SmartCart

SMART CART SERVICE SYSTEMS, LLC

MASTER SERVICES AGREEMENT

THIS MASTER SERVICES AGREEMENT (the “Agreement”), effective as of the day of ________________, 2012 is entered into by and between SMART CART SERVICE SYSTEMS, LLC, a Texas limited liability company (hereinafter “Smart Cart”) and (hereinafter “Company”).

RECITALS

  1. Whereas, Smart Cart is a Company that specializes in smartphone applications which provide direct service to individuals whether on the golf course or other locations;

  2. Whereas, Smart Cart will provide the services and products (“Services”) to Company, in the capacity described below, on the terms and conditions, and subject to the rights of termination hereinafter set forth;

  3. Whereas, Company is willing to accept said Services on such terms and conditions.

AGREEMENT

NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Smart Cart and Company have agreed and do hereby agree as follows:

  1. SCOPE OF SERVICES. This Agreement sets forth the terms and conditions by which Smart Cart will deliver and Company will receive any or all of the services and products by Smart Cart, including use and access to the Smart Cart Application, professional/support services, and content delivery. This Agreement is intended to cover any and all additional Services provided by Smart Cart.

  2. TERM. The term of this Agreement shall commence on the date thereof and shall continue for a period of twelve (12) months (“Initial Term”).

  3. TERMINATION DURING THE INITIAL TERM. This Agreement may be terminated by either party at any time for any or no reason upon either party giving to the other no less than thirty (30) days’ prior written notice of termination. No matter which party terminates the Agreement pursuant to this Section, any and all payment obligations of Customer under this Agreement for Services provided through the date of termination will immediately become due, and Customer shall be required to prepay for any portion of the Services that have not been paid for and are to be rendered during such thirty (30) day period.

  4. FEES AND PAYMENT TERMS. Company will pay all fees due according to the prices and terms listed on Schedule A attached and incorporated herein. All invoices are due upon delivery, subject to any additional payment terms set forth in Schedule A and become past due thirty (30) days later without demand or set off by Smart Cart. If any invoice is not paid to Smart Cart within thirty (30) days of delivery, a late charge shall accrue on the delinquent amount at a rate of 1.5% per month, or the maximum rate permitted by law, whichever is less. Any and all dispute claims must be submitted to Smart Cart within thirty (30) days of receipt of the applicable invoice. Smart Cart shall have the right, at its election and without obligation, in addition to all of its other rights and remedies, to immediately terminate the Master Services Agreement and/or suspend performance in the event of any overdue payment in excess of thirty (30) days.

  5. OBLIGATIONS OF COMPANY. Company shall become familiar with the features and benefits of Smart Cart’s Applications, Products and/or Services and shall be responsible for educating, training and supporting Company’s employees. In addition, Company shall be responsible for the manner in which the Application is used, including the maintenance of data, online content, and all other matters related to the use of the Service.

  6. TRAINING AND SUPPORT. Smart Cart shall provide Company with such training and support as Smart Cart determines in its sole discretion is necessary for the Company to promote and sell the Application, Product or Services of Smart Cart.

  7. SMART CART NOT RESPONSIBLE FOR WORKERS' COMPENSATION. No workers' compensation insurance shall be obtained by Smart Cart concerning Company or the employees of Company. Company shall comply with the workers' compensation law concerning Company and the employees of Company.

  8. NON-WAIVER. The failure of either party to exercise any of its rights under this agreement for a breach thereof shall not be deemed to be a waiver of such rights or a waiver of any subsequent breach.

  9. NO AUTHORITY TO BIND. Neither party has authority to enter into contracts or agreements on behalf of the other party. This agreement does not create a partnership between the parties.

  10. RETURN OF PROPRIETARY INFORMATION AND NON-DISCLOSURE.

(a) RETURN OF PROPRIETARY INFORMATION. Upon termination of this Agreement for any reason, Company shall immediately turn over to Smart Cart any “proprietary information” as defined below. Company shall have no right to retain any copies of any material qualifying as “proprietary information”, and is restricted from reselling or redistributing any “proprietary information” for any reason whatsoever after termination of this Agreement hereunder without the express written consent of Smart Cart.

(b) NON-DISCLOSURE. It is understood and agreed that, in the course of this Agreement hereunder and through the Services of Smart Cart, Company will receive, deal with and have access to Smart Cart’s “proprietary information” and that Company holds Smart Cart’s “proprietary information” in trust and confidence. Company agrees that it shall not, during the term of this Agreement or thereafter, in any fashion, form or manner, directly or indirectly, retain, make copies of, divulge, disclose or communicate to any person, in any manner whatsoever, except when necessary or required in the normal course of this Agreement and for the benefit of or with the express written consent of Smart Cart, any “proprietary information” or any information of any kind, nature or description whatsoever concerning any matters affecting or relating to Smart Cart’s business.

