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Subscription Services Agreement

THIS SUBSCRIPTION AND SERVICES AGREEMENT is made effective as of the date of the Insertion Order Effective Date by and between Cinsay, Inc. ("Cinsay") and the Client. Cinsay and Client are referred to collectively herein as the "Parties" and individually as a "Party."

1. Definitions:

As used herein, the terms set forth below shall have the following meanings:

1.1 "Agreement" shall mean, collectively, this Subscription and Services Agreement between Cinsay and Client and any Service Orders (defined below) executed by the Parties and incorporated herein by reference.

1.2 "Cinsay Platform" shall mean Cinsay's rich media application consisting of a graphical user interface allowing authenticated users to manage and assign photos, thumbnails, videos, metadata, product links and ad tags to video assets (the "Cinsay CMS"), the granular ad tag manager and/or ad servicing components of the Cinsay CMS, and Cinsay Smart Store™ technology.

1.3 "Intellectual Property" or "IP" means (a) patents, patent applications and other patent rights; (b) rights associated with works of authorship, including copyrights, Trademarks, registrations and applications for registration of Trademarks and copyrights, mask work rights, mask work applications and mask work registrations; (c) rights relating to the protection of trade secrets and confidential information; (d) rights analogous to those set forth herein and any other proprietary rights relating to intangible property; and (e) divisions, continuations, renewals, reissues and extensions of the foregoing (as applicable), now existing or hereafter filed, issued, or acquired.

1.4 "Service Order" shall mean each of the Service Orders, generally prepared in the form of Exhibit A (or another mutually agreeable form), defining the Services, Cinsay's compensation, additional terms and conditions, if any, applicable to a particular engagement and such other details as the Parties deem appropriate.

1.5 "Services" shall mean the services to be rendered by Cinsay as specified in each applicable Service Order.

1.6 "Smart Store™" shall mean Cinsay's proprietary "viral-able" video player with an e-commerce store built directly into the player, that enables a user to complete certain e-commerce transactions within the player.

2. Purpose, Performance, and Relationship:

2.1 Purpose. The primary purpose of this Agreement is to provide Client with technology and social media marketing services over the term of the Agreement as specified in the Service Order(s).

2.2 Client Obligations. Client agrees to cooperate with Cinsay and provide reasonable assistance in connection with Cinsay's performance of its obligations under each Service Order. Client acknowledges and agrees that Cinsay may, in performing its obligations pursuant to this Agreement, be dependent upon or use data, material, and other information furnished by Client without any independent investigation or verification thereof, and that Cinsay shall be entitled to rely upon the accuracy and completeness of such information in performing the Services.

2.4 Relationship of the Parties. Cinsay and Client acknowledge and agree that Cinsay, at all times in fulfilling its obligations under the terms and conditions of this Agreement, shall act as and be considered an independent contractor with respect to Client. Cinsay and its agents and employees shall not, under any circumstances, be deemed employees, representatives, or agents of Client. Neither Cinsay, nor its employees or contractors, if any, are eligible or entitled to any pension or welfare benefit plan sponsored by Client or for the benefit of Client employees. Under no circumstances shall Cinsay, its agents, or employees represent themselves as an employee, representative or agent of Client. Neither Cinsay nor Client shall have any authority (express, implied or otherwise) to enter into any contracts or commitments in the name of, or on the behalf of, the other or bind the other in any respect whatsoever. Under no circumstances shall the relationship between Client and Cinsay, as contemplated in this Agreement or otherwise, create or be construed as creating a joint venture, partnership, or any other business combination of any kind. Client acknowledges that, regardless of whether Client is doing business as a sole proprietorship, partnership, individual or corporation, Client is solely responsible for any and all employment/contractual issues, payment of any wages and benefits, and for the collection and remittance of required withholding taxes or other taxes concerning its own employees and/or contractors.

2.5 Platform Subscription. During any applicable Term, Client shall utilize the Cinsay Platform and Smart Store™ under the standard Terms of Service and End User License Agreement ("EULA") relating thereto, as applicable.

