1. Overview

The Platform provides You with the means to browse and search talent and films; create comparables; view trends, news and other information about films and talent; perform financial modeling; and use various analytics and predictive analytic tools and forecasts, with current and prospective films and talent. The Platform is offered through Cinelytic website https://www.cinelytic.com.

2. Your Use of the Platform

2.1 (BETA USE ONLY) Subject to Your full compliance with the terms and conditions of this Agreement, we hereby shall provide you with Services related to our Platform and/or hereby grant You a limited, revocable, non-transferable, non-exclusive, non-assignable, non-sub-licensable license during the Term to access the Platform as specified in the Order. This license is on an evaluation basis solely for your own internal business use for the purpose of evaluating its features, functions and usability and to assist us in preparing the Service for broader commercial use. There is no charge for the license granted herein under Section 2.1. Except for this license granted to you, Cinelytic retains all right, title, and interest in and to the Service, including all related intellectual property rights, including to any improvements, modifications, inventions, ideas or trade secrets that result from this beta test program. Except as expressly permitted herein, You will not disclose any portion of the Platform or provide access to the Platform to any non-Customer personnel or entity for any purpose. Except for those rights expressly set forth herein, we reserve all rights in and to the Platform.

2.1 (COMMERCIAL USE ONLY) Subject to Your payment of all fees and Your full compliance with the terms and conditions of this Agreement, we hereby shall provide you with Services related to our Platform and/or hereby grant You a limited, revocable, non-transferable, non-exclusive, non-assignable, non-sub-licensable license during the Term to access the Platform as specified in the Order. You shall be fully responsible for the use of the Platform in accordance with this Agreement. Except as expressly permitted herein, You will not disclose any portion of the Platform or provide access to the Platform to any non-Customer personnel or entity for any purpose. Except for those rights expressly set forth herein, we reserve all rights in and to the Platform.

2.2 You may only use the Platform in connection with your business, and not for the benefit of any other person or entity. You are solely responsible for Customer Materials (defined below) used in the connection with the Platform. If You are using the Platform or our Services on behalf of a third party, then You represent and warrant that You have obtained all necessary approvals from such third parties in writing to use the Platform and that Customer shall be solely liable for the acts, omissions and content of such third parties. Furthermore, if Customer allows any affiliate to utilize the Platform and Services, such Customer shall be liable for the acts, omissions and liabilities of such affiliate.

2.3 You may not (i) use data mining, robots, screen scraping, or similar data gathering and extraction tools on this Site, except with our express written consent as noted below; (ii) reverse engineer, decompile, translate, adapt or disassemble the Platform; (iii) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (iv) use the Platform in any manner that intentionally damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Platform; (v) attempt to gain unauthorized access to the Platform; (vi) use the Platform to build a similar or competitive product or service; or (vii) use the Platform for any purpose or in any manner that is unlawful or not expressly authorized by this Agreement. You further may not (viii) copy, reproduce, modify, damage, disassemble, decompile, reverse engineer or create derivative works of any Service or any portion thereof; (viiii) breach, disable, tamper with, or develop or use (or attempt) any workaround for, or otherwise damage any Service or any security measure thereof; (x) set, read, write, modify or delete any cookie on a Cinelytic owned or operated domain; (xi) unless specifically requested, pass personally identifiable information to Cinelytic, or otherwise associate a cookie, web beacon, or other mechanism with personally identifiable information.

2.4 You will ensure the legality, appropriateness, and accuracy of all Customer Materials you make available for use in, with, or through the Platform or provide to us in connection with our Services. You will obtain all third-party licenses, consents and permissions needed in connection with the use, reproduction, performance and display of such Customer Materials in connection with the Platform.

2.5 We may provide You with IDs and passwords (collectively, “Logins”) to access the Platform. You must safeguard all Logins at all times and not allow their use by any party other than Your employees without our prior written consent. You acknowledge that we have the right, but not the obligation, to monitor the logon times and usage under each Login for the purpose of verifying that You and Your permitted users are the sole holders and users of the Logins and are in strict compliance with this Agreement. You shall be fully responsible for all use of the Platform under the Logins provided to You.

