MASTER LICENSE
AGREEMENT
---
ORDER FORM
Agreement Effective Date:
Date of application completion
PART I: THE
PARTIES
TERM:
Month to
Month
(See Terms
and Conditions)
PART
III: FEES
TYPE OF
FEE
AMOUNT
UNITS
DUE
DATE
Initial
Application Set-up fee
See Plan
Details
Schedule
A.
See Plan
Details
See Plan
Details
/ on
approval
Monthly
Licensing of Application including customer and
marketing support
See Plan
Details
Schedule
A.
Monthly
See Plan
Details
Schedule
A.
Monthly,
Beginning on Effective Date
Messaging
Rates
See Plan
Details
Schedule
A.
Per month
– billed in arrears
See Plan
Details
MASTER
LICENSE AGREEMENT
ORDER
FORM
Agreement
Effective Date: Date of application
completion
PART
I: THE PARTIES
“ARK
Loyalty LLC”
“MyContactApp”
“CQS Business
Solutions”
“Client”
Name of
Party:
ARK Loyalty
d.b.a. MyContactApp LLC
See client
sign up information online
Address:
412 N Main
St Ste 100
Buffalo, WY
82834
USA
See client
sign up information online
Main
Phone:
844-338-4943
Main
Fax:
See client
sign up information online
Primary
Contact(s):
Christopher
Collins
Phone:
630-465-0277
Email:
Chris@ARKLoyalty.com
See client
sign up
Information
online
Name &
Title:
Phone:
Mobile:
Email:
Accounting
Contact(s):
Email:
Support@mycontactapp.com
See client
sign up information online
Name &
Title:
Phone:
Email:
Package:
PART
II: LICENSE PACKAGE FEATURES
TYPE OF
LICENSE:
Corresponding with package
selection
PACKAGE
FEATURES:
Number of
Authorized Users: Unlimited
Number of
Client Accounts: SEE PACKAGE
DETAIL
Training: ONLINE VIDEOS / SEE PACKAGE
DETAILS
Schedule
A.
Monthly,
Beginning on Effective Date
ADDITIONAL
TERMS AND CONDITIONS:
These terms
and conditions supersede any terms in the
agreement set-forth in Master License
Agreement
ARK Loyalty
LLC d.b.a. MyContactApp paid packages also
includes user capable support: general support,
campaign set-up, and marketing assistance not to
exceed 1 hour a month. The first month of
service comes with 3 hours of support and the
second month of service comes with 2 hours of
support every month. Thereafter comes with 1
hour of user capable support which is billed on
a case by case situation for any support deemed
as a user capable task. The minimum hourly rate
is $25.00 and you will be informed of the fee
prior to any service being completed. All
packages come with email support and all
available training videos.
ARK Loyalty
LLC d.b.a. MyContactApp, RESERVES THE RIGHT TO
CONTACT YOUR CUSTOMERS NO MORE THAN TWICE
A YEAR AND NEVER AGAIN IF ASKED TO STOP UNLESS
THEY OPT BACK IN.
NexGen
Program Payment Options: Lease, Cash, Check -
Money Order, Credit-Debit Card, (invoice can be
sent after approval if you don’t want to
include card data below.)
Lease
– Click Here for 30 second lease approval,
if more information is needed we will get back
to you.
If Cash
payment is being made then half is due upon
approval and half due upon delivery of your
tablet, speak with your account representative
for arrangements.
If paying
with Check or Money Order, make payable to ARK
Loyalty d.b.a. CQS Business Solutions, see above
for mailing address.
I hereby
acknowledge and authorize ARK Loyalty LLC d.b.a.
MyContactApp and CQS Business Solutions LLC to
charge my credit card according to the terms of
this agreement herein. ___Yes, Charge my
card the NexGen annual payment shown
below.
Amount to
be charged via payment gateway: (Annual
NexGen payment) $ same as monthly
AUTHORIZED
SIGNATURES:
This
document represents the acknowledgement that
Client has read this Order Form, the attached
Terms and Conditions, and all Exhibits,
Statements of Work and/or other documents
incorporated therein, and agree and accept such
terms as of the Effective Date.
MASTER
LICENSE AGREEMENT
ARK
Loyalty LLC d.b.a. MyContactApp and CQS Business
Solutions LLC
Terms and
Conditions
This
Agreement (the “Agreement”) is
entered into by and between ARK Loyalty LLC
d.b.a. MyContactApp ( having offices at 412 N
Main St Ste 100 Buffalo, WY 82834 USA, and
(“Customer”), and shall be effective
as of this date.
1.
SERVICES. LLC will provide the services set
forth in this agreement. LLC will use
commercially reasonable efforts to provide a
secure transmission of customer data to and from
the LLC database located on LLC Internet
computer network. The services and all related
software and intellectual property are
hereinafter referred to as the
“Services.”
2. FEES.
Customer shall pay the fees set forth during the
Term of this Agreement. LLC will invoice
Customer for these fees on a 30-day billing
cycle. Customer agrees to pre-pay for every
month of service. Customer acknowledges
that all text message overages are charged in
arrears at the rate designated in their existing
monthly plan. Customer shall pay all invoices
within ten (10) days of the date of invoice.
There may be an additional one time set-up fee
billed with the first month of service. All
charges and fees hereunder are exclusive of
federal, state and local excise, sales, use and
other taxes now or hereafter levied or imposed
for the provision of Services hereunder. Except
for taxes on LLC's net income, Customer
shall be liable for and pay all such taxes and
other levies, regardless of whether included on
any invoice. LLC is prohibited from changing the
amount, structure, method and/or basis of the
fee at any time during the term of this
Agreement. Customer has the exclusive right to
upgrade or downgrade their service plan at any
time with 15 days’ notice in writing to
LLC.
3.