3. Intellectual Property:

3.1 Intellectual Property. Each Party retains exclusive ownership of its Intellectual Property created or used in connection with performance under this Agreement, including, but not limited to, pre-existing software, technology, and systems IP. Cinsay independently maintains numerous external proprietary systems including software as a service for the management and delivery of e-commerce, video e-commerce ad services, coupon delivery, and video conferencing. These systems may be used to deliver services to the Client's customers. Technology and software related to these external proprietary Cinsay systems remain the exclusive property of Cinsay. Such proprietary technology includes pre-existing technology as well as any future enhancements to such systems. Any exception to the terms specified in this section must be explicitly agreed to by both Parties.

3.2 Residual Knowledge. Each Party acknowledges that the other, in the normal conduct of its business, may use concepts or modifications of concepts developed while working with other entities. Each Party acknowledges the benefit which may accrue to the other Party, and each Party expressly and irrevocably permits the other Party to continue in perpetuity, and without payment of a royalty, this practice of using concepts developed while working with the other Party and modifications of such concepts. The terms of this Section do not however, affect the obligations of the parties under Article III, 3.1 (Intellectual Property) or Article VII (Confidentiality) of this Agreement. Each Party further acknowledges and agrees that the other Party has proprietary methodologies, techniques, ideas, knowledge and tools which are valuable assets of the other Party and which (together with all enhancements and modifications) shall remain the sole and exclusive property of the other Party.

4. Payment for Services:

4.1 Payment. Cinsay shall invoice Client for Services as specified in each Service Order. Invoices shall be electronically delivered to Client via email and shall be payable within ten (10) days of receipt. Any past due amount is subject to a late charge in the amount of one and one-half (1.5%) percent per month or the maximum amount permissible by law, whichever is less. Client shall notify Cinsay of any disputed invoices within five (5) days of receipt and shall pay the undisputed portion of such invoice within the standard payment period. Without limiting its rights or remedies hereunder, and notwithstanding the Parties' rights under Section 8.3 hereof, Cinsay reserves the right to immediately suspend or terminate its Services in the event of Client's failure to make timely payment. All fees, expenses and other charges payable to Cinsay hereunder do not include any sales, use, excise, value added or other applicable taxes, tariffs or duties, payment of which shall be the sole responsibility of Client (excluding any applicable taxes based on Cinsay's net income or taxes arising from the employment or independent contractor relationship between Cinsay and its personnel). In the event that such taxes, tariffs or duties are assessed against Cinsay, Client shall reimburse Cinsay for any such amounts paid by Cinsay or, prior to the payment of such amounts by Cinsay, provide Cinsay with valid tax exemption certificates with respect thereto.

5. Warranties and Limitation of Liabilities:

5.1 Cinsay Warranty. Cinsay represents and warrants that the Services required to be performed under this Agreement will be delivered in substantial conformance with any specifications set forth in the Service Order(s), will be performed in a professional and workman-like manner.

5.2 SOLE AND EXCLUSIVE REMEDIES. THE EXCLUSIVE REMEDY FOR UNCURED BREACH OF THE WARRANTIES SET FORTH IN SECTION 5.1 SHALL BE THE REPERFORMANCE OF THE NONCONFORMING SERVICES OR TERMINATION OF THE SERVICES ORDER UNDER WHICH THE NONCONFORMING SERVICES WERE TO BE PROVIDED. CLIENT SHALL HAVE NO RIGHTS TO WITHHOLD PAYMENT OR MAKE SET OFFS OR DEDUCTIONS FROM ANY PAYMENT DUE BY CLIENT AS A RESULT OF ANY CLAIMS CLIENT MAY HAVE OR ALLEGE TO HAVE AGAINST CINSAY UNDER THIS AGREEMENT.

5.3 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 5.1, ALL CINSAY PRODUCTS AND SERVICES ARE PROVIDED AS-IS AND CINSAY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY, ACCURACY, QUALITY, SUITABILITY, ORIGINALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF, ANY SERVICE OR OTHER MATERIALS PROVIDED UNDER ANY SERVICE ORDER.

5.4 LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, REVENUES, OR SAVINGS, OR THE LOSS OR USE OF ANY DATA, EVEN IF THAT PARTY HAD BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY'S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO CINSAY UNDER THE SERVICE ORDER FROM WHICH THE CLAIM ARISES.

