TERMS AND CONDITIONS

These Terms and Conditions (this “Agreement”)are a binding contract by and between Scandy Inc. (“Licensor”), and you (“Licensee”). This Agreement governs your access to and use of the “Roux” software as that term is defined herein. Throughout this Agreement, Licensor and Licensee are each referred to individually as a “Party” and jointly as the “Parties.”

BY CLICKING THE “I ACCEPT” BUTTON BELOW, AGREEMENT TO THE LICENSE AND LIMITED DEVELOPMENT AGREEMENT OR BY ACCESSING OR USING ROUX, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW. YOU MAY NOT ACCESS OR USE ROUX IF YOU DO NOT ACCEPT THESE TERMS.

1. Definitions.

* “Affiliate” means, with respect to either Party, any one or more legal entities (i) owned or controlled by a Party, (ii) owning or controlling a Party, or (iii) owned or controlled by the legal entity owning or controlling a Party. For the purpose of this definition a legal entity shall be deemed to own or control another legal entity if at least 50% (fifty percent) of the voting securities of the latter legal entity, ordinarily entitled to vote in the meetings of shareholders of that entity, is held directly or indirectly by the owning and/or controlling legal entity.

* “Application Distribution Platform” means the digital distribution platforms, developed and maintained by Apple, Inc., for mobile applications on its iOS operating system, or developed and maintained by Google, Inc., for mobile applications on its Android operating system.

* “Application” means the Licensee’s single desktop or mobile direct-to-consumer software application, described as the Scandy Scanner Application or Formed Application, developed by Licensor that is available for download from an Application Distribution Platform or an Enterprise Application Distribution Platform by any End User.

* “Confidential Information” has the meaning set forth in ~Section 12~.

* “Effective Date” means the earlier date of (i) the Licensee acknowledged acceptance of this Agreement by clicking the “I ACCEPT” button or (ii) the Effective Date of the License and Limited Development Agreement (as defined in such agreement).

* “End User” means a consumer who uses the Application on a device.

* “End User Device” means any device owned, possessed or operated by a direct end user on which the Application exists, each defined or identified by an individual MAC Address for each Device.

* “Enterprise Application Distribution Platform” means the digital distribution platforms, developed and maintained by Apple, Inc., for applications on its iOS operating system for enterprises or corporate-sanctioned and secured software applications, or the Google, Inc., Managed Play Store for enterprises or corporate-sanctioned and secured software applications.

* “EULA” means an end-user license agreement incorporating the minimum provisions set forth in ~Addendum 2~ of this Agreement.

* “License and Limited Development Agreement”means the separate License and Limited Development Agreement between the Licensor and Licensee.

* “Licensee” means the Party to whom the Licensor is granting rights pursuant to the terms of this Agreement.

* “Licensor” shall have the meaning given to it in the first paragraph of this Agreement.

* “Object Code” shall mean the code resulting from the translation of Source Code in machine-readable format.

* “Roux” means the software Object Code known as “Roux,” and related processes, systems, algorithms, formulae, user interface, data streams, database elements and all other components and technologies, which processes and captures three-dimensional measurement and object data.

* “Scandy IP” means present and future patents, copyrights, neighboring rights, works of authorship, rights in software, rights on semi-conductor topography, database rights, trademarks, trade names, logos, designs, models, data, algorithms, processes, trade secrets, know-how, applications for registration and the right to apply for registration, for any of the above rights and all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world relating to or comprising Roux.

* “Source Code” shall mean the human readable embodiment of a computer code.

* “Term” means a period of twenty-four (24) months from the Effective Date of this Agreement, unless terminated in accordance with the terms of this Agreement.

* “Territory” means world-wide.


2. Term and Renewal.

* This Agreement shall commence on the Effective Date and be effective for the Term unless terminated earlier in accordance with the provisions of this Agreement.

