bizM3 Private Label Service Agreement This Private Label Subscription Agreement ("Agreement") is entered into, effective (date)________________, by and between bizM3, Inc., a California Corporation (“bizM3”) and Client (“Client”). bizM3 and Client shall sometimes be referred to collectively in this Agreement as the “Parties.” RECITALS This Agreement shall take effect on the date of execution by Client. This Agreement applies to Client’s use of the bizM3 Mobile Advertising Software Platform and any related products and services available through http://www.bizm3.com (collectively the "Service"). NOW, THEREFORE, for and in consideration of the promises and mutual covenants, rights, and obligations herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the Parties hereto agree as follows: Term The term of this Agreement shall start on the Effective Date and shall end five (5) years from the Effective Date and shall renew annually thereafter unless terminated in writing at least 60 days prior to the expiration of the original five (5) year period or any annual period thereof. License Grant & Restrictions bizM3 hereby grants Client a non-exclusive, non-transferable right to use the Service, solely for Client’s own internal business purposes, subject to the terms and conditions of this Agreement. Client may not upload any content or data that is specifically designed to degrade, overload or stress any component of the Service offered by bizM3. During the term of this Agreement, Client shall not use, employ, engage or implement products provided by competitors of bizM3 and the Service. Client may not access or use the Service, without bizM3’s prior written consent, if Client is engaged in direct or indirect competition with bizM3. Client may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Page 1 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Phone: 877.44.bizM3 Web:bizm3.com Absent bizM3’s prior written consent, Client shall not; (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or any part of the software content in any way; (ii) modify or make derivative works based upon the Service or any part of the software content; (iii) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service; or (iv) engage in any activity with respect to the Service which may be deemed or interpreted as multi-level marketing. Client may use the Service only for its internal business purposes and shall not: (i) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material harmful to children or infringe third party privacy rights; (ii) use key words which infringe on third party intellectual property, are obscene, threatening, libelous or otherwise unlawful; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. bizM3 shall have the right to immediately cancel and terminate this Agreement, provided Client shall fail to comply with the terms of the license grant and restrictions provisions fifteen (15) days after Client’s' receipt of written notice specifying such non-compliance with the license grant and restrictions provisions. Client’s Responsibilities Client is responsible for all activity, ESPECIALLY WITH REGARD TO EMAIL AND SMS SPAMMING, occurring under its user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. Client shall: (i) notify bizM3 immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to bizM3 immediately and use reasonable efforts to stop immediately any copying or distribution of the software content that is known or suspected by you or your Users; and (iii) not impersonate another bizM3 user or provide false identity information to gain access to or use the Service. Account Information and Data Client does not own any data, information or material that it submits to the Service in the course of using the Service ("Customer Data"). Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. bizM3 shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. bizM3, from time to time, will monitor materials submitted by users to ensure the decency of the content. bizM3 reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without Page 2 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Phone: 877.44.bizM3 Web:bizm3.com limitation, non-payment. Upon termination for cause, Client’s right to access or use the Service including submitted materials immediately ceases, and bizM3 shall have no obligation to retain any data that is stored on the system. In any event, Client is responsible for backing up all "Customer Data" on its own computer or storage device. Intellectual Property Ownership bizM3 reserves all right, title and interest, including all related Intellectual Property Rights, the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Service, Technology or the Intellectual Property Rights owned by bizM3, including trademarks and logos. Client shall include the following language on all printed contract or informational flyers and materials displaying the name bizM3 or the bizM3 logo: bizM3 and the bizM3 logo are the property and trademarks of bizM3, Inc. They are being used pursuant to a non-exclusive license agreement. bizM3, Inc. and Client. are independent non-related entities. Charges and Payment of Fees Client shall pay all fees or charges in accordance with the fees, charges, and billing terms as set forth in exhibit “A”. The charges will be equal to the subscription fees for the current number of total User Accounts and Content Accounts. Payments may be made annually, monthly or as otherwise mutually agreed upon. bizM3 reserves the right to modify its fees and charges and to introduce new charges at any time. Billing and Renewal bizM3 charges and collects in advance for use of the Service. bizM3 will automatically renew and bill Client monthly or annually depending on the type of subscription. The renewal charge will be equal to the fee for the type of subscription of the account in accordance with Exhibit A, unless bizM3 has given at least 60 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. bizM3’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Client shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on bizM3’s income. Unless bizM3 in its discretion determines otherwise, all payments will be billed in U.S. dollars. If Client believes that its bill is incorrect, it must notify bizM3 in writing within 60 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. Page 3 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Phone: 877.44.bizM3 Web:bizm3.com Termination and Suspension of Account 1. bizM3 reserves the right to terminate this Agreement and Client’s access to the Service if Client’ account becomes delinquent for over 60 days. If Client or bizM3 initiates termination of this Agreement, Client will be obligated to pay the balance(s) due on accounts. bizM3 reserves the right to impose a reconnection fee in an amount equal to the actual cost, in the event Client is suspended and thereafter requests access to the Service. Client agrees and acknowledges that bizM3 has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 60 days or more delinquent. 