Quikly Master Services Agreement

THIS MASTER SERVICES AGREEMENT (the “Agreement”), is incorporated by reference into the Statement of Work (“SOW”) by and between Quikly, Inc., a Delaware Corporation, with offices at 1505 Woodward Ave, 4th Floor, Detroit, MI 48226 (“Company”), and the Customer named therein (“Customer”).

1. Services and License

a. Company will perform promotion services on behalf of Customer from time to time, which services will be described in detail in a Statement of Work (“SOW”), the form and substance of which shall be mutually agreed to by the parties, and shall be governed by this Agreement. These services are hereafter referred to as the “Services”. The Services will involve time-sensitive, promotional releases awarding rewards or benefits offered by Customer as part of the campaigns. The following definitions apply to such campaigns:

1. “Quikly” shall mean a unit of Customer’s product or services, credit/discount toward the purchase of such product or services, or some other benefit offered by Customer in the course of a campaign pursuant to a SOW.

2. “Quikly Campaign” shall mean the time-sensitive campaign distributing the total Quiklys offered in the Company’s performance as set forth in a SOW.

3. “Participant” shall mean any person who signs up for a Quikly Campaign.

b. If set forth in a SOW, Company may grant a subscription to Customer for the direct use of the proprietary “Quikly Platform,” which is the hosted technological platform that configures, hosts, deploys, delivers and supports Quikly Campaigns on a self-service or managed-service basis. The subscription details shall be specified in the applicable SOW.

2. Effective Date/Term

This Agreement will commence as of the Effective Date set forth above and will continue until terminated by written agreement executed by both parties. Any obligations that survive the termination of this Agreement will continue thereafter in full force and effect.

3. Proprietary Rights

a. License. Company and Customer grant to each other, during the term and subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, non-assignable, worldwide, royalty-free, revocable license to use the other party’s name, web site address, logo, trademarks, copyrights and trade names (the “Intellectual Property”), solely in connection with this Agreement or SOWs executed by and between the parties.

b. Ownership. Customer shall own all right, title, and interest in and to all Intellectual Property developed, designed, created and/or contributed by Customer independent of or pursuant to this Agreement (collectively, the “Customer Materials”). Company is the owner of and shall retain and own all right, title and interest in all its proprietary technology, processes or other technologies independently created and developed by Company that drive the functionality of any Services provided or Quikly Campaigns executed pursuant to the Agreement, including without limitation, all copyright, trade secret, patent, trademarks, user interfaces, creative ideas, and other related intellectual property rights therein and including any derivative works made during the term of this Agreement or thereafter even if improved upon or further developed by Company in the course of Company’s performance under the Agreement (collectively, the “Back-End Technologies”). Company hereby assigns to Customer all right, title, and interest in and to any Intellectual Property created for or on behalf of Customer pursuant to this Agreement, whether independently or jointly with Customer, provided that Company’s Back-End Technologies are expressly excluded from assignment to Customer. No right, title or interest in or to the Back-End Technologies, or any part thereof, is granted to Customer under this Agreement. Customer agrees that during the term of this Agreement and thereafter, it shall not directly or indirectly assert any interest or property right in the Back-End Technologies or contest the validity of Company’s ownership thereof. Customer retains all right, title and interest in and to all Customer Materials, and Company shall transfer the Customer Materials or any other property belonging to Customer promptly following written notification from Customer or at the time of termination of this Agreement.

c. Restrictions. Customer shall not (i) assign, transfer, modify, create any derivative work of or private label the Back-End Technologies, or reverse assemble, decompile, reverse engineer or attempt to derive source code or the underlying ideas, algorithms, structure or organization of the Back-End Technologies; or (ii) alter or copy, or permit a third party to alter or copy, any part of the Back-End Technologies. In the event Customer wishes to use either the Intellectual Property or Back-End Technologies for purposes beyond the Quikly Campaign or SOW for which they were developed, it may do so only with Company’s express written permission and the parties will negotiate separate terms for such use.

4. Data

a. Data Collection and Storage. All information provided by individuals through a Quikly website or mobile message, and users of any Customer designated website (“Data”) will be gathered, stored and maintained according to generally accepted Internet data collection standards and any government law, rule or regulation that may take effect during the term of this Agreement. Company shall not knowingly accept Data through a website from children under age 13, except pursuant to the explicit direction of Customer to do so, and then only in compliance with the Children’s Online Privacy Protection Act (“COPPA”). Company will never sell, lease, loan, share, or otherwise give any Data to any third party for any reason without Customer’s express written consent.