GUARANTEE. If Customer has been unable to
utilize the services provided by LLC for any
reason that is the fault of LLC, Customer shall
have the right to cancel all services provided
by LLC, and LLC will provide to Customer a full
refund of all monies previously paid to LLC to
Customer for the period that services were not
provided. Should Customer choose to cancel
service and seek a refund, Customer must provide
written notice to LLC within fifteen (15) days
prior to the completion of the three month of
service. Said notice must include a detailed
basis for the cancellation
4. LICENSE;
RESTRICTIONS. a) LLC hereby grants Customer a
non-exclusive, non- transferable license to
access and use the Services at Customer's
place of business. Customer is prohibited from
reselling, loaning or otherwise sharing the
Services or divulging any related confidential
information including, but not limited to
passwords or instructional manuals. Except as
expressly permitted in this Section, Customer
may not use, reproduce, transfer, share,
sublicense or transmit the Services in any form
or by any means without the prior written
consent of LLC. Customer further agrees not to
modify, translate, transform, decompile, reverse
engineer, disassemble, or otherwise determine or
attempt to determine source code from the
Services or related software, or to permit or
authorize a third party to do so. Title to the
Services, and all related software, technical
know-how, and intellectual property rights
therein are and shall remain the exclusive
property ofLLC. Customer shall not take any
action to jeopardize, limit or interfere in any
manner with LLC's ownership of, and rights
with respect to any licensed software and/or
Services. b) COMPLIANCE. Customer acknowledges
and agrees that, as between Customer and LLC,
Customer is responsible for compliance with all
federal, state or other applicable laws
governing the use of the Services, including but
not limited to laws applicable to direct
marketing and privacy. Customer further
acknowledges and agrees that LLC merely provides
a routine conveyance,” as that term is
defined in 15 U.S.C. § 7702 (CAN SPAM Act),
in connection with the transmission of any
electronic mail messages on behalf of Customer
in connection with the Services. Customer also
agrees to comply with LLC's policies and
rules for use of the Services, including its
e-mail transmission services, as made available
to Customer and as amended by LLC from time to
time in its sole discretion.
5.
INTELLECTUAL PROPERTY RIGHTS. It is the intent
of the parties that LLC shall own the Services,
as well as all patents, copyrights, trademarks,
trade secrets and other intellectual property
rights associated with or appurtenant to the
Services. Neither Customer, nor its
subsidiaries, affiliates, agents, or employees
shall have any right to use the Services other
than for the purposes set forth herein. In all
cases, the Services are and shall remain the
sole and exclusive property of LLC. Customer
covenants to take no action nor commit any
omission that would be adverse to LLC's sole
and exclusive ownership of the Services. If
Customer, its subsidiaries, affiliates,
employees or any third parties obtain any rights
of ownership in or use of the Services through
operation of applicable law or otherwise,
Customer agrees to and hereby transfers, grants,
conveys, assigns and relinquishes exclusively to
LLC any and all right, title and interest it has
or may acquire in the Services under patent,
copyright, trade secret, trademark or other law
relating to intellectual property in perpetuity
or for the longest period otherwise permitted by
law.
6.
CONFIDENTIALITY. a) Customer acknowledges that
the Services are the trade secrets of LLC. b)
Each party agrees to use good faith efforts and
at least the same care that it uses to protect
its own confidential information of like
importance, but in no event less than reasonable
care, to prevent unauthorized dissemination or
disclosure of the other party's confidential
information both during and after the Term of
this Agreement (including without limitation,
the Services). In addition, each party shall use
the other party's confidential information
solely as necessary for the performance of this
Agreement. Confidential information will
include, but is not necessarily limited to (i)
non-public financial information concerning
either party; (ii) information concerning either
party's product line (both current and
planned), research, development, customers, and
pricing and marketing plans, unless and until
publicly announced; and (iii) any information
designated as confidential in writing at or
prior to disclosure. c) Except as required by
law, LLC will not disclose to any non-affiliated
third party any non-public individually
identifiable customer data received from
Customer without Customer's prior approval.
LLC shall maintain at all times during the Term
appropriate and reasonable safeguards to protect
such individually identifiable customer data
using measures no less rigorous than those used
to protect LLC's own customers'
individually identifiable data. d) The
restrictions in this Section 5 Confidential
Information shall not apply to information
which: (i) has become publicly known without
breach of this Agreement or any other
confidentiality obligation by the receiving
party; (ii) has been given to the receiving
party by a third party with a legal right to so
disclose; (iii) was known to the receiving party
at the time of disclosure as evidenced by its
written records; (iv) was independently
developed by the receiving party without
reference to the other party's confidential
information; or (v) is necessary to establish
the rights of either party under this Agreement;
or must be disclosed by the receiving party to
comply with any requirement of law or order of a
court or administrative body (provided that the
receiving party will endeavor to notify the
disclosing party of the issuance of such order
and reasonably cooperate, at disclosing
party's expense, in its efforts to convince
the court or administrative body to restrict
disclosure).
