SOFTWARE DISTRIBUTION AGREEMENT

This Software Distribution Agreement (hereafter "Agreement") is entered into by and between (hereafter "Software Owner") and Mobisofia S.r.l., a company with principale office at Via Sesto, 41 - Cremona (hereafter "Publisher") (each, a "Party"; together, the "Parties").

Grant and Reservation of Rights
1. License to Use & Distribute: Software Owner grants Publisher and Publisher's authorized sales agents ("Channel Partners") the non-exclusive right and license to use, distribute, copy (in connection with electronic distribution only), market and license in any media throughout the world (including CDs, scratch cards, gift cards, CompactFlash cards, SD cards, MultiMedia cards, the world wide web, on-device clients, and other commercially acceptable means) the computer programs and user manuals (hereafter collectively, "Software"), now or later owned by Software Owner.
2. Trademark License: Software Owner grants Publisher a non-exclusive, worldwide, royalty-free right and license to use its trademarks, trade names, service marks, logos or other identifying or distinctive marks (hereafter collectively, "Marks"), provided that Publisher will comply with Software Owner's trademark usage guidelines. Publisher shall not modify the Marks unless authorized by Software Owner.
3. Distribution: Publisher, at its sole discretion and at any time, may refuse to distribute any piece of Software from Software Owner that it deems inappropriate for any reason. In addition, Publisher, at its sole discretion and at any time, reserves the right to choose which channel(s), as described in Attachment B ("Channels"), if any, to distribute the Software.
4. Demonstration License: Software Owner grants Publisher a royalty-free nonexclusive right and license to use, publicly display, publicly perform, and duplicate the Software either directly by Publisher's employees or through Publisher's Channel Partners solely for the purpose of marketing or demonstrating the Software to prospective customers. Such marketing or demonstration efforts may include demonstrating the Software online via an Internet accessible emulation device, webcasting, or other means.
5. Suites: Publisher reserves the right to ask Software Owner to refrain from incorporating the word "Suite" in the Software name. Upon receipt of this request in writing, Software Owner must make any necessary changes to the Software within twenty-one (21) days.
Obligations of Software Owner
Software Owner will not forward the Customer Information it receives from Publisher (as defined in Section 3(c)) to any third parties. Unless otherwise noted, Software Owner will provide, at no charge, to Publisher or, where applicable, to the customer, the following:
1. Promotional Material: Marketing materials and user manuals in all reasonably available media for use, at the Publisher's sole discretion, in marketing, installing or using the Software.
2. Software Distribution: The Software in a form suitable for electronic reproduction and distribution. Before delivering any computer program to Publisher, Software Owner must first test the computer program to ensure it is, to a reasonable extent, free of defects.
3. Bug Fixes: Bug fixes or software patches as are reasonably required to ensure proper operation of the Software in accordance with its accompanying documentation.
4. Enhancements: Upgrades or enhancements for the Software within fourteen (14) days of their release, provided that the Software Owner may, at its sole discretion, charge customers for such upgrades or enhancements.
5. Customer Care: Technical support that is accessible via e-mail or telephone during normal business hours to customers who purchase the Software. The level of support must, at a minimum, be in accordance with Software Owner's support policies then in effect.
Obligation of Publisher
1. Marketing: Publisher will bear all expenses for its operation and staff. Publisher will advertise and promote the Software at Publisher's sole discretion and expense.
2. Publisher's Services: Publisher will use reasonable efforts to provide installation assistance, technical training for end users and first level support and maintenance services, which will include resolving problems not primarily caused by the Software's malfunction.
3. Reports: Publisher will use reasonable efforts to provide Software Owner on a monthly basis an Invoice Report that identifies the number of customers who purchased the Software and have submitted payment to Publisher and other information not considered to be personally identifiable (collectively, "Customer Information"), provided Software Owner is not in breach of any of its obligations.
4. Customer Information: Software Owner shall not use the Customer Information provided by Publisher, including the telephone number, postal address and email address of the customer, to contact the customer, except that Software Owner may use the Customer Information to provide registration or unlock information to the customer to activate and use the Software, unless Publisher indicates to Software Owner that the customer has opted in to be contacted by the Software Owner for other purposes, such as to receive marketing and promotional offers. Software Owner shall not provide the Customer Information to third parties or related parties for purposes of marketing or promotional offers and shall use reasonable effort to ensure that any Customer Information provided to third parties is not used for unsolicited marketing or promotion. Software Owner acknowledges that any unsolicited email contact with a customer may result in a violation of the Privacy Code.
5. Returns: Returns from customers will be made in accordance with Publisher's Return Policy as described on Publisher's website at www.mobisofia.com, which Return Policy may be updated by Publisher at its sole discretion and at any time.
Price and Payment
1. Volume Pricing: Software Owner will provide Publisher with a volume pricing model for all Software unless Software Owner elects to use Publisher's standard volume pricing model for any Software. Consistent with the foregoing, if Software Owner does not supply Publisher with a volume pricing model for any Software, Publisher and Publisher's Channel Partners may use Publisher's standard volume pricing model for sales of that Software in multiple quantities. The volume pricing model used for sales of Software in multiple quantities will determine the Suggested End-User Price for the Software. Software Owner may view Publisher's standard volume pricing model through Software Owner's online account with Publisher accessible via Publisher's website, and Publisher may update Publisher's standard volume pricing model at its sole discretion and at any time.
2. Invoice Procedure: Publisher will invoice its customers and collect all amounts due.
3. Payments: For each customer of Publisher that purchases the Software, Publisher will remit the amounts due Software Owner pursuant to the terms set forth in Attachment A ("Software Partner Program"), less any taxes Publisher withholds, within one (1) month after the close of any month in which Publisher receives full payment from that customer.
Proprietary Rights
1. Ownership by Software Owner: The parties agree that Software Owner owns all proprietary rights, including copyrights, patents, trademarks, and trade secrets, in and to the Software and that this Agreement does not transfer ownership of any of these rights.
2. Ownership by Publisher: The parties agree that Publisher owns all proprietary rights, including copyrights or trademarks, in any marketing materials created, modified or otherwise prepared by Publisher which may contain Software Owner's proprietary materials, including copyrights or trademarks.
3. Upon termination or expiration of this Agreement, for whatever reason, Parties shall immediately cease all use of any material subject to the other Party's proprietary rights and shall return or upon instruction from it, destroy all above mentioned material. The Parties agree that thereafter they will not use any of the aforesaid material and they will not instruct any third party to do so.
