Services Agreement
This Services Agreement (this “Agreement”) is entered into this __ day of _____ 2019 (the “Effective Date”) by and between Support Local, LLC a Tennessee limited liability company (“Support Local”) and _______________________________ a [State + Business Type] (“Business”), each a “Party” and together the “Parties”.
RECITALS
WHEREAS, Support Local owns and operates a mobile application. (the “App”) that permits its users to scan receipts from participating businesses (each a “Patron”) on the App to contribute a portion of receipts spent by users at Patrons and subsequently scanned onto the App towards user selected charitable causes on the App (the “Receipts”);
WHEREAS, in return for contributing an agreed upon portion of proceeds Patrons receive certain information concerning users of the App that patronize and scan receipts to the App from each respective Patron and the opportunity to advertise directly to users on the App as set forth herein;
WHEREAS, Business desires to act as a participating business on the App and Support Local agrees to permit Business to appear on the App according to the terms and conditions set forth herein;
NOW THEREFORE, for good and valuable consideration the receipt and sufficiency of which is hereby acknowledged the Parties agree as follows:
Receipts. Business agrees to participate on the App as a Patron and contribute an amount equal to ________________________ percent (____%) of all Receipts from Business that are scanned by users of the App onto the App (the “Transaction Donations”).
Accounting, Payment. At the end of each calendar week during the Term, Support Local shall auto-draft and/or ACH the Transaction Donations from Business’s bank account for the Receipts from the preceding calendar week. Business agrees to review the invoice ledger of transactions on the App within two (2) calendar days (the “Review Period”). At any point during the Review Period Business may contest the amount of the Transaction Donations. Any Transaction Donations not contested within the Review Period are conclusively deemed as accepted and correct by Business. The Transaction Donations shall be paid without setoff, counterclaim, deduction or withholding. Any Transaction Donations not paid when due shall accrue interest at the lesser of: (i) eight percent (8%) per annum; or (ii) the maximum interest rate permitted by applicable law. Business agrees to provide reasonably requested documentation supporting its rejection of transactions on the invoice ledger upon request from Support Local. Support Local may, in its sole discretion, remove Business from the App if: (i) Business fails to provide the reasonably requested documentation; or (ii) upon receipt of said reasonably requested documentation Support Local determines, in Support Local’s sole discretion, that Business failed to approve valid Transaction Donations.
Remittance to Charitable Causes. Within ten (10) business days of the end of each calendar month Support Local agrees to remit sixty percent (60%) of all Transaction Donations to the charitable causes identified by the users of the App. Support Local shall retain the remaining forty percent (40%) of Transaction Donations.
Support Local Services. Support Local agrees to provide Business with the following (collectively, the “Services”):
Advertising Program. Support Local agrees to provide Business with access to advertise on the App in a substantially similar form and fashion to all other businesses on the App. Support Local may, from time to time and in Support Local’s sole discretion, establish a rewards program or similar initiative which would consist of Business receiving non-cash consideration in an amount proportional to the Receipts scanned onto the App with which to purchase advertising space on the App as permitted by Support Local from time to time and according to Support Locals then current advertising policies; and
Business Analytics. Once the number of Receipts scanned from Business equals or exceeds Support Local’s then current threshold (which as of the effective date is fifty (50)) Support Local agrees to provide blinded, aggregated data (the “Data”) to Business on the users that patronize Business and subsequently upload Receipts to the App.
Intellectual Property.
Ownership. No ownership in the Confidential Materials is transferred to Business (or any other person or entity) under this Agreement, other than as expressly described herein. Business acknowledges that the Confidential Materials constitute intellectual property and trade secrets of Support Local to be used by Business only as expressly permitted by this Agreement, and that the restrictions imposed upon Business by this Section 5 are necessary to protect the secrecy of such information and prevent injury and harm to Support Local. All intellectual property rights to any modifications, enhancements or derivative works of or to the App and/or Services, whether developed at Business’s request or otherwise, will be owned solely by Support Local. As between Business and Support Local, all intellectual property and other rights in the App and the Services produced or provided by Support Local under this Agreement shall be the property of Support Local. To the extent Business has any interest therein, Business hereby assigns, and upon its creation, automatically assigns to Support Local the ownership of such interest (and any other intellectual property therein) without any further consideration. Further, Support Local alone will own all right, title and interest in and to any and all feedback, suggestions, recommendations, ideas and/or innovations arising out of or in connection to the App, the Support Local’s website and/or the Services by Business and Business hereby assigns the same. As used within this Agreement, the term “Confidential Materials” means (i) the App and the Services or other information or materials related thereto, in tangible, verbal or electronic form, (ii) all information or materials disclosed by Support Local or its employees, agents, independent contractors or representatives to Business under this Agreement, and (iii) all information obtained through evaluation of the App or the Services.