7. LIMITED
WARRANTY; LIMITATION OF LIABILITY. a) LLC
PROVIDES THE SERVICES AND SOFTWARE “AS
IS”AND MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS, ORAL, IMPLIED OR
STATUTORYAND SPECIFICALLY DISCLAIMS ANY IMPLIED
WARRANTY, INCLUDING, BUT NOT LIMITED TO, THE
QUALITY, COMPLETENESS, PERFORMANCE,
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE OR ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE. b) LLC SHALL
NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR
INJURY TO ANY PERSON OR PROPERTY WHATSOEVER
RESULTING FROM THE USE OF OR INABILITY TO USE
THE SERVICES OR SOFTWARE OR FOR ANY INCIDENTAL,
CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR
OTHER DAMAGES OR EXPENSES OF ANY KIND OR NATURE
WHATSOEVER ARISING OUT OF OR RELATING TO THE
SERVICE FOR SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. SPECIFICALLY, LLC
SHALL NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR
REVENUE, OR COSTS, INCLUDING, BUT NOT LIMITED
TO, THOSE INCURRED AS A RESULT OF LOSS OF USE OF
THE SERVICES OR SOFTWARE, LOSS OF DATA, BUSINESS
INTERRUPTION. COST OF RECOVERING SOFTWARE OR
DATA, COST OF SUBSTITUTE SOFTWARE OR DATA. OR
OTHER SIMILAR COSTS. IN NO EVENT SHALL LLC'S
TOTAL LIABILITY OF ANY KIND, REGARDLESS OF THE
FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY
BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID TO LLC
UNDER THIS AGREEMENT DURING THE TWELVE (12)
MONTH PERIOD PRIOR TO THE CLAIM.
8.
INDEMNIFICATION. a) Customer assumes sole
responsibility for all use of the Services and
agrees to indemnify, defend and hold ARK Loyalty
d.b.a. MyContactApp and its affiliates,
and its and their respective officers,
directors, employees, agents and representatives
harmless from and against any and all claims,
causes of action, suits, proceedings, demands,
damages, costs, expenses and liabilities of any
kind whatsoever, including (without limitation)
legal expenses and reasonable attorneys'
fees, from third parties (“Claims”),
arising out of or in any way related to (i)
Customer's use of the Services, including
without limitation the use or inability to use
the same, or any errors or omissions in the
same, or (ii) any breach by Customer of this
Agreement. b) If a preliminary or final judgment
shall be obtained against Customer's use of
the Services by reason of a Claim that the
Services infringe or misappropriate the
intellectual property rights of a third party or
if the Services are likely to become the subject
of such a Claim, ARK Loyalty d.b.a. MyContactApp
shall at its option and expense either procure
for Customer the right to continue to use the
Services as provided in this Agreement, or
replace or modify the Services with a version of
Services that is non-infringing, but performing
substantially similar functions. In the event
that neither of the foregoing options is
commercially reasonable in LLC's sole
judgment, LLC shall cease providing the Services
to Customer and refund to Customer any pre-paid
license fees paid by Customer for the remainder
of the Term. THE RIGHTS AND OBLIGATIONS IN THIS
SECTION 7(b) ARE LLC'S SOLE AND EXCLUSIVE
OBLIGATIONS, AND CUSTOMER'S SOLE AND
EXCLUSIVE REMEDIES, WITH RESPECT TO ANY
INTELLECTUAL PROPERTY INFRINGEMENT OR
MISAPPROPRIATION.
9. TERMS
AND TERMINATION a) The term of this agreement
shall commence upon acceptance herein and shall
continue for a period of One (1) year .
Thereafter, this Agreement shall automatically
renew on a month-to-month term unless either
party provides written notice to the other party
that it will not renew, such notice to be given
at least thirty (30) days prior to the
expiration of the then-existing Term. b) Either
party may terminate this Agreement immediately
for any breach of this Agreement by the other
party that is not cured within thirty (30) days
after receipt of written notice of the breach
from the non-breaching party; provided however,
such cure period shall not apply if Customer is
in breach of Section 3 License; Restrictions of
this Agreement, or if either party is in breach
of Section 5 Confidentiality, and further
provided, however, that the cure period for the
breach of an obligation to pay fees when due
shall be ten (10) days. LLC may terminate this
Agreement at any time without cause upon thirty
(30) days written notice to Customer. Page 2
VOID IF ALTERED - Rev: 01/21/09 c) This
Agreement shall be immediately terminated upon
the dissolution or bankruptcy of Customer, the
filing of a bankruptcy petition by or against
Customer or a general arrangement or assignment
by Customer for the benefit of creditors. d)
Following expiration or termination of this
Agreement for any reason, all rights and
licenses granted herein shall terminate and
Customer shall immediately cease use of and
certify to LLC that it has destroyed all copies
of the Services and related software. e)
Termination or expiration of this Agreement for
any reason shall not release any party from any
liabilities or obligations set forth in this
Agreement that by their nature would be intended
to be applicable following any such termination
or expiration. f) LLC reserves the right to
suspend the Services or terminate this Agreement
in the event that a payment due remains unpaid
three (3) business days after Customer has been
notified of such non-payment.
10.
INJUNCTIVE RELIEF. Each party acknowledges that
the Services are unique property, and that the
unauthorized use or disclosure thereof shall
cause ARK Loyalty d.b.a. MyContactApp
irreparable harm that could not be adequately
compensated by monetary damages. Accordingly, in
addition to any other remedies available to it
at law or in equity, LLC will be entitled to
injunctive relief to enforce the terms of this
Agreement, including to prevent any actual or
threatened unauthorized use or disclosure of
confidential information or the
Services.
11.
