIBRIUM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.  EQUILIBRIUM DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE OR OTHER USE OF THE LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE OR WILL NOT CAUSE DAMAGE OR DISRUPTION TO CUSTOMER’S DATA, COMPUTERS OR NETWORKS.
6.	Infringement.  
Equilibrium shall defend or settle, at its own expense, any action against Customer to the extent based upon a claim that the Software infringes any United States patent or copyright and will pay such damages or costs as are finally awarded against Customer attributable to such claim, provided that Customer (i) notifies Equilibrium promptly in writing of any such action, (ii) gives Equilibrium sole control of the defense and/or settlement of such action, and (iii) gives Equilibrium all reasonable information and assistance (at Equilibrium’s expense excluding time spent by Customer’s employees or consultants).  Should the Software become, or in the opinion of Equilibrium be likely to become, the subject of such an infringement claim, Equilibrium may, at its option (i) procure for Customer the right to use the Software free of any liability; (ii) replace or modify, in whole or in part, the Software to make it non-infringing; or (iii) remove Software, or part thereof, and refund the aggregate payments paid therefor by Customer, depreciated on a two (2) year straight line basis.  Equilibrium assumes no liability hereunder for: (i) any method or process in which the Software may be used; (ii) any compliance with Customer’s specifications; (iii) use of other than a current unaltered release of the Software; or (iv) the combination, operation or use of the Software with non-Equilibrium programs or data if such infringement would have been avoided by the combination, operation or use of the Software with other programs or data.  THIS SECTION 6 SETS FORTH EQUILIBRIUM’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS.
7.	Limitation of Liability.
Customer agrees that Equilibrium’s liability hereunder for damages arising from performance or nonperformance of the Software, including but not limited to liability for patent and copyright infringement, shall be as set forth above in Sections 5 and 6.  IN NO EVENT SHALL EQUILIBRIUM’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER TO EQUILIBRIUM HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.  EQUILIBRIUM WILL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY CLAIM OR DEMAND AGAINST CUSTOMER BY ANY OTHER PARTY.  IN NO EVENT WILL EQUILIBRIUM BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF EQUILIBRIUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  CUSTOMER ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.	Term and Termination.
8.1.	Term.  The term of this Agreement shall commence upon the Effective Date and be in effect for a term of thirty (30) days (the “Evaluation Period”).  At the expiration of the Evaluation Period, the term of this Agreement will automatically extend for an indefinite period of time, subject to Section 8.2 of this Agreement. 
8.2.	Termination. Customer shall have the right to terminate this Agreement upon expiration of the Evaluation Period, with or without cause, provided that Equilibrium receives written notice of termination within five (5) business days following the expiration of the Evaluation Period.   Either party shall have the right to terminate this Agreement and the license granted herein in the event:  (i)  the other party fails to comply with any of the terms and conditions of this Agreement and such default has not been cured within thirty (30) days (or if during the Evaluation Period, within five (5) days) after receiving written notice of such default from the other party; or (ii)  the other party terminates or suspends its business, or has wound up or liquidated, voluntarily or otherwise.
8.4.	Effect of Termination.  In the event Customer terminates this Agreement at the end of the Evaluation Period pursuant to Section 8.2, Customer shall not be obligated to pay to Equilibrium any fees under this Agreement.  The rights and obligations of Equilibrium and Customer in Sections 2.1, 3, 4, 5, 7, 8 and 10 shall survive termination of this Agreement.  Within five (5) days after termination of this Agreement, Customer shall return to Equilibrium or destroy, at Customer’s expense, the Licensed Materials, including all copies thereof, and deliver to Equilibrium a certification, in writing signed by an officer of Customer, that the Licensed Materials and all copies thereof have been returned or destroyed, as requested by Equilibrium, and their use discontinued.  Nothing contained herein shall limit any other remedies that Equilibrium may have for the default of Customer under this Agreement nor relieve Customer of any of its obligations incurred prior to such termination.
9.	Restrictions During Evaluation Period.
9.1.	Acknowledgement of Customer Intent.  During the Evaluation Period, Customer represents to Equilibrium that Customer (i) will install and use the Licensed Materials solely for Customer’s own internal evaluation of the Software; (ii) has a bona fide intent to evaluate the Software with a view towards extending this Agreement; (iii) will evaluate the Software in good faith; and (iv) will, upon request by Equilibrium, provide to Equilibrium the results of Customer’s evaluation of the Software.
9.2.	Restricted Access.  During the Evaluation Period, Customer will grant access to the Licensed Materials only to a limited number of Customer’s employees as is reasonable for Customer to carry out its evaluation of the Software.  
10.	Miscellaneous.
10.1.	Assignment.  This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.  Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, without Equilibrium’s prior written consent.  Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect.  
10.2.	Entire Agreement.  This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, with respect to the matters covered by this Agreement.  Customer agrees that it has not entered into this Agreement based on any representations other than those contained herein.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed both parties.
10.3.	Delays.  Equilibrium is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond its reasonable control.
10.4.	Governing Law.  This Agreement shall in all respects be governed by the laws of the State of California without reference to its principles of conflicts of laws.  The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within San Francisco County, California.  Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts.
10.5.	Severability.  If any of the provisions of this Agreement is held by a court of competent jurisdiction to be invalid under any applicable statute or rule of law, such provision shall, to that extent, be deemed omitted, and the remaining portions of this Agreement shall remain in full force and effect.
10.6.	Waiver.  The waiver of a breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
10.7.	Notices.  All notices permitted or required under this Agreement shall be in writing and shall be delivered in person or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in the Purchase Order and/or Invoice or such other address as either party may specify in writing.  Such notice shall be deemed to have been given upon receipt.
10.8.	U.S. Government Restricted Rights.  If this Software is being licensed by the U.S. Government, the Licensed Materials are commercial computer software and documentation developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
10.9.	Export Law Assurances.  Customer understands that the Licensed Materials are subject to export control restrictions, laws and regulations.  Customer shall comply with all export and re-export restrictions, laws and regulations of the U.S. Commerce Department and other U.S. agencies and authorities.  Without limiting the foregoing, Customer agrees not to download or transfer (or permit any person or entity to download or transfer) the Software (a) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the United States has embargoed goods, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
10.10.	Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
10.11.	Press Release.  Within thirty (30) days after execution of this Agreement, Equilibrium may, with Customer’s consent, which shall not be unreasonably withheld or delayed, issue a press release announcing the relationship between the parties.  Customer shall have the opportunity to review and approve such announcement prior to its release.
10.12.	Headings.  The headings are for convenience and shall not be used to construe this Agreement.