Ssa Sow Aras 091123

SUBCONTRACT SERVICES AGREEMENT AGREEMENT NO.  SSA-ARAS-091123     This Agreement is entered into by and between Metafore, LLC, a California Limited Liability Company with its principal place of business located at 33161 Camino Capistrano, Suite D, San Juan Capistrano, CA 92675 (hereinafter referred to as "Metafore"), and  ARAS Corporation, with its principal place of business located at 300 Brickstone Square, Ste. 904, Andover, MA 01810-1492 ("Contractor"). This Agreement will be effective as of the last date that the Agreement has been signed by both parties (the “Effective Date”). WITNESSETH: WHEREAS, Contractor is engaged in the business of providing professional, technical or administrative services; WHEREAS, under the terms and conditions set forth herein, Metafore desires to enter into an agreement with Contractor as an independent contractor concerning the provision of certain professional, technical, or administrative services to Metafore; NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth, the parties agree as follows: 1.

SCOPE AND DEFINITIONS - This Agreement shall apply to the provision of professional, technical or administrative services (hereinafter referred to as the “Services”), as requested from time to time by Metafore and as described in one or more Statements of Work (hereinafter referred to as a “Statement of Work” in the singular or “Statements of Work” in the plural), substantially in the form of Exhibit A appended hereto, each of which are hereby incorporated by reference into this Agreement. Each Statement of Work will constitute a separate agreement on the terms set forth in such Statement of Work and this Agreement and will specify the necessary information to clarify the Services to be provided. Any tangible or intangible items to be delivered to Metafore or Metafore’s customer as part of the Services pursuant to a Statement of Work shall be referred to herein as “Deliverables” (the “Deliverables”).

2.

CONDITIONS OF PERFORMANCE - Contractor agrees to provide the Services to Metafore pursuant to the terms and conditions of this Agreement. The Services shall include without limitation the Services described in the applicable Statement of Work, any written or verbal requests submitted to Contractor by Metafore and in any plans, specifications or general conditions referred to in such requests. A. Order of Precedence - In the event of conflict between this Agreement and the terms and conditions of a Statement of Work, the terms and conditions of the Statement of Work shall govern. B. Timetable - Contractor shall diligently perform the Services hereunder and shall complete the Services within the time limit specified by Metafore.

3.

CHANGE ORDERS A. All change orders and acceptance or rejection of such change orders, shall be in writing and made pursuant to the change order procedure set forth below. B. Upon Metafore’s submission of a change order, Contractor will immediately advise Metafore of the resultant impact on cost and the delivery schedule and will provide such information as will permit Metafore to determine the reasonableness of the requested change order. Metafore and Contractor will negotiate, in good faith, reasonable cost and delivery terms. Contractor shall proceed with the change immediately upon notification by Metafore, under the price and delivery terms agreed upon. C. Contractor may request a change order, provided cost and delivery impact are properly detailed with such information as will permit Metafore to determine the reasonableness thereof. Metafore may, at its sole option, accept or reject any change order requested by Contractor. If Metafore accepts the change order,

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Contractor shall proceed with the change immediately upon the price and delivery terms agreed upon. If Metafore rejects Contractor’s change order, Contractor will continue working on the Services as defined prior to the requested change order. 4.

ACCEPTANCE - Metafore will accept any Services provided by Contractor only after acceptance of such Services by Metafore’s customer. Such acceptance by Metafore and Metafore’s customer shall constitute “Acceptance” under this Agreement.

5.

PAYMENT A. In consideration of the Services rendered by Contractor to Metafore under this Agreement, Metafore will pay to Contractor a fee based on the number of hours worked by Contractor's personnel in performance of the Services at the rate stipulated in the applicable Statement of Work or as otherwise mutually agreed upon by the parties in writing. B. Contractor shall submit monthly invoices to Metafore hereunder. Payment shall be made by Metafore within forty-five (45) days after receipt of a valid and accurate invoice from Contractor.

6.

