1. Definitions.

The following capitalized terms shall have the following meanings:

1.1. “Scatter” means SIMILE INC. d/b/a Scatter.

1.2. “Competitive Products” means any product that supports the same or similar functionality as the Software.

1.3. “Confidential Information” means any and all Scatter non-public information, including, without limitation, information about inventions, know-how, trade secrets, Object Code, Source Code, Documentation, data sources and trade secrets relating to the Software and any Updates, Upgrades and Modifications thereto.

1.4. “Customer” means the person or entity downloading or using the Software defined herein.

1.5. “Documentation” means any documents, information, directions, explanations, or material, in whatever form, concerning Scatter, the Software or the use of the Software.

1.6. “Effective Date” means the earlier of the date on which Customer accepts this Agreement or the first date on which Customer uses the Software.

1.7. “Modification” means any change, enhancement, addition, or correction to the Software (excluding significant enhancements developed or incorporated into new versions of the Software by the Scatter), or any translation of the Software into other computer languages or other hardware or software environments, or any derivative work based on the Software or any software or documentation created by Customer, in whole or in part, based upon the Software or Documentation.

1.8. “Object Code” means any compiled, assembled, or machine-executable version of the Software, or any part or product thereof.

1.9. “Ordering Document” means the cover page to this Agreement, an amendment to this Agreement or a supplemental ordering document, which shall be in writing and signed by both parties and shall specify Software to be acquired by Customer.

1.10. “Parties” shall mean Scatter and Customer, collectively.

1.11. “Software” means the “Depthkit” software identified in an Ordering Document, in Object Code form only, together with any and all Modifications, Updates, and Upgrades.

1.12. “Source Code” means the human readable form of the Software’s code.

1.13. “Update” means any new version of the Software made available by Scatter to its existing Software customers that contains bug fixes or minor enhancements or improvements, but does not contain significant new features, as determined in Scatter’s sole discretion.

1.14. “Upgrade” means any version of the Software made available by Scatter to its existing Software customers, which contains major enhancements and new features, as determined in Scatter’s sole discretion. Scatter shall not be obligated to provide any Upgrades to the Software.

1.15. “Users” means the individual end-users, including but not limited to Customer employees, making use of the Software.

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2. License Grant; Updates; No Support.

2.1. License Grant. Except as explicitly granted in this Section 2.1, no right or license to the Software, Documentation or any Confidential Information is created by this Agreement. Subject to the terms of this Agreement, Scatter hereby grants to Customer a revocable, non-exclusive, worldwide, fully paid-up, non-transferable, non-assignable right and license to access, use, display, run, or otherwise interact with the Object Code of the Software solely in accordance with the Documentation and only for the number of User seats set forth in the Ordering Document. Customer shall be liable for all use of the Software and Documentation by Users. User login credentials may not be shared.

2.2. Updates. For the term of this Agreement and all renewal terms (as defined on the signature page), Scatter will deliver Updates for the Software as they become available; however, Scatter does not guarantee that there will be any Updates. Upon delivery, a perpetual, revocable, non-exclusive, worldwide, fully paid-up, non-transferable, non-assignable right and license to access, use, display, run, modify or otherwise interact with the Updates, in Object Code form, shall be granted to Customer.

2.3. No Support. Customer acknowledges that support services are not included in the license grant offered hereunder.

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3. Accounts; Payment, Fees, and Other Charges.

3.1. Accounts. In order to use the Software, Customer must have or create an account with Scatter (an “Account”). Customer may receive information from Scatter related to Customer’s applicable license of the Software as a result of that Account. Failure to obtain a valid Account, or a determination by Scatter of Customer’s fraudulent or unauthorized use of the Software may result in reduced functionality, inoperability of the Software, or the termination or suspension (in Scatter’s sole discretion) of Customer’s Account and access to the Software. By using the Software through an Account, Customer also agrees to the applicable terms and conditions for that Account. If Customer does not agree to such terms and conditions for an Account, Customer may not use the Software.

3.2. Payment, Fees, and other Charges. If Customer elects to access any paid component of the Software, Customer agrees to pay all fees and charges associated with that paid component on a timely basis, in the amounts and at the times set forth by Scatter in the Ordering Document or otherwise. Unless otherwise expressly stated, all fees and charges are due and payable up front, are non-refundable, and are exclusive of any applicable federal, state, or local taxes. All such fees and charges (including any taxes and late fees, as applicable) will be charged to the payment method provided by Customer to access such paid component of the Software. Customer agrees to maintain a valid payment method while using the Software. All rights of the Customer to paid components of the Software are conditioned on Scatter’s receipt of full payment of all amounts due. Late payments shall accrue interest at the rate of 1.5% per month until paid in full. Customer’s failure to bring account(s) current will result in immediate suspension of Customer’s access to use the paid component of the Software and may result in reduced functionality of the Software. Scatter shall be entitled to all of its costs of collecting amounts outstanding hereunder, including reasonable fees of its attorneys.
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4. Protection of Software.

