MASTER SERVICES AGREEMENT

This Master Services Agreement (this “Agreement”) is entered into by and between SmartBug Operating LLC, a Delaware limited liability company (“SmartBug”), having a mailing address of 3857 Birch Street, Suite 76, Newport Beach, CA 92660 and any Company that enters into a Statement of Work for services to be delivered by SmartBug (“Client”). This Agreement is effective as of the last signature date of any signed Exhibit and/or Statement of Work signed by Client (the “Effective Date”).

1. Services To Be Performed By SmartBug. SmartBug shall provide those services described in Exhibit A (the “Services”) which may include deliverables as further described in Exhibit A (the “Deliverables”). The Services and Deliverables resulting from SmartBug’s performance hereunder shall collectively be referred to herein as the “Work.” The parties may enter into an initial Statement of Work and any additional Statements of Work (each an “SOW”), which shall be sequentially labeled, beginning with Exhibit A-1 to this Agreement, as they deem appropriate. All SOWs signed by Client shall also be governed by this Agreement. Subject to Section 3 below, SmartBug will determine the method, details and means of performing the Services and creating the Deliverables. SmartBug shall set its own hours and schedule for performance of the Services, provided that if Client requests SmartBug’s availability at certain times (i.e., for meetings, travel, etc.) and gives reasonable advance notice for such requests, SmartBug shall use all commercially reasonable efforts to meet such scheduling requests. Client understands and agrees that SmartBug’s services are non-exclusive to Client and that SmartBug may provide other services, including services substantially similar to those provided under this Agreement, to other persons or entities, provided that SmartBug shall in no event violate any provision of this Agreement in its performance of any services.

2. Compensation. Client shall pay SmartBug the compensation set forth in Statements of Work to this Agreement (collectively, the “Fees”), in accordance with the payment terms set forth in the applicable Statement of Work. If not otherwise indicated on the applicable Statement of Work, payment shall be made by Client to SmartBug no later than thirty (30) days after the date set forth on an invoice for the Work. All payments are non-refundable. Invoices will be provided by SmartBug at the beginning of each month of the Term (as defined below). Notwithstanding the foregoing, if the parties decide to expand the scope of the Services outside that which is set forth on the applicable Statement of Work, the parties agree that any such additional services and corresponding additional fees shall be agreed upon by the parties in writing.

3. SmartBug’s Warranties. SmartBug represents and warrants that: (a) SmartBug has the right to enter into and prepare this Agreement and is not subject to any obligation which will or might prevent or interfere with SmartBug fully keeping and performing all of the agreements, covenants and conditions to be kept or performed hereunder; (b) SmartBug has not made nor will SmartBug make any agreement, commitment, grant or assignment, or do, or omit to do any act or thing which will or might interfere with or impair the complete enjoyment of the rights granted and the Work to be rendered to Client hereunder; (c) SmartBug has obtained all consents which may be necessary, including, without limitation, from persons rendering services or granting rights in connection with the Work, to enter into this Agreement and grant the rights hereunder granted, (d) except for the Fees and subject to Section 6 below, Client shall not be responsible for any charge, fee, royalty or other payment to any person or entity in connection with the Work (other than for expanded scope in Work which is agreed upon in writing), including any and all claims by any third party claiming payment for their services, (e)  the Work will be of the kind and quality described in the applicable Statement of Work and will be performed by qualified personnel, and (f) SmartBug shall comply with all applicable laws, regulations, ordinances, rules, and other legal and administrative requirements related to SmartBug’s provision of the Work.

4. Indemnification.

(a) SmartBug hereby indemnifies and holds harmless Client and its affiliates, and their respective officers, shareholders, directors, licensees, successors and assigns, and agents, from and against any and all third-party claims: (a) for actual or alleged infringement of any U.S. patent, copyright or trade mark based upon Client’s use of any Work provided under this Agreement, and/or (b) based on the gross negligence or intentional misconduct of SmartBug or any of its employees in the performance of the Services.

