Konexus Master Service Agreement

This Master Service Agreement (this “Agreement”) contains the terms and conditions that govern the access and use of the Service (as defined below) and is entered into by and between Konexus, Inc.(“Provider”) and the customer (“Customer”).

Provider and Customer are sometimes referred to herein individually as a “Party” and together as the “Parties.”  This Agreement is effective and Customer agrees to be bound by its terms when Customer either first accesses the Service or upon the first Order Effective Date (defined below), whichever occurs first (“Agreement Effective Date”).  If the person entering into this Agreement is doing so on behalf of a legal entity, such person represents that it has the legal authority to bind such legal entity to this Agreement. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the Parties hereby agree as follows:

‍1. Certain Defined Terms.  When capitalized in this Agreement, the following terms have the following meanings:
1.1.   “AUP” means Provider’s acceptable use policy, privacy policy and/or other standardized terms of use for the Service made available by Provider in writing from time to time (including via on-line access).
1.2.   “Claim” means any claim, allegation, suit, action or proceeding.
1.3.   “Confidential Information” means any information that is provided by one Party (or its Related Parties) (each, a “Disclosing Party”), to the other (or its Related Parties) (each, a “Receiving Party”) in connection with this Agreement that is (i) fixed in a tangible medium and that is conspicuously labeled as “Confidential” or with words of similar import; (ii) otherwise provided or disclosed (such as orally or in a visual presentation) by Disclosing Party that is clearly stated to be confidential or proprietary atthe time of disclosure; or (iii) that is otherwise obtained from Disclosing Party that reasonably should be presumed to be confidential given the nature of such information. Notwithstanding theforegoing, Provider’s Confidential Information shall be deemed to include: (A) this Agreement; (B) the Documentation; (C) all IP Rights in the Service andDocumentation; (D) the terms of each Sales Order, including pricing; and (E) account IDs, numbers, passwords and other Service-related information provided by Provider. Customer’s Confidential Information shall be deemed to include the Content and User Information. Confidential Information shall not include information that (1) is or becomes a part of the public domain through any means other than a breach by Receiving Party of its obligations under this Agreement; (2) is disclosed to Receiving Party on a non-confidential basis by an independent third party that is not, to Receiving Party’s actual knowledge,under an obligation of confidentiality to Disclosing Party; (3) is developed independently by Receiving Party without reference to or reliance on Disclosing Party’s Confidential Information; or (4) was in Receiving Party’s possession without obligations of confidentiality prior to receipt under this Agreement.
1.4.   “Content” means all information, data and other content contained within or as part of a Message.
1.5.   “Documentation” means the user guides, instruction and training manuals, and other documentation that Provider provides or otherwise makes available to Customer in connection with its use of the Service, as may be modified by Provider in its sole discretion and without Notice from time-to-time.
1.6.   “Force Majeure Event” means an event beyond the subject Party’s reasonable control, other than payment of monies due, including acts of God or government, fire, flood, earthquake, accident, storm, any labor dispute, failure of usual sources of supply, war, riot, insurrection, vandalism, or failure of public transmissions systems (such as the Internet or public switched telephone network).
1.7.   “Governmental Authority” means any governmental or quasi-governmental authority with jurisdiction or enforcement capability over the subject Party.
1.8.   “IP Rights” means all forms of intellectual property and proprietary rights and protections throughout the world, whether currently existing or hereafter developed or acquired and whether now known or hereafter recognized, including all right, title and interest arising under United States or foreign common or statutory Laws in and to all patents, copyrights, copyright registrations, Proprietary Indicia, trade secrets and moral rights, all goodwill associated with the foregoing.
1.9.   “Laws” means any applicable law, statute, ordinance, code, rule, regulation, order, judgment, decree, standard, requirement or procedure enacted, adopted, applied, enforced or followed by any Governmental Authority.
1.10. “Liabilities” means any and all losses, damages, demands, causes of action, judgments, assessments, deficiencies, expenses (including court costs and reasonable attorneys’ fees), physical damage to tangible personal property, bodily injuries, death and any other liabilities.
1.11. “Main Point of Contact” means the individual designated by Customer that is responsible for the administration of this Agreement with Provider.
1.12. “Message” means a transmission initiated by a User via the Service, regardless of whether actually received or responded to by a recipient.  Messages may be delivered via telephone, email, short message service (SMS), mobile push, or other methods specified in the applicable Sales Order.
1.13. “Notice” (and its correlative terms, such as Notify) means any notice, request, approval, authorization, consent, demand, correspondence or other communication required or permitted to be given or made pursuant to this Agreement.
1.14. “Proprietary Indicia” means trademarks, service marks, trade names, brand names, trade dress, logos, symbols, domain names, and any other methods used to identify a Party or its products or service.
1.15. “Related Party” means any parent, owner, officer, partner, affiliate, joint venturer, agent, representative, assignee, subsidiary, consultant, contractor, subcontractor or hired or leased employee or worker of the subject Party.
1.16. “User” means all individuals for whom Customer has provided contact information to Provider (which may be members of Customer’s organization or the general public), including individuals capable of sending or receiving Messages.
1.17. “User Information” means all User names, email addresses, phone numbers, mobile push information and any other contact information provided by Customer to Provider for purposes of using the Service.

