GETFUGU TERMS OF SERVICE

This Terms of Service Agreement (“Agreement”) is made by and between Getfugu, Inc. (“GetFugu”), a Nevada corporation, and You (“Customer”, “Your” or “Client”), and is made effective on the date of your visit to www.getfugu.com (the “Site”) (“Effective Date”). This Agreement sets forth the terms and conditions of Your purchase and use of GetFugu’s Augmented Reality Links (each an “ARL”) and/or Voice Recognition Links (each a “VRL”) and explains GetFugu’s obligations to You and Your obligations to GetFugu in relation to the ARLs and/or VRLs You Purchase. Your use of the Site constitutes your consent to the terms of this Agreement. If you do not agree with any of the terms herein, do not use the Site.
This Agreement as well as any additional GetFugu policies, together with all modifications thereto, constitute the complete and exclusive agreement between You and GetFugu concerning the purchase and use of GetFugu’s ARLs and/or VRLs, and supersedes all prior proposals, agreements, or other communications. All GetFugu policies and agreements specific to particular ARLs and/or VRLs are incorporated herein by this reference. By purchasing GetFugu’s ARLs and/or VRLs, You acknowledge that You have read, understood, and agree to be bound by all terms and conditions of this Agreement and any other policies or agreements made part of this Agreement by reference, as well as any new, different or additional terms, conditions or policies which GetFugu may establish from time to time, and any agreements that GetFugu is currently bound by or will be bound by in the future. Other policies available at other areas of the Site may govern Your relationship with GetFugu on matters unrelated to your purchase and use of GetFugu’s ARLs and/or VRLs.
In addition to transactions entered into by You on Your behalf, You also agree to be bound by the terms of this Agreement for transactions entered into on Your behalf by anyone acting as Your Agent, and transactions entered into by anyone who uses the account You've established with GetFugu, whether or not the transactions were made on Your behalf.

1. Definitions. The capitalized terms herein shall have the meanings set forth below:

1. a. “ARL” means the JPG, PDF or other type of file format provided by GetFugu to Client that when viewed by the camera on a cell phone camera or PDA utilizing the Software will connect the Customer to the Client Site.
2. b. “Client Content” means any designs, artwork, logos, keywords and other data to be included in an ARL and/or VRL in accordance with the description set forth on the applicable Client Term Sheet incorporated herein by this reference.
3. c. “Client Site” means each website, and webpage therein, that Client desires a Customer to be directed to by an ARL and/or VRL.
4. d. “Client Term Sheet” means the completed form containing all business terms necessary to secure and use ARLs and/or VRLs (as applicable) via the GetFugu service and includes, among other details, Your complete contact information, a description of the Client Content, applicable GetFugu obligations and pricing.
5. e. “Confidential Information” has the meaning set forth in Paragraph 9.
6. f. “Customer” means any third party that uses a camera on a cell phone or PDA to read the ARL and/or access the VRL for purposes of being directed to the Client Site.
7. g. “Laws” means, collectively, laws, statutes, ordinances, regulations and other types of local, state, national and foreign government authority (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, pornography, false advertising, privacy and data protection, and publicity).
8. h. “Software” means GetFugu’s proprietary software product(s) that when installed on a cell phone or PDA with a camera is designed to read an ARL or recognize a spoken VRL and connect the Customer to the Client Site.
9. i. “VRL” means the keyword search term or phrase provided by Client and then programmed into the GetFugu database that will enable Customers to speak the keyword search term or phrase into their cell phone or PDA utilizing the Software and then connect the Customer to the Client Site.

2. ARL and/or VRL Purchases. Subject to the terms and conditions of this Agreement as then in effect and as revised from time to time, GetFugu agrees to sell to Client, and Client agrees to purchase from GetFugu one or more ARLs and/or VRLs.