(b) Client hereby indemnifies and holds harmless SmartBug and its affiliates, and their respective officers, shareholders, directors, licensees, successors and assigns, and agents, from and against any and all third-party claims (a) based on any and all materials and intellectual property provided by Client (“Client Content”) used in the Work, including without limitation any violation of any third party intellectual property rights by the Client Content, and/or (b) based on the gross negligence or intentional misconduct of Client or any of its employees.

(c) Each party shall promptly notify the other of any claim for indemnification and the indemnifying party shall have the right to control the defense of such claim, provided that neither party may enter into a settlement which is adverse to the other party without the other party’s prior written consent, and the indemnified party shall have the right to participate at its own expense in the defense of any suit or proceeding through counsel of its own choosing.

5. Intellectual Property Rights. 

(a) Client has and retains all rights, including intellectual property rights, in Client’s pre-existing Proprietary Materials (including, without limitation, in the Client Content).  SmartBug acknowledges that it does not own Client’s Proprietary Materials and will acquire no right, title or interest in Client’s Proprietary Materials, except for such rights pursuant to a license, purchase or lease as may be expressly granted by Client to SmartBug in writing.  For purposes of this Agreement, “Proprietary Materials” means all copyrightable works of original authorship (including but not limited to computer programs, technical specifications, manuals, and business plans), ideas, inventions (whether patentable or not), know-how, processes, compilations of information, patented property, trademarks, service marks, trade secrets and other intellectual property.

(b)  SmartBug has and retains all rights, including intellectual property rights, in SmartBug’s Proprietary Materials  Client acknowledges that it does not own SmartBug’s Proprietary Materials and will acquire no right, title or interest in SmartBug’s Proprietary Materials, except for such rights pursuant to a license, purchase or lease as may be expressly granted by SmartBug to Client in writing.

(c) Subject to Section 5(b) above and subject to Client paying all Fees, all Work provided by SmartBug pursuant to this Agreement shall constitute a “work for hire” and Client will retain exclusive ownership in all Work created hereunder.

(d) Subject to Client paying all Fees, to the extent that ownership in the Work or any part thereof does not vest in Client as a work made for hire, SmartBug hereby assigns and transfers in whole to Client all right, title and interest in and to such Work. As such, Client shall own all right, title and interest in and to the Work and all elements or constituent parts thereof.

6. Expenses. Client shall be responsible for all costs and expenses, including travel expenses, incurred by SmartBug in connection with its creation of the Work, provided that any such expenses are previously approved in writing by Client. Notwithstanding the foregoing, SmartBug shall be responsible for all of its own costs of doing business.

7. Confidential Information & Non-Solicitation. 

(a) During the Term hereof and/or in the course of the party's performance hereunder, either party as applicable (the “Receiving Party”) may receive and otherwise be exposed to confidential and proprietary information relating to the other party’s (the “Disclosing Party”) business practices, strategies and technologies (collectively, “Confidential Information"). Such Information may include, but is not limited to; information supplied to the Receiving Party which should be reasonably understood to be confidential, regardless of whether it is marked with the legend “Confidential” or “Proprietary”, including; Disclosing Party’s marketing, financial, internal organization, employee and customer information; Disclosing Party’s technology, including, without limitation, discoveries, inventions, research and development efforts, processes, hardware/software design and maintenance tools, formulas, methods, product know-how and show-how, and all derivatives, improvements and enhancements to any of the above.  Confidential Information shall not include any information that: (i) is or subsequently becomes publicly available without Receiving Party’s (or its employees’) breach of any obligation owed to Disclosing Party; (ii) became available to Receiving Party on a non-confidential basis from a third party that is not known by Receiving Party at the time of disclosure to be bound by a confidentiality agreement with or subject to any obligation or duty of confidentiality to Disclosing Party; or (iii) is independently developed by Receiving Party without reliance on the Confidential Information.