2. Subscription to Service.  Subject to the terms of the Agreement (including payment under, and compliance with Sales Order), Provider shall provide the Service in accordance with the terms of each fully executed Sales Order.  Provider hereby grants to Customer a non-exclusive, non-transferable, non-assignable, limited license during the Term to use the Service (including accessing and using the software residing on Provider-controlled servers) for the sole purpose described in each Sales Order and in accordance with the Documentation.  Customer may use and copy (but not modify in any way) the Documentation for its internal business purposes only and as reasonably necessary to use the Service. Customer shall not, and Customer shall not allow any other person or entity to, (i) modify, alter, reverse engineer, decompile, translate, disassemble or otherwise attempt to derive the source code, algorithms, file formats or programming or interoperability interfaces of any software that is part of the Service by any means whatsoever; (ii) remove any Proprietary Indicia from the Documentation or any software that is part of the Service; (iii) allow use of any of the Documentation or software that is part of the Service for a “timesharing” arrangement, service bureau, or providing products or Service to any other person or entity; (iv) use the Service or Documentation for any purpose other than as expressly specified in the Sales Order (including combinations with other software, hardware and systems) and in compliance with the Documentation.  No rights in or to any software source or object code are granted under this Agreement.  Customer shall, and Customer shall cause its Related Parties to, comply with the terms of Provider’s AUP.

3. Order Renewal.  Unless the Agreement is terminated as provided for herein, or renegotiated in good faith prior to the renewal date,the Order(s) under this agreement will automatically renew for 1 year periods subject to payment of the corresponding Fees, at an increase of 5%, with either Party having the ability to provide the other Party with its intent not to renew the applicable Order(s) with at least 90 days written notice prior to the end of the then-current Subscription Period of such Order(s). For the avoidance of doubt, any discounts offered by Provider to Customer during a prior Subscription Period will not apply during any new or renewal Subscription Period unless specifically agreed-to in writing by the Parties.

4. U.S. Government Rights.  If Customer is a unit or agency of the United States Government, or if rights hereunder are acquired pursuant to a contract with any such unit or agency, the Service and Documentation are provided with Restricted Rights, and any use, duplication, or disclosure is subject to the restrictions as set forth in the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 subparagraph(c)(1)(ii), or the Commercial Computer Software -- Restricted Rights at CFR52.227-19, subparagraphs (c)(1) and (2), as applicable.  Manufacturer is Konexus, Inc. at the address stated at the head of this Agreement.