2. If the Agreement is terminated or the number of accounts is reduced, the access to the accounts ceases immediately upon termination. bizM3 has no obligation to retain and make available the Customer Data to Client. Client is responsible for backing up Customer Data at all times. In the event this Agreement is terminated by bizM3, a refund will be made to you extrapolated evenly over the remaining time within 30 days. In the event that this Agreement is terminated by Client, refund will be made to Client extrapolated evenly over the remaining time within 30 days. Client must make a request for any refund or subscription issue to [email protected], stating the account number, user ID and the date of termination. The amount of refund will be calculated based on the number of months in service for that account times the monthly subscription fee. The total will then be subtracted from the yearly subscription fee and the remaining sum will be the amount of refund. 3. Any breach of Client' payment obligations or unauthorized use of the bizM3 Technology or Service will be deemed a material breach of this Agreement. bizM3, in its sole discretion, may, upon the expiration of three (3) days written notice to Client, terminate Client’ password, account or use of the Service. In addition, bizM3 may terminate a free account at any time in its sole discretion, provided bizM3 provides a thirty (30) day written notice. Client agrees and acknowledge that bizM3 has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 60 days of written notice of such breach. Indemnification Client shall indemnify and hold bizM3, it’s licensors and it’s subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of, in any way related to, or in connection with this Agreement and Client use of the Service. This indemnification shall include, but not be limited to, : (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Client of Client' representations and warranties; or (iii) a claim arising from the breach by Client or its Users of Page 4 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Phone: 877.44.bizM3 Web:bizm3.com this Agreement. Client shall not be required to indemnify bizM3 for claims based on bizM3’s sole negligence or willful conduct. bizM3 shall indemnify and hold Client and their parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by bizM3 of its representations or warranties. Disclaimer of Warranties bizM3 MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. bizM3 DOES NOT REPRESENT OR WARRANT THAT; (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY bizM3. Exclusion of Incidental, Consequential and Certain Other Damages TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL bizM3 BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IN THE EVENT OF Page 5 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Phone: 877.44.bizM3 Web:bizm3.com NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF bizM3 OR IT'S LICENSOR, AND EVEN IF bizM3 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Internet Delays bizM3’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. bizM3 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. Limitation of Liability IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. Local Laws and Export Control bizM3 and its licensors make no representation that the Service is appropriate or available for use in other locations. If Client uses the Service from outside the United States of America, Client shall be solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the content contrary to United States law is prohibited. None of the Service, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government for such purposes. Modification to Terms bizM3 reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service and mailing a revised Agreement to Client at the address listed below. Continued use of the Service after any such written modification of the Agreement shall constitute Client consent to such changes. General Client specifically agrees and acknowledges that Client has reviewed the terms in this Agreement. Client agrees to pay and be responsible for any and all sales taxes, use taxes, value added taxes and duties imposed by any jurisdiction as a result of the license granted to you, or of your use of the Service, pursuant to this Agreement. Page 6 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Phone: 877.44.bizM3 Web:bizm3.com This Agreement shall be governed by California law and controlling United States federal law, without regard to the conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Orange County, California. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Client and bizM3 as a result of this Agreement or use of the Service. The failure of bizM3 to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by bizM3 in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and bizM3 and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Notices Any notice required or permitted to be given hereunder shall be in writing and shall be effective upon personal delivery or upon three (3) days after deposit in the United States Mail, postage prepaid and addressed as follows: TO : Client Address: ________________________________ ________________________________ ________________________________ TO : bizM3 bizM3, Inc. 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Attention: Michael Teague With copy to: Page 7 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Phone: 877.44.bizM3 Web:bizm3.com Peter D. Nitschke, Esq. Nitschke Law Group 16520 Bake Parkway, Suite 105 Irvine, CA 92618 The foregoing addresses may be changed by written notice. Independent Counsel Each party acknowledges that it has been fully represented by its own independent legal counsel in connection herewith and hereby acknowledges having had ample time and adequate opportunity to consult same. All parties are advised and acknowledge having had adequate opportunity to consult independent tax counsel or a certified public accountant concerning the tax implications of this transaction. Corporate Authority If either party is a corporation, that party shall deliver to the other party within twenty (20) days after the acceptance of this Offer by Buyer, a certified copy of a resolution of its Board of Directors authorizing the execution of such Offers, and naming the officers that are authorized to execute the same on behalf of the corporation, if requested. Time of the Essence Time is of the essence in this Agreement. Exhibits Incorporated by Reference Exhibit A attached to this Agreement is incorporated by that reference into, and becomes an integral part of this Agreement just as if such Exhibit were set out in full in the text or body of this Agreement. Said Exhibit is set forth as follows: Exhibit A Pricing Schedule "bizM3" "Client" bizM3, Inc. A California Corporation Company Name: By: By: ____________________________ ____________________________ Its: ____________________________ Dated: ___________________________ ______________________________ Its: ______________________________ Dated: _____________________________ Page 8 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Phone: 877.44.bizM3 Web:bizm3.com Exhibit A. Pricing (choose one): Intro Private Label $499.00 One Time Licensing Aggregation Fee $50.00 Monthly Fee 3 Keywords Custom Private Label $5000.00 One Time Licensing Aggregation Fee $25.00 Monthly Fee 5 Keywords Page 9 2901 Pacific Coast Highway #350 Newport Beach, CA 92663 Phone: 877.44.bizM3 Web:bizm3.com