(c) PROPRIETARY INFORMATION DEFINED. For purposes of this Agreement, “proprietary information” means and includes the following: the identity of clients or customers or potential clients or customers of Smart Cart; any written, typed or printed lists or other materials identifying the clients or customers of Smart Cart; any financial or other information supplied by clients or customers of Smart Cart; any and all data or information involving the techniques, programs, methods or contacts employed by Smart Cart in the conduct of its business; any lists, documents, manuals, records, forms, or other materials used by Smart Cart in the conduct of its business; any descriptive materials describing the methods and procedures employed by Smart Cart in the conduct of its business; any and all Smart Cart documents, files, data and information; and, any other secret or confidential information concerning Smart Cart’s business or affairs. The terms “list,” “document,” or their equivalent, as used in this Section 10(c), are not limited to a physical writing or compilation but also include any and all information whatsoever regarding the subject matter of the “list” or “document” whether or not such compilation has been reduced to writing.

  1. INFORMATION RECEIVED BY SMART CART. Company and Application Users may post, upload, submit or otherwise transmit text, graphics, information or other materials (“Data”) to be made available through the Service. By uploading, posting, submitting or otherwise transmitting any Data through the Service, you hereby grant to Smart Cart a non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Data through or by means of the Smart Cart Application. Smart Cart does not claim any ownership rights in any such Data and nothing in this Agreement will be deemed to restrict any rights that you may have to such Data.

  2. TRADEMARKS, TRADENAMES AND CORPORATE LOGOS OF SMART CART. This Agreement in no way creates or conveys a license or permission of any kind for Company to use any of Smart Cart’s trademarks, tradenames or corporate logos, except as required for Company to carry out its obligations under this Agreement, and expressly prohibits the unauthorized use of the same. Company shall not at any time contest or claim rights in any of Smart Cart’s trademarks, tradenames or corporate logos, or cause or permit any other person or entity to do anything that may tend to disparage, confuse or lesson the significance of any trademarks, tradenames or corporate logos.

  3. USE OF COMPANY’S NAME AND LOGO. This Agreement in no way creates or conveys a license or permission of any kind for Smart Cart to use any of Company’s trademarks, tradenames or corporate logos, except as explicitly stated in this Section. Smart Cart shall not at any time contest or claim rights in any of Company’s trademarks, tradenames or corporate logos, or cause or permit any other person or entity to do anything that may tend to disparage, confuse or lesson the significance of any trademarks, tradenames or corporate logos. Company agrees that during the term of this Agreement Smart Cart may publicly refer to Company, orally and in writing, as a customer of Smart Cart in resumes, client lists and other promotional materials and communications, including but not limited to, press releases, brochures, reports, letters and electronic media such as e-mail or Web pages. Company also agrees that during the term of this Agreement Smart Cart may use Company’s name and logo for purposes of the Application’s use.

  4. PATENTS AND COPYRIGHTS. Company agrees that all ideas, concepts, discoveries, properties, computer programs and related source codes, products, processes, improvements on inventions, or original works in any form or record (collectively herein called “Inventions”), developed, conceived, or made by Smart Cart alone or with others, during the term of this Agreement and all extensions, whether or not such Inventions are capable of being patented or copyrighted, which relate solely to Smart Cart Applications (including, but not limited to food, beverage, or remote ordering applications) are and shall be Smart Cart’s sole and exclusive property, and all profits derived therefrom belong to Smart Cart.

  5. INDEMNIFICATION BY COMPANY. Company agrees to indemnify and hold Smart Cart harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys’ fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any employees or third party arising out of (i) injury (including death) to persons or damage to property arising out of the use, operation, ownership, maintenance or control of any of Company’s vehicles, including golf carts, used in connection with the Smart Cart Application, (ii) the goods and services provided to customer’s of Company, including, but not limited to the quality of food and beverages, food and beverage preparation and delivery of food and beverages to customers, and (iii) the gross negligence or willful misconduct of the Company, its employees, agents, or contractors in the performance of this Agreement. Company further agrees to indemnify Smart Cart and its affiliates against any Losses which arise out of, or relate to any content provided by Company or the customers/clients of Company, and Company will reimburse Smart Cart and its affiliates for all legal expenses, including reasonable attorneys’ fees, incurred by Smart Cart and its affiliates in connection with any such Losses.
  6. INDEMNIFICATION BY SMART CART. Smart Cart agrees to indemnify and hold Company harmless against any losses, costs, expenses (including, but not limited to, reasonable attorneys’ fees), claims, damages, liabilities, penalties, actions, proceedings or judgments (collectively, “Losses”) resulting from any claim, suit, action, or proceeding brought by any employees or third party arising out of (i) any infringement or misappropriation or alleged infringement or misappropriation of any United States copyright, trade secret, patent, trademark, or other proprietary right related to any Application codes utilized in connection with any of the services, and (ii) the gross negligence or willful misconduct of the Company, its employees, agents, or contractors in the performance of this Agreement.

  7. WARRANTY DISCLAIMERS. Smart Cart does not monitor or exercise control over the content of the information transmitted through its Application. Use of the services or any information that may be obtained there from is at Company’s own risk. The services are provided on an “as is” basis, and Company’s use of the services is at its own risk. Smart Cart does not make, and hereby disclaims, any and all other express and/or implied warranties, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage, or trade practice. Smart Cart does not warrant that the services will not be uninterrupted, error-free, or completely secure.