6. Idemnity:

6.1 Indemnification. Cinsay shall indemnify, defend, and hold harmless from any and all claims that any of the Services infringes upon or misappropriates any third party's Intellectual Property.

6.2 Indemnification for Reliance Damages. Notwithstanding the above, Cinsay will not be liable for any damages or costs resulting from any claim or suit for invasion of privacy or violation of any law relating to privacy or unsolicited communications, to the extent based on Cinsay's (i) compliance with the Service Order(s) or Client's designs or instructions or (ii) use of any product, service, or data provided by Client (collectively, "Reliance Damages"). Client shall assure that actions Cinsay is instructed to take, and all use of data Cinsay is instructed to make, comply with all legal requirements. Client shall indemnify, hold harmless and defend Cinsay from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys' fees), fines, penalties, taxes or damages incurred by or asserted against Cinsay in connection with (i) any third party claim related to Reliance Damages or (ii) any third party claim that Cinsay's use or possession of any product, service, or data provided by Client infringes any third party's intellectual property rights.

6.3 Payment. The indemnifying Party shall pay all costs, settlements, judgments and reasonable attorney's fees incurred, however, the indemnifying Party may, at its option, conduct the defense or settlement of any such action arising as described herein, and the indemnified party shall fully cooperate with such defense.

6.4 Survival. The obligations under this Section will survive the expiration or termination of this Agreement by either party for any reason.

7. Confidentiality:

7.1 Confidential Information. The term "Confidential Information" shall mean the terms of this Agreement as well as any and all other information concerning a Party's business which is furnished or communicated to, or developed or learned by a Party hereunder, which is not generally known by the public, including the work product, documentation, data, ideas, inventions and improvements developed in connection with the delivery of Services under this Agreement. It shall also include all technical, economic, business or descriptive information, data, concepts, or know-how relating to work performed under this Agreement, which one Party (the "Disclosing Party") discloses to the other Party (the "Receiving Party") in documentary form marked as being confidential, or which a Party discloses orally, identified as being confidential at time of disclosure, or information which a Receiving Party should reasonably believe that, under the circumstances of disclosure, the Disclosing Party considers the information to be confidential, except any portion of such information which:

  1. The Receiving Party can show was in its possession prior to the earliest disclosure by the Disclosing Party;
  2. Is presently or hereafter becomes a part of the public knowledge or literature without default by the Receiving Party of its obligations pursuant to this Agreement;
  3. Is furnished to a third party by the Disclosing Party without restriction or confidentiality or use;
  4. Is independently developed by the Receiving Party without use of the Confidential Information; or
  5. Is required to be disclosed by law.

7.2 Disclosure. Each party agrees to protect the other's Confidential Information at all times and in the same manner as each protects the confidentiality of its own proprietary and confidential materials, but in no event with less than a reasonable standard of care. Neither Party shall, except with respect to those of its employees with a need to know under this Agreement, use or disclose to any third party any Confidential Information of the other Party except as contemplated by this Agreement. Any such disclosure of Confidential Information to employees or third parties shall only be made if such parties have been advised of the confidentiality requirements and have signed confidentiality agreements providing the same level of protection for the protection of the Confidential Information as required between the Parties under this Agreement. If the Receiving Party is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, the Parties agree that the Receiving Party will provide the Disclosing Party with prompt notice of such request(s) so that the Disclosing Party may seek an appropriate protective order or waive the Receiving Party's compliance with the provisions of this Agreement. The Parties further agree that if, in the absence of a protective order or the receipt of a waiver hereunder, the Receiving Party is nonetheless, in the opinion of its counsel, compelled to disclose Confidential Information to any tribunal or else stand liable for contempt or suffer other censure or penalty, the Receiving Party may disclose such Confidential Information to such tribunal without liability hereunder.

7.3 Public Disclosure of Relationship. Client agrees to allow Cinsay to disclose the general nature of the relationship described herein and as defined by any subsequent Service Order for purposes of promotion and client reference. The Parties agree that such disclosures may include use of screenshots, screen-casts, audio and video, and similar materials so long as such disclosures do not violate the confidentiality terms set forth in this Section VII.