APPLICABLE TAXES – The fees paid to Contractor by Metafore pursuant to this Agreement will exclude amounts Metafore is required by law to deduct or withhold. If Metafore is required to make such deduction or withholding, Metafore will effect payment thereof to the applicable tax authorities. If Contractor wishes to secure benefits of an income tax treaty between the U.S. and Contractor’s country of residency in order to receive payments from Metafore at a reduced withholding tax rate, Contractor must execute U.S. Form W8BEN (or substitute thereof) and return it to Metafore. Prior to the expiration of the originally executed Form W-8BEN, Contractor will need to execute a new form if Contractor wants to continue to receive the benefits of the reduced withholding rate under the applicable income tax treaty.

7.

QUALITY OF SERVICES - All Services performed hereunder shall be subject to inspection by, and the approval of, a manager or other person designated by Metafore and shall be in strict compliance with the requirements set forth in any instructions submitted to Contractor. Metafore shall have the right to inform Contractor and Contractor's personnel performing Services for Metafore as to the duties, pertinent safety regulations and all other reasonable requirements. Contractor agrees to use only experienced, trained and qualified personnel in the performance of the Services. Contractor shall have the right to determine which of its personnel shall be assigned to perform services for Metafore under this Agreement subject to Metafore's acceptance of such personnel. The Contractor agrees to deliver Product that meets industry standards for software development, and shall be delivered to Metafore in a manner that is fit for its intended purpose, and meets specified design requirements, and operates without defects when operated as intended, and in its intended use environment. The Contractor agrees to correct any and all defects that directly result from its development, configuration or customization of the Product at no additional expense to Metafore.

8.

TERM AND TERMINATION - This Agreement shall become effective on the date first written above and continue for a period of one (1) year unless terminated earlier by either party in accordance with the provisions hereof. This Agreement may be renewed for individual, successive one (1) year terms upon the mutual written agreement of the parties. A. In the event Metafore’s customer terminates the agreement between Metafore and that customer, Metafore shall have the right to immediately terminate any Statement of Work under this Agreement affected by such customer’s termination. Upon such termination by Metafore, Metafore will make any payments then owed Contractor by Metafore with respect to such Statement of Work, unless Metafore’s customer’s termination is due to acts or omissions of Contractor such as would constitute a breach of this Agreement. B. Either party may terminate this Agreement prior to expiration of any individual term or an Statement of Work if the other party fails to comply with the terms of this Agreement or any Statement of Work hereto, and fails to cure its breach within ten (10) days after the non-breaching party has given the other party written notice of such breach. If a breach by Contractor is not cured as provided herein, Contractor shall

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deliver to Metafore all work completed under the applicable Statement of Work to that time, under the same rights set forth in Section 11. The terms of this subsection will not be construed as limiting or restricting any rights which Metafore may have against Contractor for breach of this Agreement and Metafore expressly reserves all such rights. C. Either party may terminate this Agreement for convenience upon thirty (30) days prior written notice to the other party. Any such termination shall not relieve either party of their respective obligations under any Statement of Work in effect at the date of termination of the Agreement (which obligations shall remain in effect for such Statement of Work, except as set forth above or otherwise mutually agreed in writing by the parties. D. The parties' obligations under Sections 10 through 18, inclusive, and Sections 24 and 28 shall survive the termination or expiration of this Agreement. 9.

INDEPENDENT CONTRACTOR - All work performed by Contractor and its personnel in connection with the Services described in this Agreement shall be performed by Contractor as an independent contractor and not as the agent or partner of, or joint venturer with, Metafore for any purpose. All persons furnished by Contractor shall be considered solely Contractor's employees or agents and contractor shall be responsible for compliance with all laws, rules and regulations including, but not limited to, employment or labor laws, hours of labor, working conditions, worker's compensation, payment of wages and payment of taxes, such as employment, social security and other payroll taxes, including applicable contributions from such persons when required by law. Neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. Nothing in this Agreement shall be construed so as to preclude either party from developing, acquiring, or marketing projects which may perform the same or similar functions as the Services provided by Contractor.

