Terms of Agreement

This Agency Agreement is by and between Client and Sterling Communications, Inc., a California corporation with its office located at 750 University Avenue, Suite 100, Los Gatos, CA 95032 (“Agency”). In consideration of the mutual covenants and promises set forth herein, the parties hereby agree as follows:

Independent Parties

This Agreement does not create, and shall not be construed as creating, any relationship of partnership or employment between the two parties. Client and Agency shall remain independent parties.

Non-disclosure

During the term of this Agreement, Agency and its employees agree not to disclose to third parties “Confidential Information.” “Confidential Information” shall mean any proprietary or confidential information of Client disclosed to Agency regarding Client’s business and/or product lines that is marked “confidential,” “proprietary” or similar legend or which from the circumstances surrounding disclosure should be reasonably regarded to be confidential information of Client. The non-disclosure obligations set forth in this Section shall not apply to information that is generally available to the public or was already in Agency’s possession at the time of receipt of the information from Client or is required to be disclosed by law.

Jurisdiction and Venue

This Agreement shall be deemed to have been entered into and shall be interpreted and governed in all respects by the laws of the State of California. The parties agree that any claim arising out of or relating to this Agreement shall be brought in a federal or state court located in Santa Clara, California and the parties hereby submit to the exclusive jurisdiction of such courts.

Term and Payment

This Agreement commences on the Effective Date and shall continue in effect unless both parties agree in writing to amend the terms of this Master Agreement. Upon termination of this Agreement, the provisions that are intended to survive shall so survive.

Payment terms are outlined in the client approved proposal and/or scope of work. Monthly invoices are due net 30 unless otherwise noted in the approved proposal and/or scope of work. Balances for services rendered which are outstanding more than 10 days shall accrue re-billing fees at a rate of the lesser of 1% per month or the maximum amount allowed by law.

Whenever possible, Agency will have out-of-pocket expenses, including but not limited to press release wiring fees, video/photography expenses, licensing fees and web hosting fees, billed directly to Client. Client’s approval shall be obtained for any out-of-pocket expenses in excess of $500 (US). For any approved out-of-pocket expenses that Client deems it more convenient for Agency to pay directly, Agency shall be reimbursed costs incurred plus fifteen percent (15%).

Recruitment

During the term of this Agreement, both parties agree not to actively solicit the services of the other party’s employees with whom there is contact by virtue of this Agreement. If, during the term of this Agreement, either party’s employee expresses a desire to work for the other company, this will not be precluded from happening, provided that the other party is paid an amount equal to fifty percent (50%) of the employee’s annualized compensation level at the time of termination. This clause will remain in effect for six months after the termination of the working relationship between the two parties.

Ownership of Account Materials and Work Product

All account materials provided by Client or produced by Agency at Client’s direction are the property of Client. Agency agrees to comply with reasonable requests for the delivery of such materials within three (3) business days of receiving said request, provided that Agency has been paid in full for services provided. Once publicly released, client agrees that Agency may use visual media.

Third-Party Usage

After Agency has issued material to the media or another third party, its use is no longer under Agency’s control. Therefore, Agency cannot assure the use of said material by any publication, nor, if published, that it will be accurate. Agency will use commercially reasonable efforts to ensure that such material is used accurately.

Limitation of Liability

The Client alone shall be responsible for: (a) the rights, accuracy and adequacy of information and data furnished for the project; and (b) any use of the deliverables by Client. In no event shall Agency be liable for any special, incidental, indirect, consequential, exemplary or punitive damages; any damages based on injury to person or property; or any lost sales, profits or data.

Authenticity

It will be Client’s responsibility to review all materials prepared by Agency under this Agreement and to confirm that all representations, direct or implied, are supportable by objective data possessed by Client, as well as depictions of Client’s products and services and/or competitive products or services described or depicted.

Indemnification

Unless Agency has been grossly negligent or exhibited willful misconduct in its duties, Client shall indemnify and hold Agency, its directors, officers, employees, agents and representatives harmless from and against any and all losses, damages, liabilities, claims, demands, suits and expenses (including reasonable attorney’s fees) that Agency may incur or be liable for as a result of any claim, suit or proceeding made or brought against Agency, based upon or arising out of: any alleged or actual defects in Client’s products or services; allegations that the manufacture, sale, distribution or use of any of Client’s products or services violates or infringes upon the patent, copyright, trademark or other rights of any third party; or allegations that the promotion of any of Client’s products or services induces, promotes or encourages the violation or infringement upon the copyright, trademark or other rights of any third party.

Miscellaneous

If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement is the sole and entire agreement between the parties relating to the subject matter hereof and supersedes all prior understandings, agreements, and documentation relating to the subject matter hereof. Only a written instrument executed by the authorized representatives of both parties may amend this Agreement.