3. GetFugu Responsibilities. GetFugu shall be responsible for making its Software available to Customers by separate license agreement, however, GetFugu does not guarantee how many or if any individuals will license the Software from GetFugu nor does it guarantee that any Customer will use the Software to read an ARL and/or VRL to access a Client Site. GetFugu’s particular responsibilities to Client are set forth on the applicable Client Term Sheet.

4. Client Obligations and Responsibilities. Client shall be responsible for providing GetFugu with Client Content. GetFugu shall have no obligations to create any ARL and/or VRL under this Agreement until such time as it has received all Client Content necessary for the creation of the ARL and/or VRL and all payments then due.

a. Client further agrees that it is solely responsible for:

i. the providing, updating, uploading and maintenance and operation of the Client Site including, except as provided herein, any and all files, pages, data, works, information and/or materials on, within, displayed, linked or transmitted to, from or through the Client Site, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, meta tags, domain names, software and text,
ii. obtaining all domain names and rights necessary to reserve and use the URLs for the Client Site,
iii. publishing and otherwise making the ARL and/or VRL visible an/or otherwise known to the public so that a Customer is capable of using the ARL an/or VRL as a means to access the Client Site, and
iv. providing all data and content posted on each Client Site.
v. Notwithstanding anything in this Agreement to the contrary, Client’s Site and Client Content shall not contain any of the following types of content: (A) pornographic, obscene or excessively profane content; (B) content intended to advocate or advance computer hacking or cracking; (C) gambling; (D) drug paraphernalia; (E) hate, violence or racial or ethnic intolerance; or (F) anything otherwise illegal.

b. You represent and warrant to GetFugu that:

1. i. the Client Content does not and shall not contain any content, materials, data, work, trade or service mark, trade name, link, advertising or services that actually or potentially violate any applicable law or regulation;
   ii. infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and
   iii. that Client owns the Client Site content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the content on and within Client’s.

5. Client Information. Client hereby grants to GetFugu a royalty-free, perpetual right and license to use all Client Content that is necessary for GetFugu to create the ARLs and/or VRLs or for use in connection with GetFugu’s Software. Upon termination of this license GetFugu has no obligation to stop use of Client Content by Customers or retrieve the Client Content from Customers. Client, and not GetFugu, shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of the Client Content and obtaining all rights necessary for GetFugu to use all Client Content. Client represents that it has the requisite rights, title and interest in the Client Content provided to GetFugu to effect its grant of rights and licenses to GetFugu herein. GetFugu reserves the right to withhold, remove and/or discard Client Content from an ARL and/or VRL to the extent it reasonably believes the inclusion thereof would be a breach of this Agreement or unlawful or in violation of a third party’s rights.

6. Consideration. As consideration for the Software and services provided by GetFugu to Client, Client agrees to the compensation set forth in Exhibit “C”. You agree that among the remedies GetFugu may pursue in order to effect payment, shall include, without limitation and without incurring any liability, immediate cancellation without notice to You of any services provided hereunder, including the use or provision of any ARLs and/or VRLs and the cessation of the direction of any Customer(s) to any Client Site(s). GetFugu reserves the right to charge a reasonable administrative fee for administrative tasks outside the scope of its regular obligations hereunder. These include, but are not limited to, Client service issues that cannot be handled over email but require personal service, fees incurred by third parties. Client agrees to promptly pay or reimburse GetFugu for all costs and expenses, including all reasonable attorneys’ fees, related to any breach of Client’s obligations under this Agreement and/or any action or claims bought or asserted by Client against GetFugu in which GetFugu is the prevailing party. All rights of GetFugu under this Paragraph 6 shall be in addition to, and not a limitation of, GetFugu’s rights under Paragraph 16 (Term; Termination).