Warranties and Indemnification
1. General Warranties: Each party represents and warrants that it has the full power, legal right and authority to enter into this Agreement and perform its obligations hereunder.
2. Warranties by Software Owner: Software Owner represents and warrants that all Software are, as far as Software Owner can reasonably determine, free of any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept, or expropriate any system data or personal information. Furthermore, Software Owner warrants that it has used commercially reasonable means to determine if the Software infringes upon any patent, copyright, trade secret, or any other third party personal or proprietary right, and has determined that the Software provided to Publisher pursuant to this Agreement does not violate any third party's intellectual property rights.
3. Duty to Indemnify: Software Owner shall defend, indemnify and hold harmless Publisher, as well as Publisher's Channel Partners that resell the Software, against any and all liability, suits, claims, losses, damages and judgments, and shall pay all costs (including reasonable attorney's fees) and damages to the extent that such liability, costs or damages arise from a claim that the Software infringes any patent, copyright, trade secret, or any other third party personal or proprietary right. Software Owner shall indemnify Publisher, as well as Publisher's Channel Partners, against any and all penalties arising from Software Owner's violation of The Privacy Code and any other laws prohibiting unsolicited email promotions. Software Owner's obligations under this Section are conditioned upon it being given prompt notice of each such claim received in writing by Publisher. Publisher shall indemnify and hold harmless Software Owner against any and all liability, suits, claims, losses, damages and judgments, and shall pay all costs (including reasonable attorney's fees) and damages to the extent that such liability, costs or damages arise from a claim that the Publisher infringes any patent, copyright, trade secret, or any other third party personal or proprietary right. Publisher shall indemnify Software Owner against any and all penalties arising from Publisher's violation of the Privacy Code and any other laws prohibiting unsolicited email promotions. Publisher's obligations under this Section are conditioned upon it being given prompt notice of each such claim received in writing by Software Owner.
4. The Parties agree to work together in good faith to inform each other of problems with Software.
Liability
Limitation of Liability: In no event shall either party be liable to the other for any direct, indirect, special or consequential damages (including but not limited to loss of anticipated profits) in connection with or arising out of this agreement or the furnishing, functioning, use, distribution or marketing of the software or any related item or service provided by the Software owner or the Publisher.
Force Majeure
Neither Software Owner nor Publisher shall be liable for delay in the performance of this Agreement arising from any causes beyond the reasonably control of the party concerned; and the time for performance by such party shall be extended by the period of any such delay; provided, however, that if any such delay shall continue for a period of 30 days, Publisher shall have the right to immediately terminate this Agreement upon written notice to Software Owner.
Terms and Termination
1. In General: This Agreement commences on the date of the last signature, electronic via online acceptance or otherwise, and shall remain in effect for twelve (12) months (the "Term"). This Agreement automatically renews for successive twelve (12) month periods (the "Renewals"), unless either party notifies the other party in writing, at least sixty (60) days before the end of the Term or any Renewals, of its election not to renew.
2. Termination: This Agreement may be terminated by either party upon providing three months written notice to the other party. If one party materially breaches this Agreement the other party may immediately terminate this agreement by providing written notice to the breaching party of the actions constituting the breach and the election to immediately terminate.
3. Final Termination Reports: Within thirty (30) days of termination of this Agreement, Publisher shall provide Software Owner with a statement of all sums due to Software Owner under this Agreement.
4. Rights and Duties Upon Termination: In the event of expiration or termination of this Agreement:
  1. Publisher shall not license, sell or otherwise dispose of the Software to any third party after such expiration or termination.
  2. Software Owner shall be responsible for continued support of past and future sales of the Software.
5. Return of Software: Upon termination or expiration of this Agreement, Publisher shall deliver to Software Owner all Software, including code and documentation, covered by this Agreement or destroy or erase any versions of such material which cannot be returned to Software Owner.
6. Survival: The provisions of Sections 5, 6c, 6d, 6e, 6f, 7, 8, 9a, 9b, 9d, 9f, and the representations made at the end of this Agreement and in Attachment A to this Agreement will survive any termination of this Agreement.
Miscellaneous
1. Notices: All notices under or relating to this Agreement may be sent by e-mail or by registered mail to the address below or to any other address the party may designate in writing.
2. Notices to Publisher: (see Publisher's website at www.mobisofia.com for Publisher's contact information).
3. Notices to Software Owner: (see contact information below).
4. Integration: This Agreement and its Attachment(s), attachments, and/or addenda, if any, set forth the entire understanding of the parties with respect to the subject matter of this Agreement and supersede all prior agreements, understandings and negotiations with respect to the subject matter hereof.
5. Amendment: Publisher may, from time to time, modify the terms of this Agreement by:
  1. posting the revised agreement on Publisher's website and notifying Software Owner of the change by e-mail
  2. forwarding a copy of the revised Agreement to Software Owner, whether electronically or through a postal service
  3. any other means reasonably calculated to inform Software Owner of the terms of the revised agreement. Unless Software Owner objects to the revised agreement in writing to Publisher within thirty (30) days of receiving notice of the change, in which case no revision will take effect, Software Owner will be deemed to have accepted the terms of the revised Agreement and the as-revised Agreement will take effect and be binding on both parties at the end of Software Owner's thirty (30) day objection period. No modification, amendment, supplement to or waiver of any provision of this Agreement shall be binding upon the Parties unless in writing and accepted by Software Owner in the manner described above or signed by both Parties.
Governing Law
1. This Agreement is to be construed in accordance with the law of the Republic of Italy. Any dispute or litigation based on, related to or arising out of this Agreement must be brought and maintained in Italy before the Court of Milan.
2. Acquisition. Neither party may assign this Agreement, or sublicense, assign or delegate any right or duty hereunder, without the prior written consent of the other; except that either party may assign its rights and obligations under this Agreement to any third party in connection with any merger, sale of assets or other reorganization or consolidation transaction, provided that the third party to whom the rights will be assigned first agrees in writing to assume the assigning party's obligations under this Agreement.
3. Legal Effect. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
4. Counterparts/Facsimiles. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For the purposes hereof, a facsimile copy of this Agreement including the signature pages hereto, shall be deemed an original.