* At the expiry of the Term, this Agreement will automatically renew for successive additional terms of one (1) year (each an “Additional Term” and shall be included within the definition of “Term” throughout this Agreement). Any Party who wishes to avoid automatic renewal of this Agreement for an Additional Term must notify the other Party in writing of its intention not to renew at least thirty (30) days before expiry of each Term.

* Each Additional Term shall be subject to the terms and conditions herein except for fees and pricing set forth in Addendum 1, which is subject to change at Licensor’s discretion for each Additional Term and unless such compensation terms are overridden by the Statement of Work contained in the License and Limited Development Agreement. Licensor shall notify Licensee in writing of any change in the fees or pricing set forth in Addendum 1 for each upcoming Additional Term at least sixty (60) days before expiry of the Term. Licensee shall be deemed to have agreed to any such change in fees or pricing if Licensee does not elect to terminate the Agreement before the beginning of the Additional Term as provided in ~Section 2(b)~.

3. Grant of License; Limitations.  
* Subject to the provisions of this Agreement and the License and Limited Development Agreement, for the Term, Licensor hereby grants to Licensee the non-exclusive, non-transferable, sublicensable, internal, limited, revocable Object Code license to use and install Roux, as incorporated into an Application, on End User Devices throughout the Territory.  Licensor does not grant Licensee permission or right to use Roux for any purpose other than within the Application.  Licensee is prohibited from using Roux for any purpose other than within the Application.  After expiration of the Term, the applicable license granted above shall automatically and immediately terminate, and Licensee shall destroy all copies of Roux in its possession, shall cease all use of Roux (including as incorporated into the Application) and otherwise act in full compliance with this Agreement and applicable law.  

* Prior to sublicensing any of the rights for use of an Application on End User Devices, Licensee shall enter into a EULA with such sub-licensee with terms and conditions no less restrictive than the terms and conditions contained in the form of EULA referenced in ~Addendum 2~ of this Agreement.

* Licensor shall not be responsible for, and shall not have any liability whatsoever under any EULA for any breach by Licensee or any user of an End User Device of any of the terms and conditions of any EULA. Licensee acknowledges that Licensee is solely responsible for addressing any claims of the End User or any third party related to the Application, its applications and all related products or uses.  In the event of any third-party claim that the Application or the End User’s possession and/or use of the Application infringes that third party’s intellectual property rights, Licensee, not Licensor, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.  Licensee acknowledges and agrees that Licensor, and Licensor’s Affiliates, are third party beneficiaries of the EULA, and that, upon the End User’s acceptance of the terms and conditions of the EULA, Licensor will have the right to enforce the EULA against the End User as a third-party beneficiary thereof.

* In addition to the foregoing, all End User Devices on which an Application exists must connect to the Internet and ping the Roux server at least one (1) time per calendar month to allow Licensor to ensure a valid license for Roux exists on each End User Device. If the Roux server is not able to confirm a valid license for each End User Device within a given calendar month, then the licensed rights applicable to such End User Device shall immediately and automatically terminate, and all Roux instances shall cease operation on such End User Device.

* Licensee shall not use, distribute or otherwise sublicense Roux or any Scandy IP, other than as set forth in ~Sections 3(a) through 3(d)~.

* Notwithstanding the foregoing license grant in ~Sections 3(a) through 3(d)~, as between Licensor and Licensee, Licensor owns all right, title and interest in and to the Scandy IP and Roux. The creation of the Application or use of Roux therein shall not limit or alter the ownership of the Scandy IP or Roux or the use or distribution of the software or any intellectual property rights therein.

* Licensee shall not disclose, reverse engineer, reverse assemble, reverse translate, reverse compile (or decompile), or attempt to discover the Source Code or technical data underlying the Scandy IP or Roux.  Licensee shall not reproduce, modify, translate or attempt to maintain all or any portion of Roux or Scandy IP provided hereunder, in whole or in part, or permit or direct any other person or third party to do so.

* Licensee shall not exploit, develop or create derivative works of Roux or any other Scandy IP.

* Licensee shall not copy Roux or any other Scandy IP and shall not transfer it to any other person, company or entity.

