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NashWorks Productions, Inc. - Software Licence Agreement
THIS AGREEMENT is made at the time of purchase of a NashWorks product.
BETWEEN:-

(1) NashWorks, a company incorporated in U.S.A. whose registered office is at New York, NY and Los Angeles, CA (Licensor) ; and
(2) You the client Purchaser (Licensee).


THE PARTIES AGREE AS FOLLOWS:-

1. GRANT OF LICENCE

1.1 Licensor grants to the Licensee a non-exclusive, non-transferable licence to use one single copy/copies of the software program ("the Software")

2. USE OF THE SOFTWARE

2.1 For the purposes of this Licence "Use" shall mean and include:
2.1.1 utilisation of the Software by copying, transmitting or loading the same into the temporary memory of a personal computer for the processing of the instructions or statements contained in such Software;
2.1.2 copying the Software for back-up or archive purposes provided that no more than one single copy/copies will be in existence under any Licence at any one time without prior written consent from the Licensor or as otherwise permitted by law;
2.1.3 utilising (but non copying) the instructional and/or operational manuals relating to the Software.

3. COPYRIGHT

3.1 The Software is owned by the Licensor or its suppliers and is protected by copyright laws and international treaty provisions. The Licensee may either (a) make one single copy of the Software solely for backup or archival purposes, or (b) transfer the Software to a single hard disk provided the Licensee keeps the original solely for backup or archival purposes. The Licensee must reproduce and include the copyright notice on any copy. The Licensee may not copy the written materials accompanying the Software.

4. LICENSEE'S UNDERTAKINGS

4.1 The Licensee undertakes not to perform any of the acts referred to in this sub-clause 4.1 except to the extent and only to the extent permitted by law to the Licensee as a lawful user of the Software and only then for the specific limited purpose permitted by law or hereunder. The Licensee undertakes:

4.1.1 not to copy the Software (other than for normal System operation and as specified in Clause 2 above) nor otherwise reproduce the same provided that the Licensee may copy the Software for back-up purposes or incidentally, in the course of converting the Software in accordance with clause 4.1.3 below.

4.1.2 not to translate, adapt, disassemble, decompile, reverse engineer, vary or modify the Software, except as permitted by law;
4.1.3 not to remove, obscure or alter any notice of patent, copyright, trademark or other proprietary notice on the Software;
4.1.4 not to sub-license, distribute, rent, lease, or otherwise transfer the Software or any unique access code or copy the Software;
4.1.5 not to make the Software accessible by any type of broadcast or transmission;
4.1.6 not to use the Software to attract customers away from the Licensor or to procure commercial advantage over the Licensor or to use it in any other way which is likely to be detrimental to the Licensor or its business;
4.1.7 not to enable a third party to do any of the acts set out in this clause 4.1.

4.2 To maintain accurate and up-to-date records of the number and location of all copies of the Software.

4.3 To supervise and control use of the Software in accordance with the terms of this Licence.

4.4 To ensure that its employees, agents and other parties who will use the Software are notified of this Licence and the terms hereof prior to such employee, agent or party using the same.

4.5 To reproduce and include the copyright notice of the Licensor on all and any copies, whether in whole or in part, in any form, including partial copies or modifications of the Software made herein.

4.6 Not to provide or otherwise make available the Software in whole or in part in any form in connection with or in conjunction with or as part of any Managed Service or to any person other than as specified in clause 4.4 above without prior written consent from the Licensor. For the purpose of this clause 4.6 "Managed Service" shall mean any commercial time sharing rental, bureau service or outsourcing agreement or arrangement.

4.7 Within fourteen (14) days after the date of termination or discontinuance of this Licence for whatever reason, to destroy the Software and all updates, upgrades or copies, in whole and in part, in any form including partial copies or modifications of the Software received from the Licensor or made in connection with this Licence, and all documentation relating thereto and the Licensor shall have the right to enter the Licensees premises, with the prior written consent of the Licensee, to retake immediate possession.

5. WARRANTY

5.1 The Licensee acknowledges that the Software is not error-free and agrees that the existence of such errors shall not constitute a breach of this Licence.

5.2 In the event that the Licensee discovers a material error which substantially affects the Licensee's use of the same and notifies the Licensor of the error within ninety (90) days from the date of the first use of the Software (the "warranty period") the Licensor shall use all reasonable endeavours to correct by patch or new release that part of the Software which does not so comply provided that such non-compliance has not been caused by any modification, variation or addition to the Software not performed by the Licensor or caused by its incorrect use, abuse or corruption of the Software or by use of the Software with other Software or on equipment with which it is incompatible.

5.3 To the extent permitted by law, the Licensor disclaims all other warranties with respect to the Software, either express or implied, including but not limited to any implied warranties or terms and conditions of satisfactory quality or fitness for any particular purpose. Specifically the Licensor does not warrant that the functions mentioned in the Software will meet the Licensee's individual requirements.

6. PAYMENT

(a) The Licence Fee shall be paid by the Licensee in full before obtaining the software.


7. LICENSOR'S LIABILITY

7.1 The Licensor shall not be liable to the Licensee for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with this Licence, the Software, its use or otherwise, except to the extent set out in clause 7.2 below or to the extent that such liability may not be lawfully excluded.