3. Customer Materials

3.1 As between us and You, You own and shall retain all rights in and to all content and materials that You upload in connection with the Platform or any public-facing components of Your websites, including all financial, compensation and performance data, film details, and movie and actor images and movie trailers (collectively, “Customer Materials”). You hereby grant Company a limited license during the Term to use the Customer Materials solely to provide the Platform and Services to You and as otherwise contemplated by this Agreement. Except as described herein, all intellectual property rights in and to the Customer Materials will remain vested in Customer and/or its licensors.

3.2 You will not post or otherwise distribute any Customer Materials through the Platform that (i) is promotional in nature, including solicitations for funds or business, or constitutes junk mail, spam, chain letters, pyramid schemes or the like; (ii) constitutes the personally identifiable information of any other person that such person has not authorized you to disclose or (iii) are obscene, illegal, harmful to minors or which promote illegal behavior or which infringe upon the rights of any third party (including without limitation any intellectual property rights). You are solely responsible for the Customer Materials that you utilize with or post on the Platform or transmit to us and agree that You will not hold Company responsible or liable for Customer Materials or any materials from other users that You access on the Platform or through our Services. Categories of prohibited Customer Materials below are merely examples and are not intended to be exhaustive. We will make the sole determination as to whether or not Customer Materials are acceptable for the Platform and/or for use by us in connection with our Services. Without limitation, You agree that You will not post or transmit to other users anything that is defamatory, abusive, obscene, profane or offensive; infringes or violates another party's intellectual property rights (such as materials for which You do not have written authority from the owner of such materials to post on the Platform); violates any party’s right of publicity or right of privacy; is threatening, harassing or that promotes racism, bigotry or hatred of any kind against any group or individual; promotes or encourages violence against a person or damage or destruction of property; is inaccurate, false or misleading in any way; is illegal or promotes any illegal activities; promotes illegal or unauthorized copying of another person's copyrighted work or links to them or providing information to circumvent security measures; contains “masked” profanity (i.e., F*@&#); contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; contains any advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation.

5. Company Intellectual Property

5.1. Except for the limited rights set forth herein, You do not acquire any rights in the Platform. Company and its licensors own, and shall continue to own, all intellectual property rights in and to all portions of the Platform (as well as any improvements, enhancements or modifications thereof, including any and all trademarks, patents, copyrights or trade secrets in connection therewith). All rights not specifically granted to You hereunder are retained by Company. You will not remove or obscure any copyright, trademark or patent notices that appear on the Platform or its output. You shall take no position contrary to, or that would diminish, Company’s ownership rights set forth herein. Further, You may not use any of the trademarks, trade names, service marks, copyrights, or logos of Company in any manner which creates the impression that such items belong to or are associated with you or are used with Company’s consent, and you acknowledge that you have no ownership rights in and to any of such items.

5.2 In the course of using the Platform, You will be provided information from a variety of third party sources, including without limitation, licensed prior performance, box office, agent/actor representation, talent and other relevant data from Studio System (studiosystem.com), The Movie Database (themoviedb.org), and Variety Insight (varietyinsight.com) — (all three licensed data sources, “Licensed Data”). We hereby pass through all terms of use and licenses to the Licensed Data to You and You agree that we are not responsible for and make no representation as to the accuracy, usefulness, safety, or intellectual property rights of or relating to such content.

5.3 The Cinelytic website and Platform may contain links to other web sites and social media pages not maintained or operated by us. Other web sites may also reference or link to our website or Platform. We encourage you to be aware when you leave our website or Platform and to read the terms and conditions and privacy statements of each and every website that you visit. We are not responsible for the practices or the content of such other, third party web sites.