BY COMPLETING THE INFORMATION AND CHECKING THE "I AGREE" BOX, YOU REPRESENT AND WARRANT THAT THE INFORMATION PROVIDED BELOW IS TRUE AND ACCURATE, YOU ARE AT LEAST 18 YEARS OLD, AN AUTHORIZED REPRESENTATIVE OF THE SOFTWARE OWNER AND HAVE THE POWER AND AUTHORITY TO ENTER INTO AND BIND SOFTWARE OWNER TO THIS AGREEMENT. YOU AND THE SOFTWARE OWNER, ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT (WHICH INCLUDES ALL ATTACHMENTS), UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

ATTACHMENT A

SOFTWARE PARTNER PROGRAM

All trial versions of the Software provided by Software Owner pursuant to this Agreement must clearly direct the customer only to the Publisher to register and/or purchase the Software. The reference to the Publisher within the trial version of the Software must include the main URL of Publisher's website at www.mobisofia.com or a specific web page accessible through www.mobisofia.com and must be displayed, at a minimum, in the registration screen.

If any Software does not contain a registration screen, then the reference and link to the Publisher and the Publisher's website must be displayed in all comparable introductory or informational screens. Consistent with the foregoing, Publisher grants to Software Owner a limited royalty-free nonexclusive and non-transferable license to incorporate and display the Publisher's Marks in the Software computer programs.

Software Owner will provide the Suggested End-User Price for all Software being distributed pursuant to this Agreement. At no time shall the Software's Suggested End-User Price provided to Publisher be higher than the Software's Suggested End-User Price provided to other distributors. The actual retail price of the Software to be determined by Mobisofia may differ from the Suggested End-User Price provided by Software Owner. Publisher may discount any or all Software up to 25% off the Suggested End-User Price for special offers and promotions.

For any Software sold through Publisher's Channels via credit/debit card, Publisher shall pay Software Owner a royalty equal to 70% of the Gross Revenue excluding taxes.

IT IS THE PARTIES' EXPRESS INTENT TO CONCLUDE AND BE BOUND BY THE TERMS OF THIS AGREEMENT EVEN IF A COURT OF COMPETENT JURISDICTION FINDS THE AGREEMENT DOES NOT FIX THE PRICE(S) FOR THE SOFTWARE TO BE DISTRIBUTED UNDER THIS AGREEMENT.

Attachment B

CHANNELS

Publisher's main website, www.mobisofia.com, is the Basic Channel.

On Behalf of Software Owner:
Primary Contact Name:
Business Address:
Phone (Business):
E-mail (Business):
Alternate E-mail:
Date: 14-05-2008

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