10. CONFIDENTIALITY - In order for Contractor to effectively provide Services to Metafore, it may be necessary for Metafore to disclose to Contractor confidential and proprietary information of Metafore and/or its customers. Contractor shall and shall instruct its personnel to regard all information including but not limited to all documents, edits, designs, tools, equipment, inventions, drawings, specifications, plans, processes, methods, systems, lists, other material and any copies thereof (the "Confidential Information") disclosed or gained as a result of the performance of Services hereunder as the confidential and proprietary information of Metafore and/or its customers. Contractor shall not and shall instruct its personnel note to use, export or disclose, directly or indirectly, such Confidential Information to any third party without first obtaining Metafore's express written consent. Except as required for the efficient performance of the Services, Contractor shall not and Contractor shall instruct its personnel not to make copies or permit copies to be made of the Confidential Information without the prior written consent of Metafore. Contractor shall and Contractor shall instruct its personnel to take all steps necessary to hold the Confidential Information of Metafore and/or its customers in strict confidence. Notwithstanding anything in this Agreement to the contrary, if Metafore reasonably believes a violation of this Section has taken place or is about to take place, it may take all necessary steps to protect the confidentiality of its Confidential Information, including but not limited to obtaining injunctions and restraining orders against Contractor and any of Contractor's authorized subcontractors, personnel or agents, or immediately terminating this Agreement upon notice. 11. OWNERSHIP A. Ownership of Deliverables – Unless otherwise agreed in a Statement of Work, Metafore shall be the sole and exclusive owner of all Deliverables developed by Contractor pursuant to this Agreement. In accordance with the provisions of the Copyright Act of 1976, as amended, any and all work product, copyrights, all inventions and improvements developed or conceived hereunder and all rights of every kind that result or may result from Contractor's performance under this Agreement are hereby assigned, transferred and conveyed entirely and exclusively to Metafore. Metafore shall have the exclusive right to patent any inventions developed or conceived hereunder and to obtain copyright and renewals of copyright in any such work product and modifications or improvements thereto and to reproduce the copyrighted work or prepare derivative works based thereon in any manner or medium. Contractor shall provide Metafore, at Metafore's sole discretion and expense, all assistance reasonably required to protect any such rights.

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B. Metafore's Data - Any and all data, notes, reports, memoranda or other materials furnished by Metafore for use by Contractor in connection with the Services performed under this Agreement shall remain the sole property of Metafore and will be held in strict confidence in accordance with Section 10 herein.

12. WARRANTY A. Contractor warrants that it will use all reasonable care and skill in providing the Services and that the Services performed hereunder by Contractor will conform to the scope of work contained in Statement of Work, and any changes thereto, made pursuant to Section 3. For the period of time defined in Statement of Work, Contractor will remedy, without charge to Metafore or Metafore’s customer, any and all parts of the Services which Metafore or its customer find to be non-conforming to Statement of Work. Contractor shall replace or begin to correct nonconforming work immediately upon Metafore’s notice of such to Contractor, and shall continue diligently, until the nonconformity is corrected and conforms to the scope of work contained in Statement of Work by providing periodic written progress reports as requested by Metafore. B. THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 13. ACCOUNTING RECORDS - Contractor shall maintain complete and accurate records in connection with the Services required hereunder and shall make such records available to Metafore if requested during reasonable hours at a mutually agreeable time. The records which are to be retained include all contracts, papers, correspondence, copybooks, accounts, invoices, accounting records, and other relevant supporting documentation. Metafore will execute a mutually agreeable nondisclosure agreement prior to reviewing any of Contractor's books or records. 14. REPORTS - Contractor shall render such progress reports as may be reasonably requested by Metafore, pertaining to the Services performed hereunder, showing the time expended both periodically and cumulatively. Such reports shall be in a form which will enable Metafore to evaluate the progress made and the schedules to be met, and to keep a current account of time and monies expended pursuant to this Agreement. 15. SECURITY PRECAUTIONS - Contractor agrees to take all reasonable precautions to assure that the work performed hereunder shall be protected against theft, destruction or unauthorized disclosure. Contractor further agrees to comply with all applicable security classification laws and regulations of the United States government insofar as said laws, rules and regulations pertain to this Agreement. 16. INFRINGEMENT INDEMNITY - Contractor, at its own expense, shall hold harmless and defend Metafore and Metafore's customers against any claim or legal proceeding brought against Metafore or its customers that is based upon a claim, whether rightful or otherwise, that any item, or part thereof, delivered to Metafore under this Agreement, for Metafore's use or resale thereof, constitutes an infringement of any patent, trade secret or copyright. Contractor shall reimburse Metafore and Metafore's customers for all damages and costs awarded against Metafore and Metafore's customers and all reasonable expenses Metafore and Metafore's customers may have incurred in connection with such claim or proceeding. In the event Metafore and Metafore's customers use of such item or part thereof is held to constitute an infringement and Metafore or its customers use thereof is enjoined, Contractor, at its own expense and option shall either purchase for Metafore all necessary rights to continued use of the enjoined item, or in a manner acceptable to Metafore make replacement or modifications to the item as may be needed to avoid infringement.