5. Export Administration.  The Service and Documentation may be subject to restrictions and controls imposed by the United States Export Administration Act, as amended. Customer shall comply with all applicable export control laws andregulations issued from time-to-time by the United States Department of Commerce (“DOC”) and similar agencies.  You represent that the Serviceand Documentation will not be sold to, transferred, or re-exported, directly, or indirectly, into any prohibited country or for any prohibited purpose without further compliance with the validated license requirements of the DOC and/or of other applicable United States government agencies.

6. Payment Terms; Taxes.  The prices, charges and fees for Service shall be set forth in each Sales Order.  Unless specified otherwise in a Sales Order, Service fees are payable annually in advance and shall be paid in full by Customer within 30 days after the date of invoice from Provider.  In no event shall Customer have the right to partial payment, holdback or set-off of amounts due under any invoice issued in accordance with a Sales Order.  All payments made by Customer are non-refundable unless otherwise specified in this Agreement.  Pricing for the Service does not include, and Customer is responsible for and shall pay, all taxes, duties, charges, fees and other amounts levied, assessed or imposed on Customer’s purchase and use of the Service, excluding only taxes based on Provider’s income.  Late payments automatically shall accrue a late fee of 1.5% per month. All amounts payable under this Agreement shall be in United StatesDollars.

7. ProviderWarranty.
7.1.   Provider warrants that while the corresponding paid-for Subscription Period is in effect, that the Service will perform substantially in accordance with the functions specified in the User Guide under normal use and circumstances,  Customer’s sole and exclusive remedy and Provider’s entire liability for a breach of this warranty shall be for Provider to use commercially reasonable efforts to modify the Service to substantiallyachieve in all respects the functionality described in the User Guide and if Provider is unable to restore such functionality, Customer shall be entitled to terminate the applicable Order and receive a pro-rated refund of the subscription fees paid to Provider for the corresponding remaining portion ofthe Subscription Period.

8.  Support Services.  Subject to payment of the corresponding Fees, Provider will provide the support services (“Support Services”) specified in the applicable Order.  Provider will provide a technical helpdesk to assist Customer with using the Service, understanding the Documentation, and analyzing and resolving error analysis caused by the Service.  Customer may contact the helpdesk via thetelephone and/or email information set forth in this Agreement and Providerwill use commercially reasonable efforts to respond to Customer issues within one business day.  Provider shall use commercially reasonable efforts to ensure that the Service are available fornormal use 24 hours per day, every day of the year.

9.  CustomerObligations.
9.1.    Current Main Point of Contact Information. Customer shall maintain and promptly provide Provider with current and updated contact information for its Main Point of Contact from time to timeduring the Term as it changes.
9.2.    Content and Messages. Customer is responsible for the security, quality, content and integrity of all Content and Messages sent using Customer’s account information, ID or password, regardless of whether stolen, hacked or otherwise compromised.  Customer immediately shall Notify Provider if any Customer account information, IDs, passwords or other Service information has been stolen, breached or otherwise compromised.  Customer shall not send any Message containing Content that (i) is defamatory, libelous, obscene, pornographic or harmful to minors; (ii) promotes violence, discrimination, illegal activities, gambling, alcoholic beverages, guns or tobacco; (iii) contains viruses, worms, traps, cancel-bots or any other harmful code or computer program designed to disrupt or hinder the functionality of any computer software, hardware or otherdevice or equipment; (iv) violates any person’s right to privacy; (v) infringes any third party’s IP Rights; (vi) is unethical, deceptive or misleading in any material way; (vii) violates any Laws, Provider’s AUP, or Customer’s acceptable use or privacy policies; or (viii) constitutes junk email, junk phone messages, spamming, marketing or any other unsolicited messages (commercial or otherwise).  

10.  IP Rights Ownership - Service. Provider shall own all right, title and interest in and to all IP Rights comprising, contained in, or used in connection with the Documentation and providing Service to Customer.  Nothing in this Agreement transfers any IP Rights ownership or use rights to Customer,except for the limited subscription and Proprietary Indicia licenses expressly granted in this Agreement.

11.  IP Rights Ownership - Content. Customer shall own all right, title and interest in and to all IP Rights comprising, contained in, or used in connection with Content.