(b) Receiving Party hereby warrants that it and its employees and agents, if any, will not disclose the Confidential Information of Disclosing Party to any third party without Disclosing Party’s prior written consent, except as necessary to fulfill its obligations under this Agreement. Receiving Party agrees that the Confidential Information will be used by Receiving Party solely in the course of its performance under this Agreement. Unless Receiving Party first obtains prior written authorization from Disclosing Party, such Confidential Information will be kept strictly confidential by Receiving Party and its employees and agents, if any, who will not duplicate, distribute, disclose or reveal any Confidential Information to any persons other than Receiving Party’s employees and agents who need to know such Confidential Information for purposes of this Agreement, and who, in any event, have written or professional obligations to keep such information confidential and to be bound by terms no less restrictive than those set forth in this Agreement. Receiving Party shall remain liable for any breaches of this Agreement by its employees or agents.

(c) Receiving Party agrees to abide by the determination of Disclosing Party that the Confidential Information furnished to it is confidential in nature and to take all reasonably necessary and appropriate steps to safeguard such Confidential Information from disclosure to any other person for any other purpose whatsoever (except as permitted herein).

(d) Upon expiration or termination of this Agreement, Receiving Party will promptly deliver to Disclosing Party all of the Confidential Information in any form whatsoever.

(e) During the term of this Agreement and for a period of one year thereafter, Client shall not employ or engage, or solicit for employment or engagement, any employee, independent contractor, consultant, agent or representative of SmartBug, who performed any Services hereunder. If the Client hires a SmartBug employee, agent, or contractor, during the term of this Agreement or during the one year period thereafter, Client agrees to pay a fee in an amount equal to the individual’s annual compensation for one full year payable to SmartBug within 30 days of the first date of employment.

(f) The parties agree not to make any statements, written, verbal and social media, or cause or encourage others to make any statements that defame or in any way disparage the personal or business reputation, practices or conduct of the other party, its employees, directors or officers.

8. Limitation of Damages. IN NO EVENT SHALL SMARTBUG'S TOTAL CUMULATIVE LIABILITY, INCLUDING ATTORNEYS' FEES, UNDER THIS AGREEMENT EXCEED THE FEES PAID TO SMARTBUG UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY OF ITS INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, BUSINESS OR ANY OTHER FINANCIAL LOSS, ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, OR THE BREACH OF ANY OF ITS PROVISIONS, WHETHER FOR BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABILITY), AND IRRESPECTIVE OF WHETHER THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE OR ANY REMEDY SPECIFIED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

9. Provision of Client Content; Approval of Work. Promptly upon execution of this Agreement, the parties agree to work together to prepare a timetable for the performance of the Work. Client understands and agrees that it must provide: (i) the Client Content, (ii) access to any and all relevant Client systems, and (iii) certain employees must make themselves available for consultation in order for SmartBug to be able to perform the Services and deliver the Deliverables. Client agrees to provide the Client Content and such consultation in a timely manner. For each Deliverable which requires Client’s approval, Client will evaluate and promptly notify SmartBug in writing (including e-mail) of its acceptance or if not accepted, of any changes requested. If Client does not expressly approve or not approve within 15 days, then such Deliverable shall be deemed approved. Client understands and agrees that: a) SmartBug shall rely on any written approval it receives as approval from an authorized representative of Client and b) any delay in such approval will delay the performance of the Services and completion of the Deliverables, if any. Client further agrees that any delay or failure by Client to timely provide any Client Content, consultation, approval of any Deliverable or agreement upon the Deliverable timetable shall in no way alter any Client obligation to make any and all payments set forth on Exhibit A.

10. Term and Termination.

(a) This Agreement will become effective on the Effective Date and shall remain in effect for an initial term of three (3) years (“Initial Term”). The Initial Term shall renew automatically for successive one (1) year terms (each a “Renewal Term”) unless either party notifies the other of non-renewal in writing at least sixty (60) days before expiration of the then-current term.  Notwithstanding the foregoing, this Agreement shall continue as to each particular Statement of Work until the term for that particular Statement of Work has expired or that particular Statement of Work has otherwise been terminated as provided in this Agreement. The Initial Term and any Renewal Term shall be collectively referred to as the “Term.”

(b) Should either party materially breach this Agreement, then the non-breaching party shall have the right to terminate this Agreement if such breach is not cured within fifteen (15) business days of the receipt by the breaching party of written notice thereof (e-mail notice to be sufficient).