7. Intellectual Property. This Agreement does not transfer, assign or give to Client any title or any ownership right or interest in any Software or other intellectual property rights of GetFugu. Client acknowledges and agrees that the Software and the technology underlying the ARLs and/or VRLs are owned by GetFugu and its licensors, and that they contain, embody and are based on patented or patentable inventions, trade secrets, copyrights and other intellectual property rights owned by GetFugu and its licensors. Client’s rights with respect to the ARLs and/or VRLs are limited to the terms and conditions in this Agreement. Client acknowledges that no title or interest in such intellectual property is being transferred to Client and Client agrees to make no claim of interest in any such intellectual property. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license is granted to Client or conferred upon Client by this Agreement or otherwise. Subject to the rights and licenses granted to GetFugu in Paragraph 5, Client shall retain ownership of all Client Content.

1. 8. No Reverse Engineering; Other Restrictions. Client shall not, directly or indirectly:
   a. sell, rent, lease, redistribute, sublicense or in any way transfer any ARL and/or VRL;
2. b. modify, translate, reverse engineer (except to the limited extent permitted by law), decompile, disassemble, or create derivative works based on, any ARL and/or VRL; or
   
3. c. use an ARL and/or VRL for the benefit of any third parties or in any way other than what is expressly permitted in this Agreement.

9. Confidentiality. “Confidential Information” means: (i) any non-public technical or business information of a Party, including without limitation any information relating to a Party’s techniques, algorithms, software, know-how, current and future products and services, research, engineering designs, financial information, procurement requirements, manufacturing, Client lists, business forecasts, marketing plans and information; (ii) any other information of a Party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that is disclosed orally and is identified as “Confidential” at the time of disclosure; and (iii) the specific terms and conditions of this Agreement. Confidential Information shall not include information which: (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving Party; (b) the receiving Party can demonstrate by written evidence was rightfully in the receiving Party’s possession at the time of disclosure, without an obligation of confidentiality; (c) is independently developed by the receiving Party without use of or access to the disclosing Party’s Confidential Information or otherwise in breach of this Agreement; or (d) the receiving Party rightfully obtains from a third party not under a duty of confidentiality and without restriction on use or disclosure. Each Party will maintain in confidence all Confidential Information of the other Party and will not use such Confidential Information except as expressly permitted herein. Each Party will take all reasonable measures to maintain the confidentiality of the other Party’s Confidential Information, but in no event less than the measures it uses to protect its own Confidential Information, or if such measures are less than required by this Agreement, then that Party will ensure that it takes at least the measures required by this Agreement. Each Party will limit the disclosure of such Confidential Information to those of its employees with a bona fide need to access such Confidential Information in order to exercise its rights and obligations under this Agreement; provided that all such employees are bound by a written non-disclosure agreement that contains restrictions at least as protective as those set forth herein. Each Party understands and agrees that the other Party will suffer irreparable harm in the event that the receiving Party of Confidential Information breaches any of its obligations under this Paragraph 9 and that monetary damages will be inadequate to compensate the non-breaching Party for such breach. In the event of a breach or threatened breach of any of the provisions of this Paragraph 9, the non-breaching Party, in addition to and not in limitation of any other rights, remedies or damages available to it at law or in equity, shall be entitled to a temporary restraining order, preliminary injunction and/or permanent injunction in order to prevent or to restrain any such breach by the other Party. In the event that the Client is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, it is agreed that the Client will provide GetFugu with prompt notice of such request(s), so that GetFugu may seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained and the Client is legally compelled to disclose the Confidential Information, the Client or its representatives shall furnish only that portion of the Confidential Information which it is advised by its legal counsel is legally required.

10. Disclaimer. THE USE OF ARLS AND/OR VRLS TO ACCESS ANY CLIENT SITE MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS NOT IN GETFUGU’S CONTROL AND INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GETFUGU IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. GETFUGU DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS BY THE PARTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, OR SYSTEM INTEGRATION. CLIENT ACKNOWLEDGES AND AGREES THAT THE ARLS AND/OR VRLS ARE DESIGNED TO BE TOOLS TO ASSIST CLIENT IN CLIENT’S BUSINESS; GETFUGU MAKES NO REPRESENTATION OR WARRANTY THAT THE ARLS AND/OR VRLS WILL OPERATE ERROR-FREE, FREE OF ANY SECURITY DEFECTS OR IN AN UNINTERRUPTED MANNER. ANY WARRANTIES MADE BY GETFUGU MAY BE VOIDED BY ABUSE OR MISUSE OF THE ARL AND/OR VRL BY CLIENT.