GOVERNING LAW; DISPUTE RESOLUTION. a) This
Agreement will be construed in accordance with
and governed by the laws of the State of
Wyoming, without regard to principles of
conflicts of law. Any disputes under this
Agreement shall be brought in Jackson County,
Wyoming. In the event that the Dispute
Resolution section is invalidated, the parties
hereto consent to the jurisdiction of any local,
state or federal court in which an action is
commenced and located in accordance with the
terms of this Section and that is located in
Jackson County, Wyoming. The parties further
agree not to disturb such choice of forum, and
if not resident in such state, waive the
personal service of any and all process upon
them, and consent that such service of process
may be made by certified or registered mail,
return receipt requested, addressed to the
parties as set forth herein. b) Any dispute or
claim arising hereunder shall be submitted to
binding arbitration in Jackson County, Wyoming,
and conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration
Association (AAA), and the parties expressly
waive any right they may otherwise have to cause
any such action or proceeding to be brought or
tried elsewhere. The parties hereunder further
agree that: (i) any request for arbitration
shall be made in writing and must be made within
a reasonable time after the claim, dispute or
other matter in question has arisen; provided
however, that in no event shall the demand for
arbitration be made after the date that
institution of legal or equitable proceedings
based on such claim, dispute, or other matter
would be barred by the applicable statutes of
limitations; (ii) the appointed arbitrator must
be a former or retired judge or attorney at law
with at least ten (10) years experience in the
substantive area of this Agreement; (iii) the
award or decision of the arbitrator, which may
include equitable relief, shall be final and
judgment may be entered on such award in
accordance with applicable law in any court
having jurisdiction over the matter. c) In any
action, arbitration, or other proceeding by
which one party either seeks to enforce its
rights under the Agreement, or seeks a
declaration of any rights or obligations under
the Agreement, the prevailing party will be
entitled to reasonable attorney's fees and
reasonable costs and expenses incurred to
resolve such dispute and to enforce any final
judgment. In addition, if Customer or
Customer's account is referred to an
attorney or collection agency for collection,
Customer will pay for all collection fees, costs
and expenses incurred by LLC, including
attorneys' fees and fees of collection
agencies.
12.
GENERAL. a) Press Releases. LLC may issue press
releases and other marketing and promotional
material describing the relationship created by
this Agreement. Customer shall have thirty (30)
days to review such material prior to its
release. LLC may use specific information
previously reviewed for public release by
Customer, without further approval. b) Notices.
All notices and other communications to each
party must be in writing and sent to the party
at the address specified in this Agreement or to
such alternative address as either party may
furnish in writing to the other from time to
time. If to LLC, Attention: Legal Department.
Unless otherwise agreed, notice shall be deemed
given (i) upon receipt when delivered
personally, (ii) upon written verification of
receipt from overnight courier, (iii) upon
verification of receipt of registered or
certified mail, or (iv) upon verification of
receipt via facsimile. c) Force Majure. Neither
party shall be liable or deemed to be in default
for any delays or failure in performance
resulting directly or indirectly from any cause
or circumstances beyond its reasonable control,
including but not limited to acts of God, war or
warlike conditions, terrorism, riot, embargoes,
acts of civil or military authority, fire,
flood, accidents, strikes or labor shortages,
sabotage, Internet failure, transportation
facilities shortages, fuel or materials or for
failures of equipment, telecommunications
facilities or third party software programs. d)
Severability. If any term or condition hereof is
found by a court or administrative agency to be
invalid or unenforceable, the remaining terms
and conditions hereof shall remain in full force
and effect and shall be enforceable to the
maximum extent permitted by law. e) Waiver. The
failure of either party to enforce any provision
of this Agreement shall not constitute or be
construed as a waiver of such provision or of
the right to enforce it at a later time. A
party's remedies set forth herein are not
exclusive and are in addition to any and all
other remedies available at law or in equity,
none of which shall be deemed as waived by
virtue of a party's exercise of any other
remedy. f) Entire Agreement. This Agreement and
related exhibits and attachments represent the
entire agreement and understanding of the
parties with respect to the subject matter
hereof and supersedes any and al prior
agreements and understandings. There are no
representations, warranties, promises, covenants
or undertakings, except as described herein. g)
Service Enhancements. LLC reserves the right to
add or delete programs or services as part of
our continued enhancement of the Services. LLC
will give Customer thirty (30) days notice of
any such changes and any fee increases or
decreases related thereto. h) Amendment. Except
where otherwise provided herein, this Agreement
may not be amended or otherwise modified except
by an Addendum signed by the parties hereto. i)
Assignment. Customer may not sell, mortgage,
assign or otherwise transfer this Agreement or
any of its rights or obligations hereunder to
any other person or entity, without the express
written consent of ARK Loyalty d.b.a.
MyContactApp. Page 3 VOID IF ALTERED - Rev:
01/21/09 j) Aggregate Reports. Not withstanding
anything to the contrary contained in this
Agreement, ARK Loyalty d.b.a. MyContactApp may
track, analyze, and/or create reports related to
aggregate activity in connection with
Customer's use of the Services and share
such information with its affiliated companies.
ARK Loyalty d.b.a. MyContactApp and such
companies may utilize such information to
create, market, and sell products and services.
Customer has the right to grant ARK Loyalty
d.b.a. MyContactApp and such companies the
foregoing rights. k) Independent Contractors.
The relationship of the parties will be that of
independent contractors. Neither of the parties
will have, and will not represent that it has,
any power to bind the other or to create any
obligation on behalf of the other. Nothing
stated in this Agreement shall be construed as
constituting or as creating the relationships of
employer/employee, fiduciary, principal/agent,
partnership, joint venture or representative of
the other. l) Third Party Beneficiaries. This
Agreement is not intended to benefit any third
party and the parties do not intend to create
any third party beneficiary rights under this
Agreement. m) Precedent. The preprinted terms
and conditions of any purchase order or other
document issued by Customer in connection with
this Agreement shall not be binding on LLC and
shall not be deemed to modify this Agreement. n)
Ownership of Data: Databases collected via
text, web, or paper are the sole and exclusive
property of Customer. This data can be
downloaded and used by Customer only, and cannot
be sold, transferred, used, or disseminated by
any other party without the express written
permission from Customer.
13.
NOTICES. a) Do not accept this contract before
you read it IN WITNESS WHEREOF, the parties have
caused this Agreement to be accepted by their
duly authorized representative.
Schedule
A
Mobile
Engagement
No
cancellation fee
Adaptive webapp
All
limitations based on the package you have
selected
*Progressive Webapp*
Under no
circumstances may you, your company or,
organization or anyone associated or with you
use or create anything similar to the patent
pending technology developed by, ARK LOYALTY LLC
a Wyoming corporation or ARK Loyalty d.b.a.