12.   Indemnification.
12.1. By Provider.  Except to the extent arising out of the negligence or intentional misconduct of Customer, Provider will defend,indemnify, and hold harmless Customer and, as applicable, Customer’s Related Parties, from and against all Liabilities incurred by Customer or its Related Parties resulting from third party Claims based on (i) Provider’s provision of Service, including violations of Laws; (ii) the Service infringing or violating such third party’s IP Rights.
12.2. By Customer.  Except to the extent arising out of the negligence or intentional misconduct of Provider, Customer will defend, indemnify, and hold harmless Provider and, as applicable, Provider’s Related Parties, from and against all Liabilities incurred by Provider or its Related Parties resulting from third party Claims based on (i) Customer’s use of the Service outside of the permitted uses contained in a Sales Order and the Documentation; (ii) the Content or Message infringing or violating a third party’s IP Rights; (iii) use of the Service in a manner that violates Laws; (iv) instructions from Customer to allow Messages to be provided to blocked numbers; (v) combination of the Service with any other software, hardware or products or Service not provided by Provider (unless specified in a Sales Orderor Documentation).
12.3. Procedures.  A Party seeking defense and indemnificationunder this section (“Indemnitee”) promptly shall (i) notify the other Party (“Indemnitor”) of any Claim for which it is requesting indemnification and tender the defense; and (ii) provide all reasonably available facts, circumstances, documents and particulars of the Claim and reasonably assist where requested to enable Indemnitor to defend, settle, and indemnify for such Claim.  Indemnitor shall have sole control over such defense, investigation, and settlement negotiations, but shall not settle any Claim without first obtaining Indemnitee’s prior consent where the settlement of such Claim (1) results in any admission of guilt on the part of Indemnitee; (2) imposes any obligation or liability on Indemnitee; or (3) has a judicially binding effect on Indemnitee, in each case, other than monetary liabilities for which Indemnitee is indemnified by Indemnitor.  Indemnitor shall have no liabilities or obligation to Indemnitee in connection with (x) any Claims not promptly tendered to Indemnitor for defense in compliance with this section; provided that if Indemnitor provides a defense not withstanding such failure, then those Liabilities that could have been avoided, minimized, or otherwise mitigated had the Claims been promptly tendered shall be excluded from the indemnification obligation; (y) any attorneys’ fees or other costs or expenses incurred by Indemnitee in connection with a Claim (such as costs of investigation, verification, review, etc.); or (z) any settlements that Indemnitor does not approve.

13.  Default and Remedies.
Default.  The following shall constitute material breaches of this Agreement: (i) a party breaches or fails to meet or perform any material representation, warranty, covenant or other obligation contained in this Agreement and then fails to cure such matter within 45 days (or such other time period specified in this Agreement) after receiving Notice from the other party that details the breach in a manner sufficient to permit its cure, unless such breach is not reasonably curable within such period, in which case the breaching party shall not be deemed to be in breach so long as it has commenced a cure within such period and diligently pursues such cure to completion; (ii) a party becomes insolvent or a debt or in a bankruptcy or similar action or proceeding; (iii) Customer’s misuse of the Service or use of the Service in violation of Laws; or (iv) Customer fails to timely pay any invoices provided by Provider more than two times in any 12-month period or Customer becomes more than 30 days delinquent in its payment of Service fees.
Remedies.  Except as specifically provided otherwise in this Agreement, the non-defaulting party shall be entitled to seek all remedies available at Laws or in equity with respect to a breach under this Agreement by the defaulting party (including injunctive relief and specific performance incases where a breach is causing or would cause irreparable damage or where no adequate remedy at Laws is available), and such rights and remedies shall be cumulative.  If the defaulting party fails to cure a breach as provided in this Agreement, then the non-defaulting party may, in addition to all other available remedies, terminate this Agreement or the applicable Sales Order upon Notice to the defaulting party. 13.3. AdditionalProvider Actions.  Notwithstanding anythingto the contrary in this Agreement, Provider may block, suspend or throttleService (including Messages) (i) based on instructions from its carriers; (ii)to comply with Laws or avoid an imminent violation of Laws; (iii) if the amountof Customer’s Messaging traffic becomes excessive (based on an overallpercentage of traffic handled by Provider or in excess of the intended use ascontemplated by the Sales Order); or (iv) to avoid imminent damage, to or toreasonably insure the integrity and performance of, Provider’s system orService.