* To the extent that Roux and supporting documentation are provided to Licensee in Source Code or printed form, Licensee agrees not to disclose Roux Source Code or supporting documentation to any third party and shall treat such Source Code or documentation in accordance with the confidentiality provisions herein.  Licensee shall ensure that any and all developers, employees, agents, representatives, contractors and subcontractors comply with the terms of this Agreement and that they hold Roux and Scandy IP as Confidential Information under this Agreement. Licensee hereby assumes responsibility and liability for any and all third-party developers or contractors who have access to Roux or Scandy IP under this Agreement

4. Royalty and Fee Payments.  The license granted during the Term will be subject to certain fees in accordance with the compensation terms identified in Addendum 1, which Licensee must pay to Licensor in consideration for the grants provided in ~Sections 3(a)~ ~through 3(d)~, unless such compensation terms are overridden by the Statement of Work contained in the License and Limited Development Agreement.  All royalty payment fees, amounts and terms shall be subject to the following:

* All royalty and access fees, amounts and terms must be in writing and agreed upon by the Parties.

* All royalty and access fees, amounts and terms shall take effect immediately upon commencement of the Term and remain in effect until termination of this Agreement unless amended in writing.

* All payments to Licensor shall be made in accordance with the compensation terms in Addendum 1 and shall be made in U.S. dollars. Payments shall be made to the address or account specified by Licensor in writing from time to time, provided that Licensor shall give Licensee at least ten (10) business days’ prior notice of any account, address or other change in payment instructions.

* Licensee shall maintain, and will cause its Affiliates to maintain, complete and accurate books, records, and other information to establish the completeness and accuracy of royalty reporting and compliance with this Agreement. Such books, records, and other information for each calendar quarter (each consecutive three-month period of any calendar year, starting in January and ending in December) will be maintained for three years after the submission of the report covering such period for which payments are due under this Agreement. Upon reasonable prior notice to Licensee, Licensee will provide Licensor with reasonable access during normal business hours to all books, records, and other information to establish the completeness and accuracy of royalty reporting and compliance with this Agreement by Licensee and its Affiliates in order to conduct a review or audit of those books, records, and other information. Access to Licensee’s and its Affiliates’ books, records, and other information, for the periods provided above will be available during normal business hours at least once each calendar year during the Term and at least once a year for each of the three years after the expiration or termination of this Agreement. Licensee will pay to Licensor any underpayment determined to exist pursuant to such audit, accrued interest of ten percent (10%) with respect to such underpayment, and, if the audit determines that Licensee has underpaid royalties by two percent (2%) or more, Licensee will also pay to Licensor the reasonable, out-of-pocket costs and expenses of Licensor and its accountants in connection with their review or audit.

5. Updates.  During the Term, Licensor shall provide to Licensee all future versions, releases, improvements, bug fixes or other modifications to Roux.

6. Third Parties.  Should there be any requirement for the Application to be built, developed, written, maintained, tested or monitored by a third party, Licensee shall first obtain prior written consent from Licensor and ensure that all third parties execute written agreements with Licensee containing provisions necessary to comply with ~Sections 2, 3, 11, 12, 14, 15, and 26~ of this Agreement.  Licensee shall at all times be responsible for the acts and omissions of such third parties and personnel directly or indirectly employed by them and development and use of the Application.  This Agreement shall not give rise to any contractual relationship between Licensor and a third party, unless Licensor chooses in its discretion to join as a party to the agreement entered into between Licensee and the third party, in which case Licensee shall ensure that the necessary agreements are signed to protect Licensor’s rights and remedies against such third party.  Licensor shall not undertake any obligation to pay or to be responsible for the payment of any sums or provision of any amenities to any third party or its employees or personnel. Licensee shall indemnify Licensor and hold Licensor harmless against all losses, damages, expenses and costs incurred or suffered by Licensor directly or indirectly attributable to any act or omission on the part of any such third party.