  8. LIMITATIONS OF LIABILITY. Except for the parties’ indemnity obligations in Sections 13 and 14, in no event will either party be liable or responsible to the other for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement of goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), product liability, strict liability or otherwise.

  9. HOW NOTICES SHALL BE GIVEN. Any notice given in connection with this agreement shall be given in writing and shall be delivered either by hand to the party or by certified mail, return receipt requested, to the party at the party's address stated below. Any party may change its address stated herein by giving notice of the change by certified mail, return receipt requested.

  10. ASSIGNABILITY. This Agreement is personal in its nature and therefore neither party shall assign its rights or obligations under this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided that the Smart Cart may assign this Agreement and its obligations hereunder to any successor to its business by merger or consolidation or to any party acquiring substantially all of the assets of Smart Carts’ journal of business.

  11. CHOICE OF LAW. Any questions, controversies, claims, disputes, arbitration or litigation arising from or relating to this Agreement shall be governed by the laws of the State of Texas without regard to the application of rules of conflict of law. Venue for all disputes under this Agreement shall be a court of competent located in Collin County, Texas.

  12. ENTIRE AGREEMENT. This Agreement and attached Schedule A embodies the entire agreement of the parties respecting the matters within its scope and may be modified only in writing.

  13. TERMINATION OF PRIOR AGREEMENTS. This Agreement terminates and supersedes any and all prior agreements and understandings between the parties with respect to representation or with respect to the compensation of Representative by Company.

  14. SEVERABILITY. In the event that a court of competent jurisdiction determines that any portion of this Agreement is in violation of any statute or public policy, then only the portions of this Agreement which violate such statute or public policy shall be stricken. All portions of this Agreement which do not violate any statute or public policy shall continue in full force and effect. Further, any court order striking any portion of this Agreement shall modify the stricken terms to give as much effect as possible to the intentions of the parties under this Agreement.

  15. WAIVER. Failure to insist upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of, or failure to insist upon strict compliance with, any right or power hereunder at any one or more times be deemed a waiver or relinquishment of such right or power at any other time or times.

  16. ARBITRATION. All claims, disputes and other matters in question between the parties arising out of the Agreement shall be decided by arbitration in accordance with the rules of the American Arbitration Association (“AAA”), unless the parties mutually agree otherwise. An Arbitrator shall be selected from the panels of Arbitrators of the AAA, pursuant to the procedure set out in the AAA Employment Arbitration Rules. The award by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any Texas or Federal court having jurisdiction thereof. The Arbitrator shall, in its award, allocate between the parties the costs of arbitration, which shall include reasonable attorneys’ fees of the parties, as well as the Arbitrator’s fees and expenses, in such proportions as the Arbitrator deems just. Arbitration shall take place in Collin County Texas.

  17. AMENDMENTS. This agreement may be supplemented, amended or revised only in writing by agreement of the parties.

  18. SEPARATE RIGHT TO COUNSEL. Both Parties acknowledge and agree that they have a separate right to counsel and have had the time and opportunity to consult with counsel of their own choosing. Employee acknowledges that she has had sufficient time to have counsel of her own choosing review this document.

  19. INSPECTION PERIOD. Both Parties acknowledge that this is an important legal document and accordingly agree that they shall have three (3) days from the execution date below to inspect this agreement. If no changes/amendments are proposed within the inspection period then the effective date of this agreement shall be the execution date as set forth below. All proposed changes shall be suggested in writing and provided to the other Party according to the notice provision in Section 21.

  20. CAPTIONS. The captions and Section Numbers in this Agreement are for ease of reference only, and are not meant to provide interpretive guidance.

SMART CART SERVICE SYSTEMS, LLC

SCHDULE A

1. Compensation.

Smart Cart shall receive the following compensation:

□ A One Hundred dollars and 00/100 ($100.00) one time set up fee.

□ One thousand five hundred and 00/100 Dollars ($1,500.00) in consideration for the Services provided by Smart Cart as described in the Master Services Agreement, payable in One (1) lump sum upon the execution of this Agreement.* The term of this Agreement is Twelve (12) months.

OR

□ Quarterly installment payments of Three hundred seventy five and 00/100 Dollars ($375.00) in consideration for the Services provided by Smart Cart as described in the Master Services Agreement, payable on the 15th day of each month.* The term of this Agreement is Twelve (12) months.

OR

□ (Seasonal) One thousand and 00/100 Dollars ($1,000.00) in consideration for the Services provided by Smart Cart as described in the Master Services Agreement, payable in One (1) lump sum upon the execution of this Agreement.* The term of this Agreement is eight (8) months.

OR

□ (Seasonal) Quarterly installment payments of Two hundred fifty and 00/100 Dollars ($250.00) in consideration for the Services provided by Smart Cart as described in the Master Services Agreement, payable on the 15th day of each month.* The term of this Agreement is eight (8) months.

*Applicable State sales and use tax applies

Copyright 2011 SmartCart Service Systems LLC.
All worldwide rights reserved.
Effective as of August 21, 2011