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BlueStack Systems Inc.
Technology License and Services Agreement
This Technology License and Services Agreement ("Agreement) is entered into as of August 18, 2011 (the "Effective Date") by and between BlueStack Systems, Inc., having an office at 2105 S. Bascom Ave, #380, Campbell, California 95008, USA ("BlueStacks"), and Nyxio Technologies Corporation, headquartered at 2156 NE Broadway, Portland, Oregon 97232, USA ("Licensee" or “Nyxio”). In consideration of the benefits and obligations exchanged in this Agreement, the parties agree as follows:
1. CERTAIN DEFINED TERMS. All terms in this Agreement with initial capitals have the meanings set forth in Attachment II - Definitions, unless defined elsewhere. All defined terms in singular form shall include the plural meanings of such terms and vice versa, if applicable. All references to a Section, Attachment or Amendment mean a section, attachment or amendment of this Agreement. All references to this Agreement include all attachments, exhibits, exhibit amendments, and amendments.
2. LICENSE GRANT. BlueStacks grants Licensee a nonexclusive, non-transferable, worldwide and royalty bearing license to use, reproduce, have reproduced, perform, display and distribute the Programs, but solely: (a) for use with or incorporation into Licensee Products; and (b) for the number of Program copies paid for by Licensee at the per Program copy license fees specified in this Agreement. The licenses granted in this Agreement are subject to all terms, conditions, requirements, restrictions and limitations set forth in this Agreement. All rights not expressly granted are reserved by BlueStacks.
3. USE RESTRICTIONS. As a condition to the licenses granted in this Agreement, Licensee shall not itself, nor permit any third party to: (a) sublicense, sell, or otherwise distribute any Program copies separately from Licensee Products, (b) alter, remove, disable or suppress the display of any end-user license agreement, copyright, trademark, trade name, logo or trade dress included as part of the Programs,(c) modify(except as otherwise set forth in this Agreement), translate, reverse engineer, decompile, disassemble, or otherwise attempt to learn the design, structure, algorithms, ideas or source code of any Programs or (d) rent, lease or otherwise provide temporary access to any Programs.
4. ADDITIONAL DELIVERABLES.
4.1. The parties may subsequently add Deliverables, services and/or other items available by BlueStacks, to this Agreement using any one of the following methods:
Method I: (a) Licensee issues a purchase order to BlueStacks for such Deliverables, services and/or other items, referencing this Agreement; (b) BlueStacks issues an invoice to Licensee; (c) BlueStacks delivers the relevant Deliverables, services and/or other items to Licensee; and (d) Licensee pays BlueStacks the applicable fees. Each invoice issued by BlueStacks in response to Licensee's purchase order shall constitute an Amendment to this Agreement.
Method II: (a) BlueStacks issues a quotation to Licensee for any such Deliverables, services and/or other items; (b) Licensee issues a purchase order to BlueStacks for the Deliverables, services and/or other items listed in the BlueStacks quote, provided that Licensee's purchase order must mirror the prices and other terms listed in the BlueStacks quote and references this Agreement; (c) BlueStacks delivers the relevant deliverables, services and/or other items to Licensee; and (d) Licensee pays BlueStacks the applicable fees. Each purchase order issued by Licensee in response to BlueStacks' quotation shall constitute an Amendment to this Agreement.
Method Ill: a written amendment to this Agreement, signed by both parties.
4.2. The terms and conditions of any invoice, purchase order or other business form or written authorization used by Licensee will have no effect on the rights, duties or obligations of the parties with respect to any subsequent Deliverables, services, and/or other items available from BlueStacks, regardless of the failure of BlueStacks to object to those terms or conditions.
4.3 The parties agree that all subsequent Deliverables, services, and/or other items provided by BlueStacks to Licensee shall be subject to the terms of this Agreement (unless otherwise provided in a written agreement duly executed by an authorized representative of each party).
5. FEES, PAYMENT TERMS AND AUDIT.
5.1 Licensee will pay BlueStacks all fees in accordance with the terms of this Agreement. Except as otherwise specified in this Agreement, Licensee will pay all amounts due on net thirty (30) day terms from BlueStacks' invoice date, in United States currency. All amounts due under this Agreement are non- cancelable, and are an absolute commitment.
