ApparelMagic Desktop Master Password Access Agreement

THIS LICENSE AGREEMENT (“Agreement”) is entered into between ApparelMagic (“AM”), and “Licensee”.

DEFINITIONS
Confidential Information. All Confidential Information includes all nonpublic aspects of AM Deliverables (and use of existing licensed ApparelMagic software), including code, programs, the interaction and unique programming techniques they employ, methods of processing, program design and structure, and performance data or test results. It also includes a party’s non-public plans for new products or services, product improvements and business strategies.

Licensee Software. Computer code, modules, programs, data files or rules that are owned by or licensed to Licensee and designed to be linked, combined or otherwise operated with AM Deliverables (and use of existing licensed ApparelMagic software). Licensee Software does not include AM Deliverables (or use of existing licensed ApparelMagic software).

Combined Software. Computer code, data files or rules that directly result from (1) third-party computer code, data files or rules being linked, combined or otherwise operated with AM Deliverables (and use of existing licensed ApparelMagic software), or (2) Licensee’s extensions or enhancements to AM Deliverables (and use of existing licensed ApparelMagic software) that are not developed by AM.

LICENSES
General. In consideration of the payment of SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00) by Licensee, receipt of which is acknowledged by AM, Licensee has received and accepted a master password which allows unlimited access to modify Licensee’s copy of the ApparelMagic 10 database (“AM Deliverables”).

License Grants. Licensee is granted a personal, non-transferable, non-exclusive license, solely for its own internal use and without rights to sublicense, to (1) load, install, execute, display and store AM Deliverables (for use with Licensee’s existing licensed ApparelMagic software) on their internal computers, (2) extend or enhance existing licensed ApparelMagic software, and (3) use existing licensed ApparelMagic software as a part of Combined Software for their personal apparel business and not as a software vendor or provider. Licensee will not, nor will it permit others to, use ApparelMagic software or AM Deliverables to develop code, objects, modules or programs that modify or substitute for code, objects, modules or programs in ApparelMagic Software. Notwithstanding the foregoing, the license granted hereunder does not include the right to add additional user licenses, which must be purchased separately from ApparelMagic. Use of AM Deliverables (for use with existing licensed ApparelMagic software) is limited to those uses set forth herein.

Intellectual Property. Licensee will not copy, alter, adapt, modify or make derivative works of ApparelMagic software of any kind, except as permitted by this Section. A reasonable number of backup copies (for use with existing licensed ApparelMagic software) may be made. AM Deliverables (for use with existing licensed ApparelMagic software) may contain access to processes or techniques that are patented or otherwise the exclusive intellectual property of AM. No license to use those processes and techniques apart from the AM Deliverables (for use with existing licensed ApparelMagic software) is granted. Licensee will not acquire any right to the trademarks or tradenames of AM or ApparelMagic.

Reverse Engineering. Licensee will not, and waives to the fullest extent permitted by law any right to, reverse engineer, decompile, disassemble or otherwise derive the source code for ApparelMagic, or to decode, de-encrypt or engineer around any security measures in ApparelMagic.

OWNERSHIP AND PROPRIETARY RIGHTS
All right, title and interest to copyrights, trade secrets, patents and other intellectual property rights (1) in AM Deliverables (for use with existing licensed ApparelMagic software) will remain the exclusive property of AM, and (2) in Licensee Software will remain the exclusive property of Licensee. For Combined Software, the parties will each retain full and exclusive rights to those portions of their respective software that are incorporated into the Combined Software. Combined Software will not be a joint work, and on termination of the license to AM Software or Deliverables included in Combined Software, Licensee’s right to use that AM Software or Deliverable will end, even as part of Combined Software.

INSTALLATION, ACCEPTANCE
Installation. AM is not responsible for installing, testing, managing, supporting or controlling AM Deliverables (for use with existing licensed ApparelMagic software).

Support. To the extent this License is used to modify the AM Deliverables, ApparelMagic has no obligation to support such modifications.

Acceptance. AM Deliverables (for use with existing licensed ApparelMagic software) will be deemed accepted on its receipt by Licensee.