8. Term and Termination:

8.1 Term. Unless otherwise terminated as provided below, the term of this Agreement will commence on the Effective Date and shall continue until the earlier termination of the applicable terms of the last Service Order that references this Agreement, including renewals thereof (the "Term").

8.2 Termination for Breach. Either Party may terminate this Agreement upon five (5) days prior written notice to the other Party upon the default of any material obligation hereunder, if such default is uncureable or which, being cureable, has not been cured within thirty (30) days after receipt of written notice of such default (or additional cure period as the non-defaulting Party may authorize).

8.3 Effect of Termination. Upon the expiration or termination of this Agreement or an applicable Service Order, the rights and licenses granted to Client under this Agreement, any Service Order, Terms of Service or EULA shall terminate. Cinsay shall further have the right to terminate Client's ability to use the Cinsay Platform. Cinsay shall submit invoices and will be paid the amount due for Services rendered under any applicable Service Order through the date of termination.

8.4 Survival. The respective obligations of the Parties under this Agreement including, but not limited to, the obligations under Articles III, IV, V, VI, VII, VIII, and IX which, by their nature are intended to continue beyond the termination of this Agreement, shall survive.

9. Miscellaneous:

9.1. Assignment. The Parties agree that Cinsay shall be entitled to assign and/or transfer all or part of its rights and obligations under this Agreement to any third party, affiliate, or other successor in interest, including without limitation, as a result of a merger or consolidation, or in connection with the sale of transfer of all or substantially all of its business or assets to which this Agreement related, or in connection with a corporate reorganization, or in connection with any other business purpose; provided that such assignee is bound by the applicable terms of this Agreement. Client may not assign, voluntarily, by operation of law or otherwise, any rights or obligations under this Agreement without the prior written consent of Cinsay.

9.2 GOVERNING LAW, JURISDICTION AND VENUE. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. EACH PARTY CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF COMPETENT STATE AND FEDERAL COURTS IN THE STATE OF TEXAS FOR ANY LITIGATION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, AND TO THE VENUE OF SUCH LITIGATION OR PROCEEDING IN DALLAS COUNTY, TEXAS.

9.3 Notices. All notices and communications under this Agreement shall be deemed given to a Party if: (a) delivery by hand; (b) sent by a nationally recognized overnight carrier effective on the day of delivery; (c) sent via e-mail; or (d) sent by registered or certified mail, return receipt requested, effective on the date of receipt. Such notices and communications should be sent to the client at the address specified on the first page of this Agreement and if to Cinsay, to the address set forth on the signature page of this Agreement or such other address as requested in writing from a Party.

9.4 Severability. All of the provisions and clauses of this Agreement are distinct and severable, and if any provision or clause shall be deemed illegal, invalid, void, or unenforceable, it will not affect the validity, legality or enforceability of any other provision, clause, or portion thereof and the remainder of the Agreement shall continue in full force and affect as though such illegal, invalid, void or unenforceable provision had not been contained herein.

9.5 Entire Agreement. This Agreement and each Service Order shall contain the entire and only agreements between the Parties concerning the subject matter contained herein. This Agreement supersedes or cancels all previous negotiations, agreements, commitments, and writings between the Parties on the subject of this Agreement. This Agreement may not be amended in any manner except by an instrument in writing as identified in this document and signed by the duly authorized representatives of each of the Parties. In the event of a conflict between or among this document and a Service Order, the provisions of this Agreement shall control.

9.6 Amendments. The Parties may, by means of mutual agreement and execution of separate documents, amend this Agreement as necessary to reflect the changes in the Service Order(s), payment rates and terms, the terms of this Agreement or to reflect other changes by mutual agreement. Said amendments must clearly indicate the specific changes agreed upon by the Parties together with the effective dates of said amendment(s), must be signed by the duly authorized representatives of both Parties, and must clearly indicate that, except where modified, the amendments indicated therein are subject to and governed by the terms and conditions of this Agreement. No waiver, alteration or modification of any of the provisions of the Agreement shall be binding upon either Party unless in writing, signed by the duly authorized representatives of both Parties.