5. Taxes

a. Customer will pay any sales or use taxes (except for any tax levied upon or measured by Company’s gross receipts) imposed by any taxing authority and required to be paid by Company or Customer as a result of Services provided or Revenues remitted to Customer under this Agreement. Customer also assumes full responsibility for all sales tax assessed or assessable on the goods or services for which Quiklys are issued to a Participant. Customer will not be liable for any tax levied upon or measured by the income of Company.

6. Representations and Warranties

a. Compliance. Unless otherwise specified in the SOW, the Services include a template document with the terms and conditions necessary to conduct and administer a Quikly Campaign (the “T&Cs”). This template document contains placeholders to input the details specific to a Quikly Campaign. Company covenants and warrants that the T&Cs template complies with all applicable federal, state, and local promotion laws, rules and regulations. Customer covenants and warrants that any language it adds or directs Company to add to the T&Cs template to describe the Quikly Campaign or any modifications it makes or directs Company to make to the T&Cs template shall comply with applicable law. It is expressly understood that the Company does not have internal legal resources, does not review or approve individual Quikly Campaigns for legal compliance, is not responsible for legal compliance of any advertising or promotional messaging supporting any Quikly Campaign or any language not included in the T&Cs template, and the Services expressly exclude legal services.

b. Compliance with T&Cs. Customer hereby covenants and agrees to comply in all respects with the T&Cs governing a Quikly Campaign. Customer hereby covenants and warrants that it shall not alter or modify in any manner any Quikly Campaign once it launches live to the public.

c. Customer Warranties. Customer hereby covenants and warrants the following:

1. Customer’s website and business do not and will not knowingly contain or promote violence, discrimination based on race, gender, religion, nationality, disability, sexual orientation, age, family status, or any other legally protected class, or any other materials deemed by Company to be unsuitable or harmful to the reputation of Company;

2. Customer’s website and business do not and will not knowingly promote illegal activities or violations of the intellectual property rights of others; or

3. Customer’s website and business do not and will not knowingly promote activities generally understood as Internet abuse, including, but not limited to, violations of the federal CAN-SPAM Act of 2003 (15 U.S.C. 7701 et seq.), violations of the Telephone Consumer Protection Act of 1991 (47 U.S.C. 227), or allow users to engage in similar activities that, in the discretion of Company, constitute Internet abuse.

7. Standard of Performance; Warranty of Service; Maintenance

Company will perform or cause all Services required to be provided or referenced under this Agreement, including any design, modification, data conversion, migration, consulting and support services (a) in an expeditious, competent, professional and efficient manner; (b) in keeping with standards followed by reputable vendors in the advertising industry; (c) in compliance with this Agreement and all applicable laws and specifications; and (d) by utilizing its best efforts, diligence, professional skill and best judgment. In the event and to the extent that any Services or deliverables fail, in whole or in part, in any respect to adhere to any of the foregoing standards or requirements, the cure, correction and completion of the affected failed, nonconforming or incomplete Services or deliverables or portion of either shall be done promptly, and at the sole cost and expense of Company. Customer agrees to notify Company as promptly as reasonably practicable of any defect, error or malfunction discovered by Customer.

8. Indemnification

Company will defend, indemnify, and hold harmless Customer, its officers, employees, affiliates and agents (collectively, for purposes of Section 8 only, “Customer”) against and from all claims, suits, judgments, losses, damages, fines or costs (including reasonable attorneys’ fees and expenses) resulting from any claim, suit or demand by any third party for loss or damage arising out of (i) any breach of this Agreement, or (ii) any failure of supervision, negligence, or willful misconduct of Company in connection with Company’s performance under this Agreement, all except to the extent caused by Customer’s breach of this Agreement or wrongful conduct. Company’s indemnification obligations set forth herein shall not apply to any claims that are due to delayed delivery as a result of late or under payment by Customer resulting in a claim. Company will have no obligation or liability arising out of or relating to any claim of any kind that results from: (a) the combination, operation or use with the Back-End Technologies or Services of any content, product, apparatus, software, hardware, or service supplied, controlled or used by Customer or any third party to the extent such claim could have been avoided if the content, product, apparatus, software, hardware, or service were not used in such combination; (b) failure of Customer to use updates or modifications to any Back-End Technologies provided by Company, including those provided to avoid infringement; (c) allegations that including certain types of content in messages sent to mobile devices or methods of content-delivery infringe intellectual property rights; or (d) compliance by Company with designs, plans or specifications furnished by or on behalf of Customer. Company’s obligations and the exclusions under this paragraph will survive the termination of this Agreement.