MyContactApp or My Contact App. This includes
details disclosed before the completion of the
purchase of your plan during the use of the
service and for a period equal to the patent
laws after your use of the service. If it is
found that you have disclosed information to
someone or some organization that attempts to
duplicate or reverse engineer our property then
you may be held liable.
* = May not
be available at the time of your contract
execution and may or may not require additional
investment depending on the details of your
request. You may be required to use a new
URL as your Contact App Link in order to use the
Progress Web Application*
We will not
use any of your data or your customers data
without consent from all parties.
Will not
not use any data from 3rd party applications or
companies.
We will
only communicate with parties that enter data
directly or communicate directly with our
platform / technology
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PART II: LICENSE
PACKAGE FEATURES
TYPE OF
LICENSE:
|
Corresponding with package
selection
|
PACKAGE
FEATURES:
Number of
Authorized Users: Unlimited
Number of
Client Accounts: SEE PACKAGE
DETAIL
Training: ONLINE VIDEOS / SEE PACKAGE
DETAILS
|
TERM:
|
Month to
Month
(See Terms
and Conditions)
|
PART III:
FEES
TYPE OF
FEE
|
AMOUNT
|
UNITS
|
DUE
DATE
|
Initial
Application Set-up fee
|
See Plan
Details
Schedule
A.
|
See Plan
Details
|
See Plan
Details
/ on
approval
|
Monthly
Licensing of Application including customer and
marketing support
|
See Plan
Details
Schedule
A.
|
Monthly
See Plan
Details
Schedule
A.
|
Monthly,
Beginning on Effective Date
|
Messaging
Rates
|
See Plan
Details
Schedule
A.
|
Per month
– billed in arrears
See Plan
Details
Schedule
A.
|
Monthly,
Beginning on Effective Date
|
ADDITIONAL TERMS AND
CONDITIONS:
These terms and conditions
supersede any terms in the agreement set-forth in master license
agreement
ARK Loyalty d.b.a.
MyContactApp paid packages also includes user capable support:
general support, campaign set-up, and marketing assistance up to
and not to exceed 1 hour a month. The first month of service
comes with 3 hours of support and the second month of service
comes with 2 hours of support every month thereafter comes with
1 hour of user capable support which is billed on a case by case
situation for any support deemed as a user capable task. The
minimum hourly rate is $25.00 you will be informed of the fee
prior to any service being completed. All packages come with
email support and all available training videos.
ARK Loyalty d.b.a.
MyContactApp, RESERVES THE RIGHT TO CONTACT YOUR CUSTOMERS
NO MORE THAN TWICE A YEAR AND NEVER AGAIN IF ASKED TO STOP.
UNLESS THEY OPT BACK IN.
NexGen Program Payment
Options: Lease, Cash, Check - Money Order, Credit-Debit Card
(invoice can be sent after approval if you don’t want to
include card data below)
Lease – Click
Here for 30 second lease approval, if more information
is needed we will get back to you.
If Cash payment is being
made then half is due upon approval and half due upon delivery
of your tablet, speak with your account representative for
arrangements.
If paying with Check or
Money Order, make payable to ARK Loyalty LLC or CQS Business
Solutions LLC, see above for mailing address.
I hereby acknowledge and
authorize ARK Loyalty LLC d.b.a. MyContactApp or CQS Business
Solutions LLC to charge my credit card according to the terms of
this agreement herein. ___Yes, Charge my card the NexGen
annual payment shown below.
Amount to be charged:
(Annual NexGen payment) $_____________
Credit Card
Number:
CCV:
Exp date: /
Cardholder’s name as
it appears on the credit card:
Cardholder’s billing
address:
Street:
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City:
State: Zip:
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AUTHORIZED
SIGNATURES:
This document represents
the acknowledgement that Client has read this Order Form, the
attached Terms and Conditions, and all Exhibits, Statements of
Work and/or other documents incorporated therein, and agree and
accept such terms as of the Effective Date.
MASTER LICENSE AGREEMENT
ARK Loyalty LLC d.b.a. MyContactApp and CQS Business
Solutions
Terms and
Conditions
This Agreement (the
“Agreement”) is entered into by and between ARK
Loyalty d.b.a. MyContactApp (having offices at 412 N Main St Ste
100 Buffalo, WY 82834 USA, and (“Customer”), and
shall be effective as of this date.
1. SERVICES. LLC will
provide the services set forth in this agreement. LLC will use
commercially reasonable efforts to provide a secure transmission
of customer data to and from the LLC database located on LLC
Internet computer network. The services and all related software
and intellectual property are hereinafter referred to as the
“Services.”
2. FEES. Customer shall pay
the fees set forth during the Term of this Agreement. LLC will
invoice Customer for these fees on a 30-day billing cycle.
Customer agrees to pre-pay for every month of service.
Customer acknowledges that all text message overages are charged
in arrears at the rate designated in their existing monthly
plan. Customer shall pay all invoices within ten (10) days of
the date of invoice. There may be an additional one time set-up
fee billed with the first month of service. All charges and fees
hereunder are exclusive of federal, state and local excise,
sales, use and other taxes now or hereafter levied or imposed
for the provision of Services hereunder. Except for taxes on
LLC's net income, Customer shall be liable for and pay all
such taxes and other levies, regardless of whether included on
any invoice. LLC is prohibited from changing the amount,
structure, method and/or basis of the fee at any time during the
term of this Agreement. Customer has the exclusive right to
upgrade or downgrade their service plan at any time with 15
days’ notice in writing to LLC.