4.1. Legends and Notices. Customer shall not remove from any copies of the Software or Documentation any Scatter copyright or trademark notice attached thereto.

4.2. Title. Anything to the contrary contained herein notwithstanding, as between Scatter and Customer, any and all right, title and interest in and to the Software and Documentation, including but not limited to, all copyright, patent, trade secret and other intellectual property rights, and any and all goodwill associated therewith, shall be and remain in and with Scatter, its successors or assigns, subject only to the limited license granted to Customer hereunder. Customer acknowledges and agrees that Scatter has the exclusive right to any and all proceeds, royalties, compensation, or benefit of any kind in connection with any transfer, sale, assignment, license, or sublicense of all, or any part of, the Software and Documentation.

4.3. Feedback. If Customer provides to Scatter feedback regarding usability, features, bugs and test results (collectively, “Feedback”) to Scatter, Customer hereby assigns and agrees to assign to Scatter all such Feedback.  Customer shall execute any documentation reasonably required to vest ownership of such Feedback in Scatter.

4.4. Confidentiality. Customer hereby acknowledges that the Software contains valuable Confidential Information of Scatter. Customer agrees to hold all such Confidential Information in confidence, not to use such Confidential Information except as required to exercise its rights hereunder, and not to disclose such Confidential Information to anyone other than Customer’s employees with a bona fide need to know as designated by an officer of Customer, and only if such employees are governed by a parallel confidentiality obligation of equal or greater force. Additionally, Customer agrees to use at least that degree of care which Customer uses to protect Customer’s own information of a similar proprietary nature, but in no event less than reasonable protection. Excluded from such Confidential Information is information (a) that Customer can prove by clear and convincing evidence that Customer had in Customer’s possession without confidentiality restrictions prior to disclosure, (b) that is known or becomes known to the general public without breach of this Agreement. The obligations herein survive the termination, expiration or cancellation of this Agreement for any cause whatsoever, and remain in force in perpetuity.

4.5. Copies. Except where otherwise stated in the Source Code and its Documentation, Customer shall not copy, in whole or in part, the Software or Documentation for any purpose whatsoever without the express written consent of Scatter.

4.6. Other Restrictions. Customer will not and will not allow a third party to (a) decompile, reverse engineer, disassemble or otherwise attempt to derive, analyze discern or use any Source Code or underlying ideas or algorithms related to the Software without requesting access to the Source Code directly (b) reproduce all or any portion of the Software or the Documentation, other than in accordance with this Agreement and any licenses contained in the Source Code (c) modify or create derivative works of the Software or any content or interfaces contained therein; (d) incorporate the Software into other software; (e) use the Software in any manner not allowed by the Software’s user interface or other than as described above; (f) use any of Scatter’s Confidential Information to create any competitive product or service; (e) market, sub-license, re-sell, loan, rent, pledge or otherwise distribute or commercialize the Software; or (f) disclose or expose any Software to any third party without the express prior written consent of Scatter or otherwise use or allow the use of the Software by or for the benefit of third parties, including without limitation by renting, leasing, lending, timesharing, hosting, outsourcing, subscription service or using for service bureau purposes. Scatter reserves all rights not expressly granted herein, including but not limited to the right to license or sell the Software to any third parties. For avoidance of doubt, no access or license is hereby granted to the Software’s Source Code, except as necessary to execute the Software’s Object Code.

4.7. Automatic Termination. Customer acknowledges and agrees that a breach of the restrictions contained in this Section 4 shall be deemed a material breach of this Agreement. If a restriction in this Section 4 is breached, the license granted in Section 2 above will automatically terminate and be revoked, without any further action from the Scatter.

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5. Disclaimer of Warranty; Limitation of Liability

5.1. Limited Warranty. Subject to the limitations set forth herein, Scatter hereby warrants that, for a period of thirty (30) days from Customer’s download of the Software (the “Defined Warranty Period”), the Software shall substantially operate in accordance with its associated Documentation and extensions thereto. Scatter’s sole liability (and Customer’s exclusive remedy) for any breach of this limited warranty shall be, in Scatter’s sole discretion, to use commercially reasonable efforts to correct such non-conformity, or if Scatter determines it is impracticable to correct the non-conformity within a commercially reasonable period of time, to refund of any amounts paid for the Software in the twelve (12) months immediately preceding such termination. Scatter shall have no obligation with respect to a warranty claim unless it is notified of such claim within the Defined Warranty Period, and this warranty will not renew or reset upon renewal of the license or additional delivery or downloads of the Software after the initial download, unless otherwise offered by the Scatter.