7.2 The Licensee agrees that the maximum aggregate liability of the Licensor whether in contract, tort, negligence, statutory duty or otherwise, for any loss or damage whatever arising from or in any way connected with any liability not excluded by this Agreement shall be limited to the value of the product at the time of purchase. This limit shall also apply in the event that any exclusion or other provision contained in this Agreement is held to be invalid for any reason and the Licensor becomes liable for loss or damage that could otherwise have been limited.

7.3 The Licensor expressly excludes liability for indirect, special, incidental or consequential loss or damage which may arise in respect of the Software, its use, the System or in respect of other equipment or property, or for loss of profit, business, revenue, goodwill or anticipated savings.

7.4 The Licensor does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of the Licensor, its employees, agents or authorised representatives.

7.5 If the Licensor is unable through no act or default of the Licensee to secure the correction of defects in the Software in accordance with and during the ninety (90) day warranty period and where the Software is totally unusable due to the defect, Licensee may reject it by sending written notice to the Licensor within fourteen (14) days of receipt of notice from the Licensor that the Licensor is unable to correct or procure the correction of such defects.

8. INTELLECTUAL PROPERTY RIGHTS

8.1 The Licensee acknowledges that any and all of the copyright, trademarks, trade names, patents and other intellectual property rights subsisting in or used in connection with the Software including but not limited to all documentation and manuals relating thereto, all images, animations, audio music and text incorporated into the Software remain the sole property of the Licensor. The Licensee agrees to immediately notify the Licensor of any actual or suspected infringement and the Licensee also agrees not to use any of the Licensor's trademarks as any part of the name under which the Licensee conducts its business.

9. CONFIDENTIAL INFORMATION

9.1 If during the performance of its obligations under this licence either party (“the Receiving Party”) is exposed to any information of the other (“the Disclosing Party”) which the Disclosing Party identifies as being of a confidential or sensitive nature, the Receiving Party shall respect the confidentiality of such information and will not use it save insofar as its use is necessary in the performance of its obligations under this licence and the Receiving Party shall restrict dissemination of such information to its employees on a need-to-know basis.

9.2 The obligations accepted by the Receiving Party under Clause 9.1 above shall not apply to any material which:

9.2.1 is already known to the Receiving Party; or

9.2.2 is public knowledge or enters the public domain without fault on the Receiving Party's part; or

9.2.3 is lawfully received from a third party; or

9.2.4 is ordered to be disclosed by a court or other tribunal of competent jurisdiction.

9.3 The obligations upon the Receiving Party under Clause 9.1 shall not oblige the Receiving Party to exercise a higher degree of care towards the Disclosing Party's confidential information than it does towards its own information of a like nature.

10. FORCE MAJEURE

The Licensor shall be under no liability to the Licensee in respect of anything which, apart from this provision, may constitute breach of this Licence arising by reason of force majeure, where such event is beyond that party's reasonable control.

11. TERM AND TERMINATION

11.1 This licence shall commence on the date hereof and shall continue until terminated in accordance with this clause or as otherwise provided in this licence.

11.2 The Licensor may by notice in writing to the Licensee terminate this Licence if:

11.2.1 the Licensee is in breach of any term, condition or provision of this Licence or required by law and fails to remedy such breach (if capable of remedy) within thirty (30) days of having received written notice from the Licensor specifying such breach or
11.2.2 if Licensee ceases to carry on business or a substantial part thereof or enters into liquidation whether compulsory or voluntary other than for the purpose of amalgamation or reconstruction or compounds with its creditors generally or has a receiver or manager or administrator appointed over all or any part of its assets or becomes unable to pay its debts as they fall due.
11.3 Upon termination, the Licensee shall comply with its undertaking specified in clause 4 .7 above.

11.4 Either party may terminate this Licence by giving the other party not less than thirty (30) days written notice. A refund will not be given by the Licensor in the event of a license termination.

11.5 Termination, howsoever or whenever occasioned shall be subject to any rights and remedies the Licensor may have under this Licence or under law.

12. ASSIGNMENT

The Licensee shall not assign or otherwise transfer all or any part of the Software or this Licence without the prior written consent of the Licensor.

13. WAIVER

No delay, neglect or forbearance on the part of either party in enforcing its rights or any of them against the other shall be construed as a waiver or in any way prejudice any of its rights hereunder.

14. HEADINGS

The headings of the terms and conditions herein contained are inserted for convenience or reference only and are not intended to be part of or to affect the meaning or interpretation of any of the terms and conditions of this Licence.


15. SEVERABILITY

In the event that any of these terms and conditions or provisions shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such terms, condition or provision shall to that extent be severed from the remaining terms, conditions and provisions which shall continue to be valid to the fullest extent permitted by law.

16. LAW

This Agreement shall be governed by and construed in accordance with the laws of United States of America and shall be subject to the jurisdiction of the U.S. Courts.

17. NOTICES

Any notice, instruction or other document to be given by either arty to the other hereunder may be left at or sent by pre-paid post, telex or confirmed facsimile transmission (as appropriate) to the address specified above or such other address notified by either party to the other for such purpose.

18. SURVIVAL

The provisions of clauses 4, 6, 7, 8, 11, 14, and 15 shall survive termination of this Licence.

19. ENTIRE AGREEMENT

This Agreement supersedes all prior agreements and arrangements of whatever nature and sets out the entire agreement and understanding between the parties relating to its subject matter. Nothing in this clause shall relieve either party of liability for fraudulent misrepresentations and neither party shall be entitled to any remedy for either any negligent or any innocent misrepresentation except to the extent (if any) that a court or arbitrator may allow reliance as the same as being fair and reasonable.

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