Customer will defend, indemnify, and hold harmless Company, its officers, employees, contractors, affiliates and agents (collectively, for purposes of Section 8 only, “Company”) against and from all claims, suits, judgments, losses, damages, fines or costs (including reasonable attorneys’ fees and expenses) resulting from any claim, suit or demand by any third party for loss or damage arising out of (i) Customer’s fraudulent behavior, negligence, intentional acts or omissions, misrepresentation, failure to honor a Quikly Campaign in accordance with its terms, or other violation of this Agreement; (ii) any Content provided by Customer, or (iii) to the extent Customer determined any or all Quikly Campaign components, any actual or alleged failure of the Quikly Campaign to comply with all federal, state, county, and provincial laws, ordinances, regulations, rules, and codes applicable to Customer and/or the Quikly Campaign. Customer’s obligations and all limitations under this paragraph will survive the termination of this Agreement.

The obligation to defend and indemnify provided under this Section shall apply only if (i) the indemnified party promptly notifies the indemnifying party in writing of any potential claim within a reasonable time (provided, however, that the failure to so notify an indemnifying party shall not affect the obligations of the indemnifying party hereunder unless and only to the extent that the indemnifying party is actually materially prejudiced by such failure); (ii) the indemnifying party shall assume the defense thereof by appointing a reputable counsel reasonably acceptable to the indemnified party to be the lead counsel in connection with such defense; (iii) the indemnified party provides the indemnifying party with reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense, for the defense and settlement of any claim; and (iv) the indemnified party provides the indemnifying party with the exclusive right to control and the authority to defend and settle any claim; and (v) prior to the indemnifying party assuming control of such defense it shall first verify to the indemnified party in writing that such indemnifying party shall be fully responsible (with no reservation of any rights if appropriate) for all liabilities and obligations relating to such claim for indemnification and that it shall provide full indemnification to the indemnified party with respect to such action, lawsuit, proceeding, investigation or other claim giving rise to such claim for indemnification hereunder.

The indemnified party shall be entitled to participate in the defense of such claim and to employ counsel of its choice for such purpose; provided, however, that the fees and expenses of such separate counsel shall be borne by the indemnified party (other than any fees and expenses of such separate counsel that are incurred prior to the date the indemnifying party effectively assumes control of such defense which, notwithstanding the foregoing, shall be borne by the indemnifying party). If the indemnifying party controls the defense of any claim, the indemnifying party shall obtain the prior written consent of the indemnified party before entering into any settlement of a claim or ceasing to defend such claim if, pursuant to or as a result of such settlement or cessation, injunctive or other equitable relief will be imposed against the indemnified party, any intellectual property rights of the indemnified party shall be rendered invalid or unenforceable or if such settlement does not expressly and unconditionally release the indemnified party from all liabilities and obligations with respect to such claim, without prejudice.

9. Limitation of Liability

EXCEPT FOR INDEMNIFICATION OBLIGATIONS HEREUNDER, IN THE EVENT OF A MATERIAL BREACH BY EITHER PARTY TO THIS AGREEMENT DAMAGES SHALL BE LIMITED TO THE FEES PAID FOR THE QUIKLY CAMPAIGN TO WHICH THE BREACH IS RELATED. NEITHER PARTY WILL BE LIABLE FOR, AND EACH PARTY WAIVES AND RELEASES ANY CLAIMS AGAINST THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES, LOST PROFIT, OR LOSS OF PROSPECTIVE ECONOMIC ADVANTAGE, RESULTING FROM PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, CERTAIN JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, AND, AS SUCH, SOME PORTION OF THE ABOVE LIMITATION MAY NOT APPLY.

10. Confidential Information

Confidential Information shall mean any information relating to or disclosed in the course of performance of this Agreement, including, without limitation: any information, idea, products, inventions, software code, computer programs, technical processes, trade secrets, data, database lists, technical information, sales and marketing activities, procedures, pricing policies, research, operating, financial, and other business affairs or related information, whether in oral, written, graphic or electronic form (“Confidential Information”). All Confidential Information of each party is acknowledged as valuable, special and unique assets of that party. During the term and for a period of three (3) years thereafter, the parties agree to keep in strict confidence and not disclose to any third party any and all Confidential Information of the other party which has been obtained during the term hereof except for any information (i) which is or becomes generally available to the public without a breach of this Agreement; (ii) which is a matter of common knowledge; (iii) in the possession of the party prior to its disclosure by the other party as shown by such party’s files recorded prior to the time of disclosure; (iv) is independently developed by a party without use, aid or reference to the disclosing party’s Confidential Information; (v) which is disclosed under operation of law, except that the receiving party will disclose only such information as is legally required; or (vi) which has been obtained from a third party. Each party shall take such reasonable measures and make such reasonable efforts to protect other party’s Confidential Information, including such measures taken by such party to protect its own Confidential Information.