11. Limitation of Liability. IN NO EVENT WILL GETFUGU’S AGGREGATE LIABILITY (INCLUDING, BUT NOT LIMITED TO, LIABILITY FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS) ARISING FROM OR RELATED TO THIS AGREEMENT OR THE USE OF AN ARL ANDD/OR VRL, EXCEED THE AMOUNT OF FEES PAID TO GETFUGU UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE DATE THAT GAVE RISE TO SUCH LIABILITY.

12. Exclusion of Other Damages. UNDER NO CIRCUMSTANCES SHALL GETFUGU OR ANY OF ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY OF THE FOLLOWING: (I) LOSS OR DAMAGE TO ANY SYSTEMS, RECORDS OR DATA, OR LIABILITIES RELATED TO A VIOLATION OF AN INDIVIDUAL’S PRIVACY RIGHTS; OR (II) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, RELIANCE OR COVER DAMAGES (INCLUDING LOST PROFITS AND LOST SAVINGS), IN EACH CASE EVEN IF GETFUGU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT IS SOLELY RESPONSIBLE AND LIABLE FOR VERIFYING THE SECURITY, ACCURACY AND LEGALITY OF THE CLIENT CONTENT AND THE CLIENT SITE.

13. Availability of Services. You agree that from time to time services provided by or through GetFugu may be inaccessible or inoperable for any reason, including, without limitation: equipment malfunctions; periodic maintenance procedures or repairs that GetFugu may undertake from time to time; or causes beyond the control of GetFugu or that are not reasonably foreseeable by GetFugu, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. You agree that GetFugu has no control of availability of the services on a continuous or uninterrupted basis and is making no representations herein to the contrary.

14. Client Indemnification. Client shall, at Client’s expense, defend GetFugu against all claims, actions, suits and proceedings by third parties against GetFugu arising from or related to the use, misappropriation or infringement of the Client Content or Client’s Site. Client shall pay all costs, losses, damages and reasonable attorneys’ fees incurred, and all associated settlements in connection with any such claims. In connection with the indemnification obligations under this Paragraph 14, GetFugu will provide: (i) prompt written notice of claims for which it is seeking indemnification; and (ii) any reasonably necessary assistance, information and authority for Client to defend the claim and perform Client’s obligations. Client agrees not to settle any claim, action, suit or proceeding for which Client is indemnifying GetFugu in a manner that would impose any obligations on GetFugu without first obtaining GetFugu’s consent thereto (which consent shall not be unreasonably withheld or delayed).

15. Storage and Security. At all times, Client shall bear full risk of loss and damage to the Client Site and all of the Client Site content. Client is entirely responsible for maintaining the confidentiality of Client’s account information (including password(s)). Client agrees Client is solely responsible for all acts, omissions and use under and charges incurred with Client’s account or password or in connection with the creation of any ARLs and/or VRLs. Client shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Client’s Client Site content; and (ii) maintain independent archival and backup copies of the content of the Client Site. GetFugu shall have no liability to Client or any other person for loss, damage or destruction of any of Client Content.

16. Term; Termination. The term of this Agreement shall commence on the Effective Date and shall remain in effect for one (1) year. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days following receipt of notice specifying the breach. Upon the expiration or termination of this Agreement for any reason, Client shall promptly pay all amounts accrued or otherwise owing to GetFugu for the terminated or expired portion of this Agreement, and each Party shall return, or certify the destruction of, the Confidential Information of the other Party. GetFugu must receive notification of Your intent to terminate no earlier than 10 days prior to Your billing date but no later than three days prior to Your billing date.