14.   Confidentiality and Publicity.
14.1. Use and Ownership of Confidential Information.  Receiving Party shall hold and maintain Confidential Information in the strictest confidence and in trust and shall not, without the prior consent of Disclosing Party, disclose any Confidential information to any other party or use any such Confidential information for its own benefit or for the benefit of another, except that Receiving Party may disclose Confidential Information to its Related Parties, financial advisors, financing sources, accountants, legal counsel, and other parties on a need-to-know basis in connection with the performance of this Agreement or the overall business operations of Receiving Party (e.g., mergers, acquisitions, public offerings, or similar events); provided that such recipients are legally obligated to Receiving Party to hold such Confidential Information in trust and confidence without further disclosure and that each Party shall be responsiblefor breaches of this Agreement by such recipients.  Each Party shall solely and exclusively ownits Confidential Information disclosed under this Agreement.  This Agreement shall constitute the Confidential Information of both Parties.
14.2. Permitted or Required Disclosures.  Notwithstanding the foregoing section, Receiving Party may disclose Confidential Information (i) if required by a Governmental Authority; (ii) if required by Laws; or (iii) in connection with the enforcement of this Agreement.  If a disclosure is to be made under this section, Receiving Party shall use commercially reasonable efforts to promptly Notify Disclosing Party (if permitted by Laws) prior to such disclosure so that Disclosing Party may seek aprotective order or other appropriate remedy and/or waive compliance with theterms of this section.  If a protective order or other remedy is not obtained, or Disclosing Party waives compliance with the provisions of this section, Receiving Party shall furnish only that portion of the Confidential Information as is required by Laws or otherwise necessary and, at the request and expense of Disclosing Party, to use reasonable efforts to obtain assurance that confidential treatment will be accorded such Confidential Information.
14.3. Unauthorized Disclosure; Remedies.  Receiving Party immediately shall Notify Disclosing Party of any actual, potential or threatened unauthorized access to, use and/or disclosure of any Confidential Information in the possession or control of Receiving Party and immediately and at its own expense investigate and take reasonable steps to identify, prevent and mitigate the effects of any such unauthorized disclosure.  Receiving Party promptly shall provide Disclosing Party with a reasonably detailed description of the incident, the Confidential Information accessed or disclosed, the identity of unauthorized recipient, and such other information as Disclosing Party reasonably may request concerning the unauthorized disclosure.  
14.4. Return of Confidential Information.  Upon the expiration or earlier termination ofthis Agreement for any reason, or upon the reasonable request of Disclosing Party, Receiving Party shall certify that it has destroyed all Confidential Information, together with any copies thereof, to Disclosing Party, provided that Receiving Party shall not be required to destroy any formal corporate records (e.g., minute books) that include or discuss any Confidential Information or any Confidential Information that is needed to maintain records required by Laws.
Publicity.  Except for informational releases intendedsolely for a Party’s internal distribution and except for disclosures requiredby Laws beyond the reasonable control of the Party making such disclosure, noParty shall issue any press release or public announcement or make any publicdisclosure (including promotional or marketing materials and regardless whetherin the form of news releases, advertising or solicitation materials, or blog orsocial media postings) regarding the existence or terms and conditions of thisAgreement, without the prior consent of the other Party.  Notwithstanding the foregoing, during theTerm, each Party shall be entitled to announce publicly and make businesspresentations disclosing that Provider and Customer have entered into a businessarrangement under which Provider will be providing its Service to Customer(without disclosing any further specifics of this Agreement).  Each Party hereby grants to the other alimited non-exclusive, non-transferable, non-assignable, limited license during the Term to use and display the other Party’s Proprietary Indicia for the solepurpose described in the foregoing sentence. Such license is revocable upon Notice from the granting Party andautomatically terminates at the end of the Term.  