Confidential Information. Support Local and Business shall each protect the Confidential Information of the disclosing party from unauthorized disclosure or unauthorized use by the receiving party. The receiving party will not, without the prior written consent of the disclosing party, disclose or use for its own benefit (other than as herein provided) the Confidential Information of the disclosing party, and will only disclose the Confidential Information it receives to those of its employees, independent contractors, attorneys or auditors who need to know such information and who are subject to binding confidentiality restrictions that are at least as restrictive as the terms of this Section 5. In no event shall the receiving party disclose any Confidential Information of the disclosing party to any direct or indirect competitor of the disclosing party. As used within this Agreement, “Confidential Information” means all information supplied by the disclosing party to the receiving party hereunder, including without limitation the Confidential Materials (in the case of disclosure by Support Local) and any trade secrets or any information whether or not marked as “confidential” or “proprietary” in tangible form, identified as “confidential” or “proprietary” if orally disclosed that the receiving party knew, or reasonably should have known under the circumstances that the information was confidential and/or proprietary.
Prohibited Actions. Business agrees, assents and covenants not to (i) reverse engineer, decompile, or disassemble the App, or any other aspect of Support Local’ technology, (ii) use, copy, create derivative works from, or modify the App, or any copy, adaptation, transcription, or merged portion thereof, (iii) sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer the App, or the Services in any manner to any third parties, or (iv) use the App for any purpose or in any manner other than as expressly set forth within this Agreement. Business agrees that it will use the App and Services for its legitimate business purposes only and will not use the App or Services to provide services to third parties through a service bureau or any other arrangement, other than as expressly permitted herein.
Trademarks. Business hereby grants Support Local a limited, royalty free, non-exclusive, non-transferable right and license to use the Business’s trademarks and service marks within the United States during the Term of this Agreement for (i) Support Local’s provision of the Services to Business and (ii) for Support Local’s marketing efforts. The foregoing license grant shall be subject to Business’s reasonable quality control mechanisms which may include without limitation use of identified appearance and color.
Content. Prior to running any advertisement on the App, Business agrees and acknowledges that Business must submit the contemplated advertisement to Support Local which may, in its sole discretion, decline to run the advertisement if it contains objectionable material as determined by Support Local in its sole discretion.
Data. Support Local and Business agree, assent and covenant that Support Local owns all Data collected, entered into the App or otherwise received, created or maintained through Business’s use of the App. The parties agree that the Data falls within the definition of Confidential Information and shall be treated as Confidential Information by Business in accordance with Section 4.b of this Agreement.
Limited License. Support Local hereby grants to Business during the Term a non-exclusive, royalty-free, limited, non-transferable, non-assignable right and license for internal purposes only to access and use the Data in the United States of America. The limited license granted in this Section 6.a is terminable as provided in Section 9.
Representations and Warranties.
Mutual Representations. Each party represents to the other that (i) this Agreement has been duly executed and delivered and constitutes a valid and binding Agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with the party’s execution, delivery, or performance of this Agreement; and (iii) the execution, delivery and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other Agreement to which it is a party or by which it is otherwise bound.
Support Location Representations. Support Local represents and warrants that: (i) it has the rights to grant the license to use the App and provide the Services as set forth in this Agreement without violating the rights of any third party; (ii) there is no actual or threatened suit by any third party of any alleged violation of such right by Support Local; (iii) to the extent it incorporates third party rights into the App or Services, it has obtained the rights from those third parties necessary to grant to Business the various license rights under this Agreement; and (iv) the App, and Services shall substantially comply with the functionality and performance criteria as set forth in this Agreement and the Documentation (as it exists as of the Effective Date).
App Representations and Warranties. The App is provided on an “AS IS” and “AS AVAILABLE” basis and SUPPORT LOCAL EXPRESSLY DISCLAIMS ALL WARRANTIES INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITH THE EXCEPTION OF THE LIMITED REPRESENTATION IN SECTION 7.B.IV OF THIS AGREEMENT.
Legal Compliance. Each party represents and warrants that its use and provision (as applicable) of the App, and Services will be conducted in accordance with all applicable federal, state and local laws and regulations (including all applicable export control statutes and regulations).
Term. This Agreement shall begin on the Effective Date and continue until terminated in accordance with this Agreement (the “Term”).
Termination. This Agreement may be terminated (a) either party at any time by providing thirty (30) days written notice of the notifying party’s intent to terminate this agreement; (b) by either party if the other party breaches this Agreement and such breach is not cured within ten (10) calendar days after the breaching party receives notice of the specific breach from the non-breaching party; (c) by either party immediately upon written notice to the other party if a voluntary proceeding by the other party or any involuntary proceeding against the other party is commenced under any federal or state bankruptcy or insolvency law; or (d) by Support Local immediately upon written notice to Business if one or more of the following events takes place: (i) Business fails to make any payment when due under this Agreement subject to a five (5) calendar day cure period; (ii) one of the events takes place as contemplated within Section 2 of this Agreement; or (iii) Business violates any applicable laws or regulations.