17. Representations and Warranties. Client hereby represents and warrants that the undersigned has the right, power, legal capacity and appropriate authority to enter into this Agreement and Client further represents and warrants that Client owns and has not transferred to any other person or entity any of the rights, claims or interests that are the subject of this Agreement and that additionally execution of this Agreement does not constitute infringement upon or cause any conflict with the legal rights of any third party or a third party's intellectual property.

18. Compliance with Laws. GetFugu expressly reserves the right to deny, cancel or transfer any ARL and/or VRL that it deems necessary, in its discretion, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of GetFugu, as well as its affiliates, subsidiaries, officers, directors and employees. GetFugu also reserves the right to freeze an ARL and/or VRL during resolution of a dispute. The ARLs and/or VRLs are made available to Client solely for lawful purposes and use. Client shall be solely responsible for, and agrees to comply with, all applicable Laws. The ARL and/or VRLs are provided subject to GetFugu’s standard commercial agreement and were developed at private expense without government funds, and are commercial products.

19. Modifications. You agree that GetFugu may modify this Agreement from time to time. You agree to be bound by any changes GetFugu may reasonably make to this Agreement when such changes are made.

20. Governing Law; Severability, Venue and Jurisdiction, Waiver of Trial By Jury. This Agreement shall be governed in all respects by the laws of the State of California, USA, without regard to choice-of-law rules or principles. If any provision of this Agreement is held to be illegal or unenforceable for any reason, then such provision shall be deemed to be restated so as to be enforceable to the maximum extent permissible under Law, and the remainder of this Agreement shall remain in full force and effect. Any and all disputes arising hereunder shall be resolved through binding arbitration at JAMS in Los Angeles, California applying the UNCITRAL Arbitration Rules. Each Party consents to the exclusive personal jurisdiction of and waives any objections to the venue of the State of California and Federal Courts located in Los Angeles County, California and judgment on the award of the arbitrator may be obtained in any court having jurisdiction. Client expressly agrees that this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods.

21. Notices. All notices (except for notices concerning breach of this Agreement) from GetFugu to You may be posted on the Site. Notices concerning breach will be sent either to the email or postal address You have on file with GetFugu. In either case, delivery shall be deemed to have been made five (5) days after the date sent. Notices from You to GetFugu shall be made either by email, sent to the address provided on the Site, or first class mail to GetFugu’s address at:

GetFugu USA Inc.
Attn: Chief Executive Officer
8560 W. Sunset Blvd.
Suite 700
West Hollywood, CA 90069

22. Assignment. Client may not assign or otherwise transfer this Agreement without GetFugu’s prior written consent; GetFugu agrees to use its reasonable efforts to notify Client promptly in writing of any assignment by GetFugu of this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns.

23. Force Majeure. Neither Party shall be liable for any delay or failure due to a force majeure event and other causes beyond its reasonable control; provided that Client’s payment obligations shall not be subject to this Paragraph 23. This provision shall not apply to any of Client’s payment obligations.

24. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

25. General. This Agreement is the Parties’ complete agreement regarding its subject matter and the policies and agreements it refers to, superseding any prior oral or written communications. Amendments or changes to this Agreement must be in mutually executed writings to be effective. Unless otherwise expressly set forth in an exhibit that is executed by the Parties, the terms herein shall control in the event of any conflict between them and any terms set forth in an exhibit. Paragraphs 5-12, 14-18 and 20-25 shall survive the termination or expiration of this Agreement. You agree that the terms of this Agreement are severable. If any part of this Agreement is determined to be unenforceable or invalid, that part of the Agreement will be interpreted in accordance with applicable law as closely as possible, in line with the original intention of both parties to the Agreement. The remaining terms and conditions of the Agreement will remain in full force and effect. The Parties are independent contractors for all purposes under this Agreement. The failure of GetFugu to enforce any of the provisions within this Agreement or its incorporated agreements or policies against You or others shall not be constructed to be a waiver of the right of GetFugu thereafter to enforce such provisions.