16.   Notices.  Any notice or other communication under this Agreement given by any Party to any other Party will be in writing and will be effective upon delivery as follows: (a) if to Customer, (i) when delivered via registered mail, return receipt requested, to the address specified in an Order; or (ii) when sent via email to the email address specified in an Order or otherwise on record for Customer; and (b) if to Provider, when sent via email to updates@konexus.com, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Konexus, Inc. 500 E Shore Dr, Suite 240, Eagle, ID 83616. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement.  

17.  Assignment and Subcontracting.  Customer shall not assign any of its rights or delegate any of its duties under this Agreement or any Sales Order without Provider’s prior consent.  Any assignment in violation of this Agreement shall be voidable at Provider’s election.  Notwithstanding the foregoing, either Party may assign this Agreement or any Sales Order for financing purposes or to any direct or indirect successor to the business of the assigning party as the result of any merger, consolidation, relocation, reorganization or operation of Laws.  Provider may use subcontractors to perform its obligations under this Agreement, but such use shall not release Provider from its obligations under this Agreement.  Provider may exercise any of its rights or remedies and perform any of its duties or obligations under this Agreement or any Sales Order by itself or through any affiliate in conformity with the terms and conditions of this Agreement.

18.  Contractual Relationship.  The Parties are entering into this Agreement as independent contracting parties. Neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party.  This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party.  

19.  Force Majeure Events. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (a) provides the other Party with prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.

20.  Compliance with Laws; Governing Laws. This Agreement shall be subject to, and in the performance of their respective obligations under this Agreement the Parties shall comply with, all Laws and such compliance shall be deemed not to constitute a breach of this Agreement.  Unless otherwise specified, nothing in this Agreement shall operate as a waiver of a party’s rights under all Laws.  This Agreement shall be governed by the Laws of the state of Idaho other than such Laws that would result in the application of the laws of a jurisdiction other than such state.  The Parties hereby submit to the in personam jurisdiction of such state and waive any objection to improper venue in the applicable federal and state courts located there.

21.  No Third-Party Beneficiaries.  This Agreement constitutes an agreement solely among the Parties, and is not intended to and will not confer any rights, remedies, obligations or liabilities, legal or equitable, on any person other than the Parties and their respective permitted successors or assigns, or otherwise constitute any person or entity a third party beneficiary under or by reason of this Agreement.

22.  Severability.  If any portion of this Agreement is rendered invalid or otherwise unenforceable under Laws or by a Governmental Authority, then the remainder of this Agreement will continue in full force unless such continuance will deprive one of the Parties of a material benefit hereunder.  In such event, the Party that has been deprived of such material benefit may notify the other, and the Parties promptly thereafter shall use commercially reasonable efforts to replace or modify the invalid or unenforceable provision with a provision that, to the extent not prohibited by Laws, achieves the purposes intended under the invalid or unenforceable provision.

23.  Enforcement Costs.  If either party sues or brings any other type of enforcement action in connection with this Agreement, then the prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs in connection with such enforcement.

24.  Survival.  The provisions of sections 2, 6, 7, 11, 12 13 (for a period of six months), 15, 16, 17, 20, 24 and 25 of this Attachment shall survive the termination or expiration of this Agreement.

25.  Further Assurances.  Each Party shall, at the request of the other, execute, acknowledge (if appropriate) and deliver additional documents, and do such other acts, as reasonably may be requested bythe other, to reflect the terms and carry out the purpose of this Agreement.

26.  Counterparts and Facsimile Signatures. The Agreement and each Sales Order may be executed in counterparts.  Exact copies and facsimiles or original signatures shall have the same force and effect as original signatures.