6. Feedback

6.1 (BETA USE ONLY) We may monitor the performance, and Your use, of the Services, and Cinelytic may use any such resulting information for any purpose. During the Term, You also agree to provide feedback concerning the Service, including through questionnaires and other surveys designed to identify potential errors and improvements and any usage or other data that we may gather or which You may provide in connection herewith (“Feedback”). You hereby grant Cinelytic the unrestricted and perpetual right to use your Feedback, including the right to use your Feedback to improve the Service and create other products and services, as well as to create case studies, client mailers and reports, advertisements, testimonials and other promotional materials.

6.1 (COMMERCIAL USE ONLY) You are not required to provide any suggestions, enhancement requests, recommendations or other feedback regarding the Services or Platform (“Feedback”). If, notwithstanding this policy, you submit Feedback, you understand and acknowledge that such Feedback is not submitted in confidence and we assume no obligation, expressed or implied, by considering it. You further understand that such Feedback is hereby irrevocably assigned to us, and that we shall be the sole, exclusive and incontestable owner of such Feedback, and all known or hereafter existing rights thereto, everywhere in the world. Without limiting the foregoing, to the extent any such assignment is deemed unenforceable, you hereby grant Company a royalty-free, worldwide, transferable, sublicenseable, irrevocable, and perpetual license to use or incorporate into the Platform and/or Services (or any other services or platforms) any Feedback so provided in Company’s sole discretion, without compensation to you.

7. Confidential Information

7.1 During the Term, each party will have access to certain Confidential Information (defined below) of the other party. Each party agrees: (a) not to disclose the Confidential Information of the other Party to anyone except its employees, contractors, and advisors on a strict need to know basis and subject to a written duty of confidence, (b) to use the Confidential Information strictly for the performance or receipt of services under this Agreement. “Confidential Information” means all written or oral information, disclosed by either party to the other that has been identified as confidential or that by its nature ought reasonably to be considered confidential, including but not limited to all Feedback provided by You. Information relating to the Services and Platform is the Confidential Information of Company. These obligations will not apply to information that (i) is or becomes publicly available through no fault of the recipient, (ii) is already in the recipient’s possession at the time of its disclosure without any duty of confidence, or (iii) is independently developed by the recipient without use of the disclosing party’s Confidential Information. Each party may disclose Confidential Information to the extent required: (x) by securities laws, (y) to comply with a court or governmental order, or to comply with applicable law, or (z) to establish or preserve a party’s rights under this Agreement.

8. Warranties

8.1 Each party represents and warrants that (i) it has the right and authority to enter into this Agreement and perform its obligations, covenants and promises hereunder and (ii) it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation.

8.2 Customer represents and warrants that (i) it owns, or has acquired the express written authority to use, all of the Customer Materials; (ii) the Customer Materials do not contain any harmful or disabling software code, including without limitation any virus, time-bomb or trojan horse; (iii) it and the Customer Materials shall comply with all applicable laws, rules and regulations in connection with the use of the Platform (including without limitation all Privacy Laws) and (iv) it and the Customer Materials will not violate or infringe upon the rights of any third party (including without limitation any intellectual property, privacy, publicity or contractual rights). For avoidance of doubt, Customer will: (i) be solely responsible for all use of Services hereunder (it being understood that nothing in this clause will be deemed to limit Cinelytic’s obligations with respect to the provision of Services hereunder); (ii) use the Services in compliance with Customer’s other agreements; and (iii) comply with the Terms and Conditions herein and all other policies provided to Customer by Cinelytic or any of its partners, including its sources of Licensed Data.

Customer acknowledges that the provision of search tools, predictive forecasts, talent and film valuations, financial modeling, and other research and analytics is not an exact science and the results of such searches, tools, forecasts, valuations, modeling and research and analytics are limited by the sources of information and Licensed Data on which they are based, sampling techniques, the timing and dates on which such research was conducted, and the predictive limits of any methods, systems or algorithms used. The results of any Services or the Platform are thus based on our reasonable efforts to compile and analyze the best sources of information reasonably available to us at the time and are subject to change, and further, such results are estimates, derived from sampling and other techniques, and are subject to statistical error. Client accepts that any subsequent change in market conditions on which the assumptions are based, or to the Platform or Services themselves, could impact the output or predictions including possible invalidation of the results. Moreover, the validity of research may be adversely affected by subsequent changes including cultural, economic, social, political and other developments. We reserve the right to modify such Services and/or Deliverables to the extent additional or different information becomes available to us. For the avoidance of doubt, we will not be liable for the use of any conclusions contained in the Services or other output of the platform, and give no warranty with respect thereto. Findings and other Deliverables are prepared for the internal use of Customer, and we hereby disclaim any liability for any use or reliance of the Services or output of the Platform.