7. Disclaimers; No Warranties.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE TECHNOLOGY (INCLUDING WITHOUT LIMITATION ROUX AND ANY OTHER SCANDY IP) LICENSED UNDER THIS AGREEMENT IS PROVIDED “AS IS” AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR FITNESS FOR ANY PARTICULAR PURPOSE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM LICENSOR WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

LICENSEE EXPRESSLY AGREES THAT THE USE OF ROUX AND ANY APPLICATION THAT INCORPORATES ROUX OR SCANDY IP IS AT LICENSOR’S SOLE RISK.  THE APPLICATION AND ROUX ARE PROVIDED ON “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

LICENSOR DOES NOT WARRANT THAT ROUX OR ACCESS TO ROUX WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED; PROVIDED, HOWEVER, THAT NO ROYALTY PAYMENT SHALL BE DUE FROM LICENSEE TO LICENSOR UNDER THIS AGREEMENT DURING ANY PERIOD IN WHICH ROUX HAS SUFFERED FROM UPTIME LESS THAN 98% OF THE TIME IN ANY GIVEN QUARTER.

LICENSEE UNDERSTANDS AND AGREES THAT IF IT USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS ROUX, ANY OTHER SCANDY IP OR ANY INFORMATION, MATERIALS, OR DATA RELATED TO THE FOREGOING THROUGH ANY SITES OWNED OR MAINTAINED BY LICENSOR OR ANY THIRD PARTY, IT DOES SO AT LICENSEE’S OWN DISCRETION AND RISK AND THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S OR THIRD PARTIES‘ PROPERTY (INCLUDING LICENSEE’S COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH SOFTWARE, DOCUMENTS, MATERIAL OR DATA.

8. Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL LICENSOR OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM LICENSEE’S (OR ITS USERS’) USE OR THE INABILITY TO USE ROUX, THE APPLICATION OR ANY OTHER SCANDY IP, EVEN IF SCANDY OR A SCANDY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. . IN THE CASE THAT DAMAGES ARE MANDATORY AT LAW, TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR’S TOTAL LIABILITY SHALL NOT EXCEED THE GREATER OF (1) $100.00 (U.S.) AND (2) THE AMOUNT OF MONEY ACTUALLY PAID TO LICENSOR FOR THE LICENSE GRANTED HEREIN.

9. Indemnification. LICENSEE agreeS to indemnify and hold harmless LICENSOR, and its parent, subsidiaries, affiliates AND any related companies (including those which share substantially common ownership), and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs, debt, and expenses (including attorney’s fees) arising out of (i) LICENSEE’S use or misuse of Roux, THE Application OR ANY DERIVATIVE WORK of the Application; (ii) LICENSEE’S User Content OR the APPLICATION, including LICENSEE’s use, display or other exercise of its license rights granted herein with respect to LICENSEE’S APPLICATION; (iii) LICENSEE’S violation of these Terms; (iv) LICENSEE’S violation of the rights of ANY THIRD PARTY, WITH RESPECT TO claims that the Application, ROUX or any SCANDY IP infringes or violates SUCH third Party’s intellectual property rights; (v) LICENSEE’S breach of the representations, warranties, and covenants contained in this agreement; (vi) any unauthorized use BY LICENSEE of Roux, THE Application OR ANY SCANDY IP; (VIII) any product liability, strict liability, or other claim of any kind related to the use by a third Party of Roux, the Application or SCANDY IP.  LICENSOR MAY, at LICENSOR’S SOLE COST AND expense, assume the exclusive defense and control of any matter for which LICENSEE IS required to indemnify LICENSOR, IN WHICH CASE LICENSEE agreeS to cooperate with LICENSOR’S defense of these claims.  LICENSEE agreeS not to settle any matter without the prior written consent of LICENSOR.  LICENSEE will use reasonable efforts to IMMEDIATELY notify LICENSOR of any such claim, action, or proceeding upon becoming aware of it.