Effect of Termination. Upon the termination of this Agreement, (a) all licenses granted hereunder will immediately terminate; (b) Business will immediately cease use of the App; and (c) Business shall be responsible for all Transaction Donations incurred through the date of termination.
Confidentiality. Business agrees, assents and covenants that the terms of this Agreement constitute Confidential Information and are subject to the obligations set forth within Section 5.b.
Limitation on Damages. The parties expressly agree and acknowledge that in no event will Support Local be liable for, and Business hereby waives to the extent permitted by law, any consequential, incidental, indirect, special, or punitive damages or lost profits incurred by Business, associated with the App, the Services or the performance of this Agreement. Under no circumstances shall Support Local’s aggregate cumulative liability hereunder, whether in contract, tort (including, without limitation, negligence), or otherwise, exceed the total amount of fees actually paid to Support Local under this Agreement during the twelve (12) month period immediately prior to the date of such claim. Each provision providing for a limitation of liability or exclusion of damages has been knowingly agreed to by the parties to allocate risk between the parties, and the invalidity of any such provision will not affect the validity of any other provision.
Non-Disparagement. During the Term and for a period of two (2) years thereafter, Business agrees not to, and to use commercially reasonable efforts to cause its directors, officers, employees, agents, affiliates, subsidiaries and representatives not to directly or indirectly Disparage the App, Support Local and/or Support Local’s owners, officers, directors, employees, affiliates, subsidiaries and representatives (the “Support Local Parties”). As used within this Section 13 “Disparage” means to directly or indirectly make any statement (regardless of medium of communication whether written, oral or online) that could reasonably be expected to damage, impair or otherwise subject to scorn or ridicule the App and/or the Support Local Parties.
Indemnification. Business hereby agrees to indemnify Support Local and its affiliates and their respective employees, officers, directors, managers, agents and representatives any and all claims, actions, judgments, settlements, liabilities, damages, penalties, fees, fines, losses, costs, and expenses paid or incurred (including, without limitation, reasonable attorneys’ fees and all amounts paid in defense or settlement) (collectively, “Claims”) arising out of or based upon (a) any breach of this Agreement by Business; (b) any use of the App or the Services by Business that is not expressly permitted by this Agreement, or (c) any claims by any third party against Support Local relating to or arising out of Business’s use of Data. Support Local agrees to give Business prompt written notice of any such Claim and to furnish Business with reasonable assistance in the defense of such Claim at Business’s expense. Business shall not settle or compromise any Claim without Support Local’ prior written consent, which shall not be unreasonably withheld.
Miscellaneous.
Assignment. Business shall not assign its rights and obligations under this Agreement without the prior written consent of Support Local. Support Local may assign its rights and obligations to any party without restriction. The parties agree that this Agreement is binding on them and does not and will not be interpreted to benefit or create any rights of any third parties.
Drafting Conventions; Interpretation. The Parties have had an equal opportunity to participate in the drafting of this Agreement and the attached exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language.
Force Majeure. Nonperformance of either party will be excused if performance is rendered impossible by strike, fire, flood, earthquake, accident, acts of God, riot, terrorism, war, governmental interference, acts, orders or restrictions, shortages of labor, delay in delivery of material or services by suppliers, Internet or other network infrastructure outages, delays or other failures that are beyond the control of such party and are not caused by the negligence of such party.
Integration. This Agreement, including all exhibits (which are hereby incorporated by reference as though set forth fully herein and made a part of this Agreement), is the final and complete expression of all agreements between the Parties and supersedes all previous oral and written agreements regarding these matters. This Agreement may be changed only by a written agreement signed by both Parties. This Agreement may be executed in counterparts and delivered by facsimile or email, each of which will be deemed an original and all of which taken together will constitute but one and the same instrument.
Governing Law. The laws of the State of Tennessee govern this Agreement without giving effect to provisions related to conflict of law principles. The prevailing party in any lawsuit arising from or relating to this Agreement is entitled to recover its costs, including reasonable attorney fees. The Parties hereto irrevocably submits to the exclusive jurisdiction of the state courts of Maury County, Tennessee and the U.S. district court for the district located in Maury county, Tennessee and agrees to commence any action, suit or proceeding relating hereto only in such courts; provided that Support Local shall be entitled to pursue immediate and interim injunctive relief from any court of competent jurisdiction to restrain any unauthorized use by Business of the App, the Confidential Materials or Support Local’s Confidential Information.
Relationship of the Parties. The relationship of the Parties established by this Agreement is that of independent contractors. This Agreement will not be construed to give either party the power to (a) act as an agent, (b) direct or control the day-to-day activities of, or (c) bind or obligate the other party. Financial and other obligations associated with each party’s business are the sole responsibility of that Party.
Waiver. The waiver by either Party of any breach of this Agreement does not constitute a waiver of any other breach of this Agreement and will not be a waiver of the Party’s right to demand strict compliance in the future. If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.