8.3 (BETA USE ONLY) By signing this Agreement and utilizing the Platform and/or Services, You hereby waive and relinquish all rights and remedies, at law, in equity, and otherwise, and release Company and its directors, officers, employees, agents, subcontractors, partners, parents, subsidiaries and affiliates (“Released Entities”) in full, and hereby agree that the Released Entities shall bear no risk or liability whatsoever with respect to any and all loss and expense as a result of any actual or threatened claim, suit or proceeding by You or any third parties concerning this Agreement, the Platform, or the Services.

8.4 YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SERVICE AND PLATFORM IS COMPATIBLE WITH YOUR EQUIPMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. CINELYTIC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THE OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. CUSTOMER ACKNOWLEDGES THAT CINELYTIC HAS NO CONTROL OVER THIRD PARTY CONTENT, LICENSED DATA, INFORMATION OR MATERIALS INCLUDING WITHOUT LIMITATION, ANY PRIVACY DISCLOSURES ON THIRD PARTY SITES OR THIRD PARTY DISCLOSURES GENERALLY. ADDITIONALLY, CINELYTIC SHALL NOT BE RESPONSIBLE FOR ANY DELAYS OR OUTAGES CAUSED BY ANY THIRD PARTY PLATFORMS. FURTHER, CINELYTIC SHALL ASSUME NO LIABILITY AMOUNTS OR INDEMNITY OBLIGATIONS WITH RESPECT TO ENSURING THAT CUSTOMER’S USE OF THE SERVICES OR CINELYTIC’S INTELLECTUAL PROPERTY COMPLY WITH ANY LAWS OR REGULATIONS OUTSIDE THE UNITED STATES AND CUSTOMER SHALL BE SOLELY LIABLE FOR SUCH COMPLIANCE. CINELYTIC DOES NOT MAKE ANY REPRESENTATIONS REGARDING THE BENEFITS OR RESULTS THAT CUSTOMER OR ANY THIRD PARTIES SHALL RECEIVE FROM THE PLATFORM. THE PLATFORM IS NOT INTENDED TO BE USED FOR, AND CINELYTIC SHALL BEAR NO RESPONSIBILITY FOR, THE USE OF THE PLATFORM AS A LEGAL, ACCOUNTING, TAX, OR INVESTMENT SERVICES TOOL.

9. Indemnity

9.1 You will defend, indemnify, and hold harmless Company and its subsidiaries, affiliates, and parent companies, licensors and partners, and their respective directors, officers, employees, agents, successors and assigns, from and against any Losses related to or arising out of (i) Your negligence or willful misconduct, (ii) any claims resulting from reliance on the Services or output of the Platform; (iii) any claims based on an allegation that would constitute a breach of a representation, warranty or obligation under this Agreement by You; (iv) Your use of the Platform or Services; and/or (v) any Customer Materials. You agree and acknowledge that Company shall have no indemnification obligations under this Agreement.

9.2 You shall promptly notify us in writing of the claim for which we are seeking indemnification. You shall control the defense of the indemnified claim, including through choice of counsel, provided that we may appear at our own expense through our own counsel. You may not settle any indemnified claim without our prior written consent.

10. Limitation on Liability

10.1 IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES. IN NO EVENT WILL OUR OR OUR LICENSORS’ OR PARTNERS’ AGGREGATE LIABILITY TO YOU EXCEED THE FEES PAID BY YOU TO COMPANY IN THE PRIOR ONE (1) MONTH. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THESE LIMITATIONS OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES AND PLATFORM TO YOU.