10. Basis of the Bargain.  EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY HAS ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS, INDEMNIFICATION AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS, INDEMNIFICATION OBLIGATIONS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN LICENSOR AND LICENSEE, AND THAT THE WARRANTY DISCLAIMERS, INDEMNITY OBLIGATIONS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN LICENSOR AND LICENSEE.  EACH PARTY ACKNOWLEDGES AND AGREES THAT THE OTHER PARTY WOULD NOT BE ABLE TO PROVIDE A LICENSE TO ROUX TO LICENSEE ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

11. Reservation of Rights.  

* Licensor reserves all right, title and interest in the Scandy IP (including without limitation Roux) and any part thereof not expressly granted to the Licensee in this document. Except as expressly provided herein, the Licensor does not grant any express or implied right under any patents, patent applications, copyrights, trademarks or any other intellectual property or proprietary right to the Licensee. As between Licensee and Licensor, Licensor owns all right, title and interest in and to all Scandy IP and moral rights of every kind and nature whatsoever to the Scandy IP.

* Nothing contained in this Agreement shall serve to interfere with, change, modify or alter any of the ownership rights of the Parties that have been set forth otherwise at law.

12. Confidentiality.

* Each Party (the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (the “Receiving Party”). Subject to ~Section 12(b)~, “Confidential Information” means information in any form or medium that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as “confidential.” Without limiting the foregoing: (i) Scandy IP is the Confidential Information of Licensor; and (ii) the terms of this Agreement are the Confidential Information of each of the Parties.

* Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

* As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

* not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

* except as may be permitted under the terms and conditions of ~Section 12(e)~, not disclose or permit access to Confidential Information other than to its representatives who: (a) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this ~Section 12~; and (c) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this ~Section 12~;

* safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;

* promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure; and

* ensure its representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this ~Section 12~.

* Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this ~Section 12~ with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its representatives.

* If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, the Receiving Party will: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under ~Section 12~; and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under the ~Section 12(e)~, the Receiving Party remains required by law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose.

13. Termination.

* Licensor or Licensee may terminate this Agreement at any time, for any reason or no reason, by providing thirty (30) days’ written notice to the other Party.

* If either Party materially breaches any of its obligations under this Agreement, the non-breaching Party, at its option, will have the right to terminate this Agreement by written notice to the other Party, if the other Party does not cure such breach within fifteen (15) days after being notified in writing of such breach by the non-breaching Party.

14. Effect of Termination.

* Upon the termination of this Agreement, all rights to use Roux under this Agreement in favor of Licensee shall immediately cease and be terminated, and Licensee shall immediately delete and permanently destroy all copies of Roux (and certify in writing to Licensor the method of destruction and the fact that it has occurred for purposes of verification).

* Upon termination of this Agreement, all rights granted to Licensee under this Agreement shall immediately cease, and Licensee shall immediately cease all use, sale, manufacture, distribution or exploitation of Roux (and require that all Affiliates do the same) and, to the extent that Application continues to incorporate Roux, the Application. Upon termination, Licensee and all Affiliates will refrain from further research, manufacture, sale, offering for sale, marketing, importation, and/or distribution of Roux and Scandy IP.

* ~Sections 3(e)-(j)~, 4, and ~7~ through ~26~, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement. Without limiting the generality of the foregoing, all obligations with respect to any trade secrets of either Party shall survive this Agreement in perpetuity, in the case of trade secrets or Confidential Information of a Party, or for the maximum period allowable under law in the case of other intellectual property rights.

15. Mutual Representations and Warranties.Each Party represents and warrants to the other that:

* it is a duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;

* it has the full right, power and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement;

* the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and

* when executed and delivered by both Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

16. Non-Solicitation.  Licensee shall not, directly or indirectly, do any of the following during the Term and for a period of two (2) years after termination of this Agreement:

* solicit, for Licensee’s own benefit or the benefit of any other person or entity, do business with, perform services for or solicit, divert, take away or attempt to solicit, divert, take away, or otherwise advise or encourage any of the Licensor’s past, current or prospective clients, vendors, contractors, consultants, agents or referral sources; or

* solicit, recruit, hire or otherwise interfere with the employment status of any of the Licensor’s other employees or independent contractors.

17. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
18. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement have binding legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such Party may designate from time to time in accordance with this ~Section 18~).

If to Licensor:
Scandy Inc.
612 Andrew Higgins Blvd, Suite 1003
New Orleans, LA 70130
E-mail: cole@scandy.co
Attention: Cole Wiley

With a copy to (which shall not constitute notice):

Cara Stone, LLP
5408 Magazine Street
New Orleans, LA 70115
Attention: Mark Graffagnini
E-mail:  [mg@carastone.com](mailto:mg@carastone.com)
If to Licensee:
Record address or email address Licensee provides Licensor upon sign-
up and as amended thereafter.

Notices sent in accordance with this ~Section 18~ will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by e-mail, in each case, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next Business Day, if sent after the addressee’s normal business hours; and (d) on the fifth (5th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
19. Headings*.* The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
20. Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and to the extend referenced in the License and Limited Development Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
21. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.
22. Assignment. For the avoidance of doubt, Neither Party may assign or transfer its rights or obligations under this Agreement, either in whole or in part, without the prior written consent of the other party; *provided, however,* that notwithstanding the foregoing, neither Party shall be required to obtain the prior written consent of the other Party in the event of a Change in Control of such Party, For the purposes of this ~Section 21~, “Change in Control” means (a) a merger or consolidation of either Party with or into another party for purposes unrelated to avoiding the consent notice required otherwise, (b) a transaction or series of related transactions in which a third party, together with its Affiliates, becomes the beneficial owner of fifty percent (50%) or more of the combined voting power of the outstanding securities of a Party, or (c) the sale of all or substantially all of the assets of a Party.  Any attempted assignment in contravention of this ~Section 21~ will be null and void.
23. Compliance with Law. Licensee will comply with all prevailing laws, rules, and regulations that apply to its activities and/or obligations under this Agreement.
24. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing identified as an amendment to this Agreement and signed by an authorized representative of each Party.  
25. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
26. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Louisiana without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Louisiana. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Louisiana in each case located in the City of New Orleans, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.


Addendum 1: Compensation

* Licensee shall pay Licensor a single ninety-nine-dollar access fee per month (USD $99.00/month) for the option to enter into this Agreement and unlimited additional Agreements to license and use Roux for  other separate and distinct Applications. The license for the single Application to which this Agreement applies will be subject to additional royalty fees as set forth in Section B or C below depending on which distribution platform the particular Application is made available to End Users. Any failure by Licensor to pay the $99.00/month access fee will result in immediate termination of this Agreement and Roux will become disabled.

* For an Application available for distribution on an Application Distribution Platform, Licensee shall pay Licensor an additional one dollar per year (USD $1.00/year) for each End User Device that accesses or launches the Application.

* For an Application available for distribution on an Enterprise Application Distribution Platform, Licensee shall pay Licensor an additional fifty dollars per year (USD $50.00/year) for each End User Device that accesses or launches the Application.

* Licensor shall bill Licensee monthly based on the number of End User Devices as set forth in the Agreement.

* Payment to Licensor shall be due and payable within thirty (30) days after Licensor submits its bill or invoice to Licensee. Failure to complete full payment within the 30-day period shall constitute breach of this Agreement and this Agreement shall immediately be subject to the termination provisions set forth in ~Sections 13 and 14~ of the Agreement.


Addendum 2: EULA

[End User] Restrictions. [End User] shall not:
 
* copy the Application;
 
* modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

* reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
 
* remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
 
* rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;

* remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application

[Licensee] shall be solely responsible for any and all warranty obligations, claims, losses, liabilities, damages, costs or expenses attributable to any approved use of the Application.

[End User] acknowledges and agrees that Scandy Inc., and its affiliates are intended third-party beneficiaries of this Agreement. Upon the [End User]’s acceptance of the terms and conditions of this Agreement, Scandy Inc., and its affiliates shall have the right to enforce this Agreement against [End User] as a third-party beneficiary of this Agreement.

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