5.2 Licensee agrees to pay BlueStacks the per-Program copy royalty set forth in this Agreement ("Royalties") for each copy of Program reproduced on a Licensee Product. Licensee will account for and pay all Royalties owed to BlueStacks by submitting monthly Royalty reports to BlueStacks a form reasonably acceptable to BlueStacks. Each such report shall be provided to BlueStacks within thirty (30) days after the end of the subject month, and will be signed by a representative of Licensee who has certified that based on a review of Licensee's records kept in accordance with generally accepted accounting principles, such report accurately sets forth the number of Program copies reproduced on Licensee Products during the subject month. With each Royalty report, Licensee will submit payment for all Royalties due BlueStacks pursuant to such report. Licensee’s obligation to furnish monthly Royalty reports and to make monthly Royalty payments to BlueStacks will continue for as long as Licensee distributes any Programs on Licensee Products. Royalty reports are required even if Licensee reports no distribution of any Programs during a particular month. If Licensee completely stops distributing Programs, Licensee will promptly provide BlueStacks with a final monthly Royalty report, a final Royalty payment for the full amount of all Royalties due, and a written certification that Licensee has stopped all distribution of Programs on Licensee Products.
5.3 Licensee shall maintain for a period of three (3) years following the termination of expiration of this agreement a complete, clear and accurate record of the Royalty reports, payments made, invoices received during such fiscal year sufficient to audit and recalculate any fees due or owing to BlueStacks.
5.4 During the term of this Agreement and for a period of one (1) year thereafter, Licensee agrees that BlueStacks may hire an independent accounting firm to audit all relevant books and records for the sole purpose of determining Licensee's compliance with the obligations of this Agreement in the event of necessity with Licensee’s prior written consent. BlueStacks shall not conduct such an audit more than once in any twelve (12) month period. Any such audit will be conducted at Licensee's premises during regular business hours, after reasonable notice, and in a manner that will not unduly interfere with Licensee's normal business practices. Licensee will provide all reasonable assistance and cooperation that BlueStacks may request during any audit. If the audit should disclose any underreporting of payments due and it is confirmed and verified by Licensee, Licensee shall within thirty (30) days pay BlueStacks such amounts. If the underreporting exceeds twenty percent (20%) of the amount due for the period by which the audit was required, Licensee shall bear the cost of such audit. All late payments shall be subject to an additional charge of a half percent (0.5%) per month, associated with such respective underreporting. In the event that the underreporting is caused due to intentional and/or willful misconduct with convincing evidence, Licensee shall pay the double of the amount of that underreporting plus payment of the fees associated with the audit, interest of a half percent (0.5%) per month, and any direct property loss or damage which arose, from that underreporting to BlueStacks.
5.4 All amounts payable to BlueStacks under this Agreement are exclusive of any taxes and other charges imposed by any federal, state, local, or other governmental entity. Licensee shall be responsible for, and if necessary reimburse BlueStacks for any such taxes and charges, except for taxes based on BlueStacks’ net income.
6. DELIVERY AND INTEGRATION.
6.1 Unless otherwise set forth in this Agreement, BlueStacks will deliver one master copy (“Master”) of the Deliverables in electronic form to Licensee within ten (30) business days after final execution of this Agreement, an Amendment, or in response to Licensee providing a purchase order to BlueStacks. If delivery is via common carrier, then it will be FOB, origin BlueStacks’ facility. If delivery is via BlueStacks’ WWW or FTP site, then: (a) BlueStacks will provide Licensee with all information needed to download such Deliverables; and (b) Licensee shall be deemed to have downloaded and taken possession of all Deliverables on the same date BlueStacks provides Licensee with the information required to complete such download.
6.2 Subject to the terms of this Agreement, BlueStacks grants to Licensee the non-exclusive, non-transferrable right to use and make copies of the External Documentation solely in conjunction with the distribution of Programs on Licensee Products. On Licensee’s sole expense, Licensee will make copies of the External Documentation provided by BlueStacks for its distribution along with the Licensee Products, in order to incorporate it, in whole or in part, into Licensee’s documentation. Any modification of the Documentation shall be communicated in writing to BlueStacks so that such mod