3. GUARANTY. If
Customer has been unable to utilize the services provided
by LLC for any reason that is the fault of LLC, Customer shall
have the right to cancel all services provided by LLC, and LLC
will provide to Customer a full refund of all monies previously
paid to LLC to Customer for the period that services were not
provided. Should Customer choose to cancel service and seek a
refund, Customer must provide written notice to LLC within
fifteen (15) days prior to the completion of the three month of
service. Said notice must include a detailed basis for the
cancellation
4. LICENSE; RESTRICTIONS.
a) LLC hereby grants Customer a non-exclusive, non- transferable
license to access and use the Services at Customer's place
of business. Customer is prohibited from reselling, loaning or
otherwise sharing the Services or divulging any related
confidential information including, but not limited to passwords
or instructional manuals. Except as expressly permitted in this
Section, Customer may not use, reproduce, transfer, share,
sublicense or transmit the Services in any form or by any means
without the prior written consent of LLC. Customer further
agrees not to modify, translate, transform, decompile, reverse
engineer, disassemble, or otherwise determine or attempt to
determine source code from the Services or related software, or
to permit or authorize a third party to do so. Title to the
Services, and all related software, technical know-how, and
intellectual property rights therein are and shall remain the
exclusive property ofLLC. Customer shall not take any action to
jeopardize, limit or interfere in any manner with LLC's
ownership of, and rights with respect to any licensed software
and/or Services. b) COMPLIANCE. Customer acknowledges and agrees
that, as between Customer and LLC, Customer is responsible for
compliance with all federal, state or other applicable laws
governing the use of the Services, including but not limited to
laws applicable to direct marketing and privacy. Customer
further acknowledges and agrees that LLC merely provides a
routine conveyance,” as that term is defined in 15 U.S.C.
§ 7702 (CAN SPAM Act), in connection with the transmission
of any electronic mail messages on behalf of Customer in
connection with the Services. Customer also agrees to comply
with LLC's policies and rules for use of the Services,
including its e-mail transmission services, as made available to
Customer and as amended by LLC from time to time in its sole
discretion.
5. INTELLECTUAL PROPERTY
RIGHTS. It is the intent of the parties that LLC shall own the
Services, as well as all patents, copyrights, trademarks, trade
secrets and other intellectual property rights associated with
or appurtenant to the Services. Neither Customer, nor its
subsidiaries, affiliates, agents, or employees shall have any
right to use the Services other than for the purposes set forth
herein. In all cases, the Services are and shall remain the sole
and exclusive property of LLC. Customer covenants to take no
action nor commit any omission that would be adverse to
LLC's sole and exclusive ownership of the Services. If
Customer, its subsidiaries, affiliates, employees or any third
parties obtain any rights of ownership in or use of the Services
through operation of applicable law or otherwise, Customer
agrees to and hereby transfers, grants, conveys, assigns and
relinquishes exclusively to LLC any and all right, title and
interest it has or may acquire in the Services under patent,
copyright, trade secret, trademark or other law relating to
intellectual property in perpetuity or for the longest period
otherwise permitted by law.
6. CONFIDENTIALITY. a)
Customer acknowledges that the Services are the trade secrets of
LLC. b) Each party agrees to use good faith efforts and at least
the same care that it uses to protect its own confidential
information of like importance, but in no event less than
reasonable care, to prevent unauthorized dissemination or
disclosure of the other party's confidential information
both during and after the Term of this Agreement (including
without limitation, the Services). In addition, each party shall
use the other party's confidential information solely as
necessary for the performance of this Agreement. Confidential
information will include, but is not necessarily limited to (i)
non-public financial information concerning either party; (ii)
information concerning either party's product line (both
current and planned), research, development, customers, and
pricing and marketing plans, unless and until publicly
announced; and (iii) any information designated as confidential
in writing at or prior to disclosure. c) Except as required by
law, LLC will not disclose to any non-affiliated third party any
non-public individually identifiable customer data received from
Customer without Customer's prior approval. LLC shall
maintain at all times during the Term appropriate and reasonable
safeguards to protect such individually identifiable customer
data using measures no less rigorous than those used to protect
LLC's own customers' individually identifiable data. d)
The restrictions in this Section 5 Confidential Information
shall not apply to information which: (i) has become publicly
known without breach of this Agreement or any other
confidentiality obligation by the receiving party; (ii) has been
given to the receiving party by a third party with a legal right
to so disclose; (iii) was known to the receiving party at the
time of disclosure as evidenced by its written records; (iv) was
independently developed by the receiving party without reference
to the other party's confidential information; or (v) is
necessary to establish the rights of either party under this
Agreement; or must be disclosed by the receiving party to comply
with any requirement of law or order of a court or
administrative body (provided that the receiving party will
endeavor to notify the disclosing party of the issuance of such
order and reasonably cooperate, at disclosing party's
expense, in its efforts to convince the court or administrative
body to restrict disclosure).
7. LIMITED WARRANTY;
LIMITATION OF LIABILITY. a) LLC PROVIDES THE SERVICES AND
SOFTWARE “AS IS”AND MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS, ORAL, IMPLIED OR STATUTORYAND SPECIFICALLY
DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, BUT NOT LIMITED TO,
THE QUALITY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING
FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. b) LLC SHALL
NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR INJURY TO ANY
PERSON OR PROPERTY WHATSOEVER RESULTING FROM THE USE OF OR
INABILITY TO USE THE SERVICES OR SOFTWARE OR FOR ANY INCIDENTAL,
CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES
OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR
RELATING TO THE SERVICE FOR SOFTWARE, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE. SPECIFICALLY, LLC SHALL NOT BE
RESPONSIBLE FOR ANY LOST PROFITS OR REVENUE, OR COSTS,
INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF
LOSS OF USE OF THE SERVICES OR SOFTWARE, LOSS OF DATA, BUSINESS
INTERRUPTION. COST OF RECOVERING SOFTWARE OR DATA, COST OF
SUBSTITUTE SOFTWARE OR DATA. OR OTHER SIMILAR COSTS. IN NO EVENT
SHALL LLC'S TOTAL LIABILITY OF ANY KIND, REGARDLESS OF THE
FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT,
EXCEED THE TOTAL AMOUNT PAID TO LLC UNDER THIS AGREEMENT DURING
THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
8. INDEMNIFICATION. a)
Customer assumes sole responsibility for all use of the Services
and agrees to indemnify, defend and hold ARK Loyalty LLC d.b.a.