5.2. Exclusions. Scatter is not responsible for any failure or deficiency caused by or associated with (x) circumstances beyond Scatter’s reasonable control, including but not limited to war, insurrection, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, Internet virus or denial of service attacks; or (y) acts or omissions of Customer, its employees, or its agents, including without limitation custom scripting or coding, any negligence, willful misconduct, or use of the Software outside the scope of this Agreement.

5.3. Disclaimer of Warranties. EXCEPT AS OTHERWISE STATED HEREIN, NEITHER SCATTER, ITS LICENSORS, NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, AND HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, CORRECTNESS OR RELIABILITY, REGARDING THE USE AND RESULTS OF THE SOFTWARE, OR THAT USE WILL BE UNINTERRUPTED OR ERROR-FREE, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE.

5.4. Limitation of Liability; Damages. Notwithstanding anything to the contrary contained herein, in no event will Scatter’s total liability hereunder exceed the total amount of fees, if any, received by Scatter from Customer for the Software in the twelve (12) month period immediately preceding the event giving rise to such liability. IN NO EVENT WILL SCATTER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER IN AN ACTION IN CONTRACT, TORT OR OTHERWISE, WHETHER FORESEEABLE OR NOT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, REVENUES, DATA, OR BUSINESS INTERRUPTION, RESULTING FROM OR ARISING OUT OF THE USE OF OR INABILITY TO DELIVER OR USE THE SOFTWARE, EVEN IF SCATTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5.5. Other Limitations. Scatter relies on other third parties to provide complete and accurate information for integration into the Software. Scatter shall not be responsible for inaccurate, incomplete or outdated information, or any errors, claims or liabilities arising out of third-party services, provided through the Software. Scatter reserves the right to include or exclude information, features and services in its sole discretion, from time to time, without notice to Customer. Customer shall be solely responsible for the accuracy and completeness of the information provided by Customer and its Users and the performance of Customer’s website.

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6. Third Party Content, Copyright and Trademark Notices.

6.1. Third Party Materials. SCATTER EXPRESSLY DISCLAIMS RESPONSIBILITY FOR ANY AND ALL SOFTWARE, CONTENT AND MATERIALS ACCESSIBLE, UPLOADABLE OR DOWNLOADABLE THROUGH THE USE OF THE SOFTWARE, INCLUDING USER-GENERATED CONTENT (COLLECTIVELY, “THIRD PARTY MATERIALS”). THIRD PARTY MATERIALS ARE THE PROPERTY OF THEIR RESPECTIVE OWNERS, MAY BE PROTECTED BY U.S. AND INTERNATIONAL COPYRIGHT AND OTHER LAWS AND MAY THEMSELVES BE INFRINGING AND CONTAIN INACCURACIES AND MATERIALS THAT ARE OFFENSIVE, DEFAMATORY OR OTHERWISE UNLAWFUL. CUSTOMER’S OR CUSTOMER’S USERS’ USE OR INCLUSION OF THIRD-PARTY MATERIALS, EVEN IF PROVIDED THROUGH THE SOFTWARE, IS ENTIRELY AT CUSTOMER’S AND SUCH USERS’ OWN RISK.

6.2. Copyright. All Software is owned or licensed by Scatter and is protected by U.S. and international copyright laws.

6.3. Trademarks. “Depthkit” and “Scatter” are trademarks of the Scatter. Customer agrees that:  (a) Customer will do nothing to interfere with Scatter’s ownership of its domain names, tradenames, trademarks, service marks, copyrights, patents and other intellectual property during and after the term of this Agreement; and (b) all use of Scatter’s domain names, tradenames, trademarks and service marks, and all benefit and goodwill associated therewith and derived therefrom, will inure to the benefit of Scatter.

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7. Notices.

When any notice is required or authorized hereunder, such notice shall be given in writing by recognized overnight express service, confirmed facsimile transmission, certified or registered mail, return receipt requested, or personal delivery addressed to the other party as specified below, or such other address as may be communicated in accordance with this Section by the party to be notified; in the case of Scatter, with a copy to support@depthkit.tv; and in the case of Customer, to Customer’s attention at Customer’s address on file with Scatter. A notice shall be deemed given on the date of personal delivery, one business day after confirmed email transmission or after being deposited with the overnight express service, or five days after being deposited in the certified or registered mail, return receipt requested.

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8. Term, Termination and Survival.