WARRANTIES
ALL SOFTWARE, DELIVERABLES AND SERVICES ARE PROVIDED “AS-IS.” THIS WARRANTY DOES NOT GUARANTEE that (1) SOFTWARE or DELIVERABLES will perform in every operating environment OR be uninterrupted or error free in THEIR operation, or (2) any defect or malfunction CAN OR WILL BE corrected. NO OTHER WARRANTY OR CONDITION IS EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY. AM will have no warranty obligation with respect to (1) any portion of ApparelMagic or AM Deliverables that has been modified, altered or combined with other software by a party other than AM, or (2) defects or malfunctions resulting from causes other than ordinary and proper use, or from hardware or software other than that provided by AM and in the form provided by AM.

DAMAGES AND LIMITATIONS
Damages. AM WILL NOT BE LIABLE, REGARDLESS OF THE FORM OF ACTION, FOR LOST DATA, REVENUES, PROFITS OR SAVINGS, OR FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.

GENERAL
Confidential Information. In the course of their dealings, each party will acquire Confidential Information about the other and its partners, including Confidential Information regarding business activities and operations, technical information and other trade secrets. Each party will hold the other party’s Confidential Information in confidence. Neither party will use the other’s Confidential Information for purposes other than to perform this Agreement nor will they disclose the other’s Confidential Information except to those employees or advisors who (1) have a need to know it, and (2) are bound by law or have otherwise agreed in writing to maintain its confidence. If a party discovers Confidential Information has been improperly used or disseminated, it will immediately notify the other party and take all reasonable actions to minimize the impact of the use or disclosure.

Excluded Information. Even if marked as confidential, the confidentiality requirements herein will not apply to information that is (1) generally available to the public, (2) known by the receiving party without obligation of confidentiality before the negotiations leading to this Agreement, (3) independently developed by the receiving party outside the scope of this Agreement, (4) lawfully disclosed to the receiving party without restriction by a third party having the right to make the disclosure or (5) required to be publicly disclosed to a court or other tribunal. For required disclosures to a court or tribunal, the receiving party will promptly notify the disclaiming party of the proceedings and fully assist it in obtaining protective orders to maintain the confidentiality of its Confidential Information.

Assignment. This Agreement is not assignable by Licensee without the prior consent of AM. This Agreement will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.

Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply.

Arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement will be finally resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) with venue and jurisdiction in West Palm Beach, FL.

Equitable Relief. Breach of a party’s obligations regarding intellectual property rights will cause irreparable injury for which there is no adequate remedy at law. The aggrieved party will be entitled to equitable relief in addition to all other remedies that may be available, without the posting of bond or other security, or if required, then the minimum bond or security required.

Intentional Risk Allocation. The provisions of this Agreement reflect an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with its subject matter. This allocation was a material part of the bargain between the parties. The economic and other terms of this Agreement were negotiated and agreed to by them in reliance on that allocation.

Independent Contractors. The parties are independent contractors. Under no circumstances will the employees of one party be deemed the employees of the other. This Agreement does not grant authority for either party to act for the other in an agency or other capacity, or to make commitments of any kind for the account of or on the behalf of the other.

Severability. If any provision of this Agreement is determined to be invalid or unenforceable, it will be deemed to be modified to the minimum extent necessary to be valid and enforceable. If it cannot be so modified, it will be deleted and the deletion will not affect the validity or enforceability of any other provision unless, as a result, the rights of either party are materially diminished or the obligations and burdens of either party are materially increased so as to be unjust or inequitable.

THIS IS A MASTER PASSWORD. WE RECOMMEND YOU CONTACT A QUALIFIED FILEMAKER DEVELOPER SUCH AS QUECENTRIC, COLIN QUARELLO, AT COLIN@QUECENTRIC.COM OR 877-235-6783, FOR USE WITH THIS MASTER PASSWORD. APPARELMAGIC CANNOT BE RESPONSIBLE FOR ANY ERRORS, BUGS, MODIFICATIONS OR RESULTS OF SUCH MODIFICATIONS. SYSTEM MODIFICATIONS MAY EFFECT OR IMPAIR OTHER PROCESSES AND SCRIPTS IN THE SYSTEM.

PLEASE BACK UP ANY FILE BEFORE MAKING ANY CHANGES. PLEASE TEST CHANGES IN AN ANCILLARY FILE OR TEST FILE BEFORE MAKING CHANGES TO THE MAIN FILE.