MyContactApp and its affiliates, and its and their respective
officers, directors, employees, agents and representatives
harmless from and against any and all claims, causes of action,
suits, proceedings, demands, damages, costs, expenses and
liabilities of any kind whatsoever, including (without
limitation) legal expenses and reasonable attorneys' fees,
from third parties (“Claims”), arising out of or in
any way related to (i) Customer's use of the Services,
including without limitation the use or inability to use the
same, or any errors or omissions in the same, or (ii) any breach
by Customer of this Agreement. b) If a preliminary or final
judgment shall be obtained against Customer's use of the
Services by reason of a Claim that the Services infringe or
misappropriate the intellectual property rights of a third party
or if the Services are likely to become the subject of such a
Claim, ARK Loyalty LLC d.b.a. MyContactApp shall at its option
and expense either procure for Customer the right to continue to
use the Services as provided in this Agreement, or replace or
modify the Services with a version of Services that is
non-infringing, but performing substantially similar functions.
In the event that neither of the foregoing options is
commercially reasonable in LLC's sole judgment, LLC shall
cease providing the Services to Customer and refund to Customer
any pre-paid license fees paid by Customer for the remainder of
the Term. THE RIGHTS AND OBLIGATIONS IN THIS SECTION 7(b) ARE
LLC'S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER'S
SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY INTELLECTUAL
PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
9. TERMS AND TERMINATION a)
The term of this agreement shall commence upon acceptance herein
and shall continue for a period of One (1) year .
Thereafter, this Agreement shall automatically renew on a
month-to-month term unless either party provides written notice
to the other party that it will not renew, such notice to be
given at least thirty (30) days prior to the expiration of the
then-existing Term. b) Either party may terminate this Agreement
immediately for any breach of this Agreement by the other party
that is not cured within thirty (30) days after receipt of
written notice of the breach from the non-breaching party;
provided however, such cure period shall not apply if Customer
is in breach of Section 3 License; Restrictions of this
Agreement, or if either party is in breach of Section 5
Confidentiality, and further provided, however, that the cure
period for the breach of an obligation to pay fees when due
shall be ten (10) days. LLC may terminate this Agreement at any
time without cause upon thirty (30) days written notice to
Customer. Page 2 VOID IF ALTERED - Rev: 01/21/09 c) This
Agreement shall be immediately terminated upon the dissolution
or bankruptcy of Customer, the filing of a bankruptcy petition
by or against Customer or a general arrangement or assignment by
Customer for the benefit of creditors. d) Following expiration
or termination of this Agreement for any reason, all rights and
licenses granted herein shall terminate and Customer shall
immediately cease use of and certify to LLC that it has
destroyed all copies of the Services and related software. e)
Termination or expiration of this Agreement for any reason shall
not release any party from any liabilities or obligations set
forth in this Agreement that by their nature would be intended
to be applicable following any such termination or expiration.
f) LLC reserves the right to suspend the Services or terminate
this Agreement in the event that a payment due remains unpaid
three (3) business days after Customer has been notified of such
non-payment.
10. INJUNCTIVE RELIEF. Each
party acknowledges that the Services are unique property, and
that the unauthorized use or disclosure thereof shall cause ARK
Loyalty LLC d.b.a. MyContactApp irreparable harm that could not
be adequately compensated by monetary damages. Accordingly, in
addition to any other remedies available to it at law or in
equity, LLC will be entitled to injunctive relief to enforce the
terms of this Agreement, including to prevent any actual or
threatened unauthorized use or disclosure of confidential
information or the Services.
11. GOVERNING LAW; DISPUTE
RESOLUTION. a) This Agreement will be construed in accordance
with and governed by the laws of the State of Wyoming, without
regard to principles of conflicts of law. Any disputes under
this Agreement shall be brought in Jackson County, Wyoming. In
the event that the Dispute Resolution section is invalidated,
the parties hereto consent to the jurisdiction of any local,
state or federal court in which an action is commenced and
located in accordance with the terms of this Section and that is
located in Jackson County, Wyoming. The parties further agree
not to disturb such choice of forum, and if not resident in such
state, waive the personal service of any and all process upon
them, and consent that such service of process may be made by
certified or registered mail, return receipt requested,
addressed to the parties as set forth herein. b) Any dispute or
claim arising hereunder shall be submitted to binding
arbitration in Jackson County, Wyoming, and conducted in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association (AAA), and the parties expressly waive
any right they may otherwise have to cause any such action or
proceeding to be brought or tried elsewhere. The parties
hereunder further agree that: (i) any request for arbitration
shall be made in writing and must be made within a reasonable
time after the claim, dispute or other matter in question has
arisen; provided however, that in no event shall the demand for
arbitration be made after the date that institution of legal or
equitable proceedings based on such claim, dispute, or other
matter would be barred by the applicable statutes of
limitations; (ii) the appointed arbitrator must be a former or
retired judge or attorney at law with at least ten (10) years
experience in the substantive area of this Agreement; (iii) the
award or decision of the arbitrator, which may include equitable
relief, shall be final and judgment may be entered on such award
in accordance with applicable law in any court having
jurisdiction over the matter. c) In any action, arbitration, or
other proceeding by which one party either seeks to enforce its
rights under the Agreement, or seeks a declaration of any rights
or obligations under the Agreement, the prevailing party will be
entitled to reasonable attorney's fees and reasonable costs
and expenses incurred to resolve such dispute and to enforce any
final judgment. In addition, if Customer or Customer's
account is referred to an attorney or collection agency for
collection, Customer will pay for all collection fees, costs and
expenses incurred by LLC, including attorneys' fees and fees
of collection agencies.