17. INDEMNIFICATION - Contractor agrees to indemnify and hold Metafore harmless from any liabilities, claims or demands (including the costs, expenses and reasonable attorney's fees on account thereof) that may be made: (1) by anyone for injuries including death to persons or damage to property including theft, arising from Contractor's acts or omissions or those of persons furnished by Contractor in connection with this Agreement; and (2) by any authorized person or subcontractor provided by Contractor and working in connection with this Agreement under worker's compensation or similar acts. For any such liability, claim or demand, Metafore retains the right to assume its own defense and the right to settle. Metafore agrees to notify Contractor promptly

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of any written claims or demands against Metafore for which Contractor is or may be responsible. The provisions of this Section shall survive the termination or expiration of this Agreement.

18. ARBITRATION - In the event a dispute or controversy arises between the parties hereto concerning this Agreement or its terms, the parties shall engage in mediation before a mutually agreeable neutral mediator within 30 days. If mediation does not resolve the dispute or controversy, it shall be submitted to binding arbitration before the American Arbitration Association, and the prevailing party shall be entitled to recover its therein reasonably incurred attorney’s and costs from the non-prevailing party as part of the arbitrator’s award, in entering it as a court order/judgment, and in enforcing and collecting upon the judgment. Failure of a party herein in good faith to engage in mediation means that such party forfeits its right to recover attorney’s fees or costs from the non-prevailing party. 19. INSURANCE A. With respect to services furnished and work performed by Contractor as described in this Agreement, Contractor agrees to maintain in full force and effect for the term hereof all insurance or bonds required by law or this Agreement, including, but not limited to: (1) worker's compensation and related insurance as prescribed by the laws of the state in which the work is performed; (2) employer's liability insurance with limits of at least $1,000,000 for each occurrence, (3) comprehensive automobile liability insurance, each with limits of at least $1,000,000 for bodily injury, including death, to any one person, and $1,000,000 on account of any one occurrence and $1,000,000 for each occurrence of property damage, and (4) professional liability insurance covering Contractor's errors and omissions with a limit of liability of $1,000,000 each loss/aggregate. Contractor shall, prior to the start of work, furnish to Metafore certificates or adequate proof of the foregoing insurance. All insurance furnished by Contractor hereunder will provide thirty (30) days written notice of cancellation or non-renewal to Metafore. B. Contractor shall also require Contractor's authorized subcontractors, if any, who may enter upon Metafore's premises with Metafore's prior authorization, to maintain similar insurance and to agree to furnish Metafore, if requested, certificates or adequate proof of such insurance. 20. LIMITATION OF LIABILITY EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER METAFORE NOR CONTRACTOR SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT. 21. EXPORT CONTROL - Contractor and Contractor's personnel shall comply with the United States Export Administration Act and regulations thereunder and any other laws, regulations or Executive Orders enacted on behalf of the United States relating to export. 22. PERSONNEL A. Metafore shall identify its project manager acting as Contractor’s contact for each Statement of Work hereto. B. Contractor shall identify a project manager to be the person responsible for coordination of the various activities and supervision of Contractor’s personnel, and such project manager shall be identified on each Statement of Work hereto. All Contractor personnel shall be adequately trained, licensed and qualified to perform the tasks they are assigned. If these personnel are to be replaced, a suitable alternate must be identified in advance to the Metafore project manager. All Contractor personnel shall meet the licensing, security, union, and site requirements for the locale where the Services are being performed. C. Contractor agrees to provide personnel for the duration of the project as specified and required by Metafore, and in accordance with the Terms and Conditions specified in this Agreement and the applicable Statement of Work.