8.1. Term. Subject to the terms of this section, the term of this Agreement shall begin on the Effective Date and end on the date that is the end of Customer’s paid license term as set forth on the Ordering Document, unless terminated earlier as set forth herein (the “Term”). Customer may cancel its Account and terminate this Agreement at any time and upon thirty (30) days prior written notice. Scatter shall have the right to terminate this Agreement and Customer’s right to use the Software at any time and for any reason immediately upon written notice to Customer; provided, however, that if Customer has fully paid for a paid component of the Software, then Scatter shall have the right to terminate this Agreement at any time immediately upon written notice if Customer (i) breaches any of the provisions of this Agreement; (ii) files for bankruptcy, insolvency, reorganization or for the appointment of a receiver or trustee for all or part of Customer’s property; (iii) makes an assignment for the benefit of a creditor; (iv) becomes insolvent or its financial stability becomes so impaired as to endanger its ability to pay the fee set forth on the signature page hereto; or (v) experiences a change of control or change of ownership event.

8.2. Renewals. Unless otherwise expressly stated, the parties may agree to renew the Term for paid components of the Software. All renewal terms will be effective upon mutual acceptance of a new Ordering Document.

8.3. Effects of Termination. Immediately following any termination or cancellation of this Agreement or the licenses granted herein, subject to the provisions set forth below, Customer shall pay Scatter the license fee due for the remainder of the applicable Term, and all of Scatter’s obligations hereunder shall cease.

8.4. Survival. Provisions of this Agreement that should by their nature survive any expiration or termination hereof shall so survive, including without limitation Sections 4 and 5. Payments which accrue or are due before termination of this Agreement, shall survive the expiration or termination of this Agreement and such expiration or termination shall not relieve Customer of its obligation to pay any such amounts. Notwithstanding the foregoing, all licenses granted by Scatter hereunder shall terminate simultaneously with any expiration or termination hereof.

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9. Miscellaneous.

9.1. Choice of Law. This Agreement shall be governed by the laws of the state of New York, without regard to the conflict of law principles of such state.

9.2. Waiver. No delay, omission, or failure to exercise any right or remedy provided herein shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.

9.3. Remedies. Customer acknowledges that any breach by Customer of any of the provisions of Sections 2, 4 or 6 hereof, will result in irreparable harm and significant injury to Scatter which may be difficult to ascertain. Accordingly, Customer acknowledges and agrees that Scatter shall have the right to obtain an immediate injunction enjoining any such breach or threatened breach, without having to post bond or prove actual damages.

9.4. Arbitration. Any disputes between the Parties arising from or concerning in any manner the subject matter of this Agreement, other than actions pursuant to Section 10.3 hereof, shall be resolved by binding non-appearance-based arbitration before a single arbitrator in New York County, New York. The arbitration shall be conducted in accordance with the rules and procedures of JAMS then in effect, and the judgment of the arbitrator shall be final and capable of entry in any court of competent jurisdiction. You and Scatter agree to submit to the personal jurisdiction of the courts located within New York County, New York in connection with any entrance of an arbitrator’s judgment or decision or any dispute with respect to the arbitration process or procedure or Scatter’s exercise of its equitable rights or remedies. The prevailing party in such arbitration shall be awarded the costs and fees incurred by it therein, including without limitation reasonable attorneys’ fees.

9.5. Invalidity. If any provision herein is ruled too broad in any respect to permit the full enforcement thereof, then such provision shall be limited only so far as it is necessary to allow conformance to the law, and as so limited shall be deemed a part hereof herein. If any invalid provision may not be so limited, such provision shall be deleted from the Agreement, but the remaining provisions shall remain in full force and effect.

9.6. Assignment. Neither this Agreement nor any of Customer’s rights granted herein may be assigned or transferred by Customer, whether voluntarily or by operation of law, without the express prior written permission of Scatter and any attempt to do so shall be null and void. Scatter may freely assign this Agreement without consent.

9.7. Export. Customer understands that the Software may be a regulated commodity under the export control laws of the United States, as amended from time to time, and the regulations thereunder, and may require a license to be exported. The Software and Documentation may not be exported or re-exported in violation of such laws.

9.8. Relationship of Parties. Nothing herein shall be deemed to create an employer-employee relationship between Scatter and Customer, nor any agency, joint venture or partnership relationship between the Parties. Neither party shall have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.

9.9. Integration. This Agreement together with any Ordering Documents is the complete and exclusive agreement between the Parties with regard to the subject matter hereof and supersedes any and all prior discussions, negotiations and memoranda related hereto, and expressly supersede any click through, browsewrap or similar agreements that Customer or its Users may be required to accept in connection with the subject matter herein. Amendments to this Agreement are not binding unless in writing signed or accepted by both Parties.

9.10. Counterparts. This Agreement may be executed in counterparts. Execution and delivery of this Agreement may be evidenced by electronic or facsimile transmission.

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