12. GENERAL. a) Press
Releases. LLC may issue press releases and other marketing and
promotional material describing the relationship created by this
Agreement. Customer shall have thirty (30) days to review such
material prior to its release. LLC may use specific information
previously reviewed for public release by Customer, without
further approval. b) Notices. All notices and other
communications to each party must be in writing and sent to the
party at the address specified in this Agreement or to such
alternative address as either party may furnish in writing to
the other from time to time. If to LLC, Attention: Legal
Department. Unless otherwise agreed, notice shall be deemed
given (i) upon receipt when delivered personally, (ii) upon
written verification of receipt from overnight courier, (iii)
upon verification of receipt of registered or certified mail, or
(iv) upon verification of receipt via facsimile. c) Force
Majure. Neither party shall be liable or deemed to be in default
for any delays or failure in performance resulting directly or
indirectly from any cause or circumstances beyond its reasonable
control, including but not limited to acts of God, war or
warlike conditions, terrorism, riot, embargoes, acts of civil or
military authority, fire, flood, accidents, strikes or labor
shortages, sabotage, Internet failure, transportation facilities
shortages, fuel or materials or for failures of equipment,
telecommunications facilities or third party software programs.
d) Severability. If any term or condition hereof is found by a
court or administrative agency to be invalid or unenforceable,
the remaining terms and conditions hereof shall remain in full
force and effect and shall be enforceable to the maximum extent
permitted by law. e) Waiver. The failure of either party to
enforce any provision of this Agreement shall not constitute or
be construed as a waiver of such provision or of the right to
enforce it at a later time. A party's remedies set forth
herein are not exclusive and are in addition to any and all
other remedies available at law or in equity, none of which
shall be deemed as waived by virtue of a party's exercise of
any other remedy. f) Entire Agreement. This Agreement and
related exhibits and attachments represent the entire agreement
and understanding of the parties with respect to the subject
matter hereof and supersedes any and al prior agreements and
understandings. There are no representations, warranties,
promises, covenants or undertakings, except as described herein.
g) Service Enhancements. LLC reserves the right to add or delete
programs or services as part of our continued enhancement of the
Services. LLC will give Customer thirty (30) days notice of any
such changes and any fee increases or decreases related thereto.
h) Amendment. Except where otherwise provided herein, this
Agreement may not be amended or otherwise modified except by an
Addendum signed by the parties hereto. i) Assignment. Customer
may not sell, mortgage, assign or otherwise transfer this
Agreement or any of its rights or obligations hereunder to any
other person or entity, without the express written consent of
ARK Loyalty LLC d.b.a. MyContactApp Page 3 VOID IF ALTERED -
Rev: 01/21/09 j) Aggregate Reports. Notwithstanding anything to
the contrary contained in this Agreement, ARK Loyalty LLC d.b.a.
MyContactApp may track, analyze, and/or create reports
related to aggregate activity in connection with Customer's
use of the Services and share such information with its
affiliated companies. ARK Loyalty LLC d.b.a. MyContactApp and
such companies may utilize such information to create, market,
and sell products and services. Customer has the right to grant
ARK Loyalty LLC d.b.a. MyContactApp and such companies
have the foregoing rights. k) Independent Contractors. The
relationship of the parties will be that of independent
contractors. Neither of the parties will have, and will not
represent that it has, any power to bind the other or to create
any obligation on behalf of the other. Nothing stated in this
Agreement shall be construed as constituting or as creating the
relationships of employer/employee, fiduciary, principal/agent,
partnership, joint venture or representative of the other. l)
Third Party Beneficiaries. This Agreement is not intended to
benefit any third party and the parties do not intend to create
any third party beneficiary rights under this Agreement. m)
Precedent. The preprinted terms and conditions of any purchase
order or other document issued by Customer in connection with
this Agreement shall not be binding on LLC and shall not be
deemed to modify this Agreement. n) Ownership of Data:
Databases collected via text, web, or paper are the sole and
exclusive property of Customer. This data can be
downloaded and used by Customer only, and cannot be sold,
transferred, used, or disseminated by any other party without
the express written permission from Customer.
13. NOTICES. a) Do not
accept this contract before you read it IN WITNESS WHEREOF, the
parties have caused this Agreement to be accepted by their duly
authorized representative.
Schedule A
Mobile
Engagement
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No cancellation
fee
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Adaptive
webapp
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All limitations
based on the package you have selected
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*Progressive
Webapp*
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Under no
circumstances may you, your company or organization or
anyone associated or with you use or create anything
similar to the patent pending technology developed by,
ARK LOYALTY LLC a Wyoming corporation or ARK Loyalty LLC
d.b.a. MyContactApp or My Contact App. This includes
details disclosed before the completion of the purchase
of your plan during the use of the service and for a
period equal to the patent laws after your use of the
service. If it is found that you have disclosed
information to someone or some organization that
attempts to duplicate or reverse engineer our property
then you may be held liable.
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May not be
available at the time of your contract execution and may
or may not require additional investment depending on
the details of your request. You may be required
to use a new URL as your Contact App Link in order to
use the Progress Web Application*
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We will not use any
of your data or your customers data without consent from
all parties.
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Will not not use
any data from 3rd party applications or
comapnies.
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We will only
communicate with parties that enter data directly or
communicate directly with our platform /
technology
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