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23. STATUS REVIEW MEETINGS - Progress meetings will be scheduled between Metafore and Contractor at agreed upon times. Contractor and Metafore will communicate on a regular basis for the purpose of reviewing the effectiveness of the relationship and this Agreement, suggesting changes, and implementing improvements. Meetings will take place as mutually agreed between the parties. 24. RIGHT OF ACCESS - Metafore shall have the right of reasonable access to all of Contractor’s work under this Agreement at times agreed to by the parties during normal working hours. 25. APPLICABLE LAWS - Contractor shall provide the Services hereunder in compliance with all applicable federal, state and local government requirements, including environmental, licensing and permit laws, rules, regulations, orders and ordinances, as may be necessary for the lawful provisions of the Services under the terms of this Agreement. 26. UNCONTROLLABLE CIRCUMSTANCES - If the performance of any part of this Agreement by Metafore or Contractor is prevented or delayed by acts of civil or military authority, flood, fire, epidemic, war or riot, or other acts beyond the reasonable control of either party, the party affected shall be excused from such performance only during the continuance of any such event; provided, however, that if such delay in performance extends for more than 30 days, the other party, at its discretion, upon giving written notice, may terminate this Agreement. 27. SUCCESSORS AND ASSIGNS - All promises, terms and conditions in this Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns. Neither party shall assign or otherwise transfer any of its obligations, rights or remedies, in whole or in part, hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld. 28. GOVERNING LAW - This Agreement shall in all respects be governed by and construed in accordance with the laws of the State of California, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. 29. NOTICE – All notices required by or relating to this Agreement will be in writing and will be sent to Metafore to the attention of Legal Department, 33161 Camino Capistrano, Suite D, San Juan Capistrano, CA 92675; and to Contractor at the address set forth on the first page of this Agreement; or to such other address as either party may specify by written notice to the other. 30. SEVERABILITY - If any provision or provisions of this Agreement shall be held to be illegal, invalid or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. 31. EMPLOYEE SOLICITATION - Metafore and Contractor agree, during the term of this Agreement and for a period of one year after its termination, not to hire or attempt to hire any employees of the other party without the express written consent of the other party. 32. EMPLOYMENT SOLICITATION - Contractor agrees, during the term of this Agreement and for a period of one year after its termination, not to solicit or accept employment from any existing or prospective customer of Metafore known to Contractor, either directly or through another employer, without the express written consent of Metafore. 33. ENTIRE AGREEMENT - This Agreement together with all exhibits, plans, specifications, invoices and general conditions hereto contains the entire understanding of the parties with respect to the subject matter contained herein and supersedes any prior discussions, proposals or agreements on this topic. There are no promises, covenants or understandings other than those expressly set forth herein. This Agreement shall not be deemed or construed to be modified, amended or waived, in whole or in part, except by written agreement of both parties to this Agreement. No failure or delay by either party in exercising any right, power or remedy under this Agreement, except as specifically provided herein, will operate as a waiver of any such right, power or remedy.

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34. COUNTERPARTS – This Agreement may be executed in two or more counterparts, each of which will be considered an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have signed this Agreement by duly authorized representatives effective as of the day and year first above written. CONTRACTOR:

METAFORE:

Signature

Signature

Name

Name

Title

Title

Date

Date

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Exhibit A Statement of Work – SOW-ARAS-091123 This Statement of Work is subject to all of the terms and conditions set out in the Subcontract Services Agreement No. SSA-ARAS-091123 between Metafore and Contractor, dated as of November 23, 2009.

1.

Project

Amscan/Anagram ARAS Innovator PLM Implementation Project

2.

Estimated Start Date

December 7, 2009, or, as required by the Metafore Project Manager  

3.

Estimated Completion Date

March 30, 2009, or, as required by the Metafore Project Manager  

4.

Payment

$165.00/Hr.

5.

Services to be Provided

Senior Solution Architect-ARAS Innovator PLM: Design of data models required to configure and customize the Amscan and Anagram PLM system(s) in compliance with specific customer process and performance requirements for Phase 1 of the PLM project. Delivery of an approved Functional Design Specification document.

6.

Names of Personnel

Russ Moro     

7.

Other Terms & Conditions

Net 45 Days Metafore reserves the right to cancel this Statement of Work without obligation or risk in the event that Amscan or Anagram do not agree to commence the work proposed and scheduled by Metafore.

Statement of Work Agreed to by Contractor: Signature

Print Name

Date

Statement of Work Authorized by Metafore: Signature

Print Name

Date

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