11. Publicity

Company may refer to Customer, and any of its brands, as a customer reference after campaign launch and under mutually agreeable terms in non-public business dealings with potential customers and financial concerns. The Parties agree that press releases acknowledging the existence of the relationship between Customer and Company may be issued provided that a copy of such press release is provided to the non-issuing party for review and approval before release, such approval not to be unreasonably withheld, conditioned or delayed.

12. Force Majeure

Neither party will be responsible for delays in or suspension of performance (excluding the obligation to pay for Services rendered and approved and goods sold and delivered) caused by acts of God or governmental authority, acts of terrorism, war, strikes or labor disputes, fires or other loss of manufacturing facilities, breach by suppliers of supply agreements, work stoppage, technological, computer hardware or software errors, delays or breakdowns, including those caused by attacks from unauthorized users who access Company’s technological infrastructure (“Hackers”) or other similar or dissimilar cause beyond the reasonable control of that party.

13. Termination

a. This Agreement will commence as of the Effective Date set forth above and will continue until terminated by written agreement executed by both parties. Any obligations that survive the termination of this Agreement will continue thereafter in full force and effect.

b. Either party may terminate this Agreement with immediate effect, together with all Services required under any SOW executed by the parties, in the event of the other party’s insolvency, bankruptcy filing, involvement in activities constituting a violation of state or federal law, or actions injurious to the terminating party’s business or business reputation.

c. If either party (the “Defaulting Party”) is in breach of this Agreement or a SOW executed by the parties or fails to observe or perform any of its obligations under this Agreement or SOW, and if this breach or failure continues for a period of ten (10) days after written notice of such breach or failure to the Defaulting Party (except for any payments due or obligations with respect to insurance, where the period to cure will be five (5) days after notice), then, without prejudice to any other rights or remedies the other party may have, this Agreement will terminate immediately following such opportunity to cure the breach or failure has expired. All obligations of each party that have accrued before termination or that are of a continuing nature will survive termination.

d. Upon termination or expiration of this Agreement, each party will return to the other party all Intellectual Property, Back-End Technology and other documentation and confidential information received from such other party and shall immediately cease using the Intellectual Property of the other party except as the parties may otherwise agree in writing or to the extent permitted by applicable law.

14. Non-Waiver

No waiver by either party of any default or breach by the other party of any provision of this Agreement will operate as or be deemed a waiver of any subsequent default or breach.

15. Third Party Rights

Except as expressly stated herein, nothing contained in this Agreement will or is intended to create or will be construed to create any right in or any duty or obligation to any third party.

16. Amendments

This Agreement may be changed, modified or amended from time to time only by express written agreement of the parties executed by their authorized representatives.

17. Notices

All notices, requests, reports, consents, approvals or designations given in connection with this agreement will be given in writing and will be sent by first class express mail, postage prepaid to the addresses listed below, unless either party hereto notifies the other party of a different address.

To Customer: The name and address of the Customer set forth in the SOW

To Company: Quikly, Inc. 1555 Broadway Street, 3rd Floor Detroit, MI 48226 Attn: Shawn Geller

The effective date of any notice, request, report, consent, approval or designation given in conjunction with this agreement will be the date on which it is received by the addressee. Any notice, request, report, consent, approval or designation given otherwise than in accordance with this paragraph shall be deemed ineffective.

18. Governing Law/Dispute Resolution

The provisions of this Agreement will be construed and enforced in accordance with, and any dispute arising out of or in connection with this Agreement, including any action in tort, will be governed by, the laws of the State of Michigan. In the event of a conflict between the terms of this Agreement and any SOW, the terms and conditions of this Agreement shall prevail, although every effort shall be made to interpret the agreements in a manner that gives effect to each of them. Each party hereby irrevocably submits to the exclusive jurisdiction of the Courts located in and for Wayne County, Michigan.

19. Entirety of Agreement

This Agreement supersedes all prior oral or written representations or communications between the parties and, together with any attachments, constitutes the entire understanding of the parties, regarding the subject matter of this Agreement.