11. Term; Termination

11.1 Unless set forth in the applicable Order otherwise, the initial term of this Agreement shall begin on the Order Effective Date and continue until the Order End Date (“Term”), unless the Agreement is terminated earlier in accordance with the terms of this Agreement.

11.2 Cinelytic may terminate this Agreement for cause: (i) upon ten (10) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or assignment for the benefit of creditors.

11.3 We may terminate this Agreement for convenience upon written notice to You at any time in our sole discretion, without further notice. Additionally, we reserve the right to immediately suspend Your access to the Services and/or Platform (in whole or in part) at any time in order to prevent any harm or threatened or suspected harm to Company, the Services, our website or the Platform.

11.4 We may suspend Your access to all or any part of the Services or Platform upon ten (10) days’ notice to You of non-payment of any amount past due or Your breach of this agreement. If Your access to the Services or Platform is suspended, we may charge a re-activation fee to reinstate Your access.

11.5 Upon termination or expiration hereof, You will immediately stop all use of the Platform and the Services.

12. General Terms

12.1 You may not assign or otherwise transfer Your rights or delegate Your obligations under this Agreement, in whole or in part, and any attempted assignment by You shall be null and void. Company may freely assign or otherwise transfer this Agreement and any and all rights hereunder for any reason including any acquisition of all or substantially all of Company’s assets or by way of merger or other change of control.

12.2 We may identify You as a customer and include Your logos and screen shots from Campaigns in our marketing materials (including our websites).

12.3 This Agreement shall be governed exclusively by the laws of the State of New York, irrespective of the conflict of law rules of any jurisdiction. Each party agrees that in the event any controversy, claim or dispute should arise under this Agreement or relating in any manner hereto, the parties shall first endeavor to resolve the matter by good faith negotiations between the Parties. If negotiations fail to resolve any controversy, claim or dispute between the parties, the parties must submit such controversy, claim or claim dispute to binding arbitration. The arbitration shall be conducted by a single arbitrator in New York, New York in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitrator must be an attorney licensed to practice law in the State of New York. All substantive legal matter submitted or presented in, or by such arbitration, shall be resolved exclusively by the laws of the State of New York. Each Party shall bear its own expenses of any arbitration arising out of this Agreement, but shall share in the cost of any arbitrator. The judgment or award of the arbitrator may be entered by any court of competent jurisdiction.

12.4 If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties. Failure of either party to act in the event of a breach this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.

12.5 Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Company to support@cinelytic.com, or if to You, to the email or physical address associated with Your account.

12.6 Except with respect to Your payment obligations, neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, shortage of materials, failure of transportation or communications or of suppliers of goods or services, power failures, and Internet disturbances, changes to any third party platforms, any usage restrictions imposed by any such third party platforms, or any delays or outages arising in connection with such third party platforms, and the malicious acts of third parties (e.g. cyber attacks).

12.7 Each party is an independent contractor with respect to the other party hereunder. This Agreement shall not be construed to (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the parties, or (ii) authorize any party to enter into any commitment or agreement binding on the other party.

12.8 Company does not represent that materials in the Service and Platform are appropriate or available for use in any particular location. Those who choose to access the Service and Platform do so on their own initiative and are responsible for compliance with all applicable laws. Software from the Service and Platform is subject to U.S. export controls and may not be downloaded, exported or re-exported: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List (together referred to as “U.S. Prohibited Party Lists”). By downloading or using such software, you represent and warrant that you are not (a) located in or a national or resident of any country noted above that is subject to U.S. trade sanctions, or (b) on any U.S. Prohibited Party List or acting on behalf of any person or entity on any such list.

12.9 These Terms and Conditions represent the entire understanding of the parties with respect to the subject matter hereof. Company may modify these Terms and Conditions at any time, and such modifications shall be effective immediately. Your continued use of the Platform after such changes are made available to You shall constitutive Your acceptance of such modified terms.