(c) In the event of termination by Client for cause as set forth in subsection (b) above, Client shall pay all Fees owed for Services performed by SmartBug through the date of termination and then neither party shall have any further obligations under this Agreement.

(d) In the event of termination by SmartBug pursuant to subsection (b) above, all Fees owed for the remainder of the Term shall become immediately due and payable to SmartBug. Such termination shall be without limitation of any rights or remedies, all of which shall be expressly reserved.

(e) In the event of termination for any reason, subject to Client paying all Fees, SmartBug shall immediately deliver all Deliverables to Client in their most current form.

11. SmartBug Status. Any SmartBug employee is an independent contractor and not an employee, agent, joint venturer or partner of Client. Nothing in this Agreement shall be interpreted or construed to create or establish the relationship of employer and employee between Client and SmartBug or any employee or agent of SmartBug. Neither SmartBug nor any personnel engaged by SmartBug to perform services under this Agreement are employees of Client for state or federal tax purposes. Client shall not be obligated to (i) withhold FICA (Social Security) from SmartBug's payments, (ii) make state or federal unemployment insurance contributions on SmartBug's behalf, and (iii) withhold state or federal income tax from payments to SmartBug. Client shall not be responsible for making disability insurance contributions, or obtaining workers' compensation insurance, on behalf of SmartBug. SmartBug shall not enter into any contracts on behalf of or in the name of Client. SmartBug shall have no authority to bind Client to any third party in any manner, and any attempt to do so shall be void and shall be a material breach of this Agreement.

12. Notices. Any notices to be given hereunder by either party to the other shall be given either by personal delivery to an authorized representative, by overnight express carrier with delivery receipt tracking (e.g., Federal Express, UPS, etc.) or by facsimile transmission or e-mail to a designated e-mail address. Mailed notices shall be addressed to the parties at the addresses appearing in the first paragraph of this Agreement. Either party may change its notification address by written notice in accordance with this paragraph. All notices sent via delivery service will be deemed given as of the actual receipt, as verified by the delivery carrier or for facsimiles or e-mail, upon receipt.

13. Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

14. Governing Law; Jurisdiction. Client and SmartBug agree that any dispute concerning the construction or interpretation of this Agreement or the remedies for any breach hereof shall brought in a court situated in Orange County, California and shall be governed by the laws of the state of California, without giving effect to choice of law provisions. The prevailing party of any action shall be awarded reasonable attorneys’ fees. Client shall be responsible for collection costs.

15. Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach and no waiver will be effective unless made in writing.

16. Example of Work; Press Release. Client acknowledges that SmartBug may use examples of non-confidential Work created for Client on SmartBug's website or in other marketing collateral. Any press release, which the parties decide to release regarding this Agreement, shall be mutually agreeable to the parties. Notwithstanding the foregoing, SmartBug shall be permitted to utilize anonymous analytics data for the purpose of case studies and other published research.

17. Entire Agreement of the Parties. This Agreement supersedes any and all prior agreements, either oral or written, between the parties hereto with respect to the rendering of Services and Deliverables by SmartBug for Client and contains all the covenants and agreements between the parties with respect thereto. Each party acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by either party, or anyone acting on behalf of either party, which are not embodied herein. No amendment to this Agreement will be effective unless in a writing signed by a duly authorized representative of each party. The terms of any purchase order or invoice shall not operate to alter the terms of this Agreement unless embodied in a writing signed by a duly authorized representative of each party.

18. Assignment. Either party may assign this Agreement as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Except as provided herein, neither party may assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of the other party, and any attempted assignment or delegation without such consent will be void.

19. Miscellaneous. Sections 4, 5, 7, 8, 12-15, 17 and 19 shall survive the expiration or earlier termination of this Agreement and any SOW or Exhibit. Headings used in this Agreement are for convenience only and shall have no legal effect in its interpretation. This Agreement and any SOW or Exhibit may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree that the individual executing this Agreement or any SOW or Exhibit on behalf of such party is duly authorized to enter into this Agreement. Digital signatures shall be deemed as binding as original signatures.