1. INTERPRETATION
    1. Definitions. Unless otherwise defined, capitalized terms used in this Agreement or any Appendix have the following meanings:

      1. Agreement” means this Services Agreement including its cover page, these General Terms and Conditions and all Appendices attached hereto;
      2. Claim” means any claim, action, suit, litigation or arbitration arising out of or relating to this Agreement, regardless of whether such claim, action, suit, litigation or arbitration (i) relates in any way to the Software, any Content, and any Services, or (ii) is brought pursuant to the terms of this Agreement or otherwise at law or in equity, and (A) any final award of an arbitrator, from which no appeals can be or have been filed, relating thereto, (B) any final award of a judgement of a court of competent jurisdiction, from which no appeals can be or have been filed, relating thereto or (C) any settlement or compromise relating thereto, or any combination thereof;
      3. Confidential Information” means any information or data (whether oral, written, electronic or otherwise) related to, owned by, controlled by or subject to confidentiality obligations of a party, that is valuable to such party and not generally known or readily available to the other party. Confidential Information does not include information or data to the extent such information or data: (i) has become generally known to the public through no act of the receiving party; (ii) has been rightfully obtained by the receiving party from a third party who had a lawful right to disclose such information to it; or (ii) the receiving party can demonstrate was independently developed by the receiving party without use, directly or indirectly, of any of the other party’s Confidential Information.
      4. Content” means text, images, photographs, slides, graphics, style sheets, logos, photographs, videos, sound, animations, spreadsheets, surveys, data, databases, information, music or other similar materials;
      5. Data” means all data owned or collected by the Client or a User that is provided to Tagga or otherwise used as part of the Services;
      6. “Effective Date” has the meaning set forth on the cover page of this Agreement.
      7. Fees” means all fees for the provision of the Software Services and/or Professional Services;
      8. Loss” means any and all loss, liability or damage resulting from or arising out of any Claim, including the reasonable professional costs and expenses incurred as a result of that Claim and all interest incurred in connection therewith, but excluding any loss, liability, damage, interest or professional cost and expense that is excluded by the terms of this Agreement;
      9. Person” means any individual (including employees or independent contractors), corporation, partnership, trustee, trust or unincorporated association, joint venture, syndicate, sole proprietorship, executor, administrator, or other legal representatives, regulatory body, or agency, government, governmental agency, authority or entity, however designated or constituted;
      10. Software” or “Platform” means the application for campaign management as a service delivered over the internet software owned or licensed by Tagga that is used in connection with and/or for providing some or all of the Services, including without limitation all upgrades, updates, modifications and enhancements thereto or derivative works therefrom incorporated by Tagga into the Software made available to its customers;
      11. Software Services” means those services described in the Statement of Work whereby Tagga provides and maintains access by Client and Users to the Software;
      12. Professional Services” means the professional services described in the Statement of Work to be provided by Tagga to Client in connection with the development, configuration, hosting, and program maintenance of its campaign management marketing programs on the Software or otherwise;
      13. Statement of Work” means the portion of the cover page identified as “Statement of Work” which specifies the Services to be provided by Tagga to Client, the associated Fees, and the tasks and responsibilities of Client pursuant to this Agreement, and includes such other Statements of Work as may be executed by the parties from time to time which reference this Agreement;
      14. “Services” means the Software Services and the Professional Services, as applicable, acquired by the Client pursuant to this Agreement;
      15. Term” shall have the meaning ascribed thereto in Section 8 of these General Terms and Conditions;
      16. User” means any Person that has been designated by the Client to access or use the Software, including without limitation all administrative users; and
    2. Order of Precedence. In the event of any conflict or inconsistency, unless otherwise specified herein or in the Statement of Work, the following order of precedence will apply: (a) these General Terms and Conditions; (b) then the Statement of Work and (c) then any Appendix hereto.
    3. Headings and Division. The headings used herein and the division of this Agreement into Articles, Sections and Subsections are for convenience of reference only and will not affect the interpretation hereof.
    4. Currency. Unless otherwise indicated, all dollar amounts referred to in the Agreement are in U.S. funds.
  2. GENERAL OBLIGATIONS AND RESPONSIBILITIES
    1. Offer of Software and Services. Tagga shall provide access to and use of the Software Services and shall provide the Professional Services to the Client, each as set out in the Statement of Work.
    2. Client’s General Obligations and Responsibilities. The Client shall: (a) provide such Client information and data as is reasonably necessary to enable Tagga to perform its obligations, including any Data or Content and any other information designated in the Statement of Work as being the responsibility of the Client; (b) perform such tasks and obligations designated in the Statement of Work as being the responsibility of the Client; and (c) provide all resources as Tagga may reasonably request as required to perform the Services. The Client acknowledges and agrees that Tagga will have no liability for any failure to perform its obligations under this Agreement in a timely manner to the extent such failure is due to the Client not performing its obligations in a timely manner. The Client agrees to adhere to the Mobile Marketing Association’s best practices guidelines (http://www.mmaglobal.com/bestpractices.pdf) including the inclusion of the phrase “Standard Data and Message rates may apply” when promoting the use of the short code 82442 for any marketing purposes. Acceptable variations of this phrase include, Msg&data rates may apply, Msg&data rates may aply. Failure to do so will result in immediate cancelation of this agreement.
    3. Compliance with Laws. The Client will comply with all applicable laws, including those with respect to the performance of this Agreement, and the collection, export, use and storage of all Client Content and Data.
    4. Designation of Users. Subject to and in accordance with the Statement of Work, the Client will designate all authorized Users on the Software and assign their respective access and use privileges. The Client shall cause all Users to comply with the terms of this Agreement. The Client will be solely liable for all actions and omissions of Users, and for all financial and legal obligations created by a User designated by the Client.
  3. FEES AND PAYMENT TERMS
    1. Fees. The Client will pay the Fees set forth in the Services and Fees for the Software Services and/or for the Professional Services, all in the amounts and at the times specified in the Statement of Work.
    2. Expenses. The Client will reimburse Tagga for all out-of-pocket expenses incurred by Tagga in the performance of its obligations under this Agreement.
    3. Taxes. All sales, use or goods and services taxes, customs duties, withholding taxes or similar levies of any kind arising with respect to the Software Services or any Professional Services are the sole responsibility of and will be paid by the Client without deduction from the amounts owing to Tagga under this Agreement.
    4. Payment Terms. Except as otherwise specified in the Statement of Work, Tagga will invoice the Client for all Fees and the Client will pay all Tagga invoices within 30 days after its receipt thereof. Except as otherwise expressly provided in this Agreement, all monies paid by the Client under this Agreement are not subject to refund or credit of any kind.
    5. Late Payment. If the Client fails to pay any undisputed amount payable under this Agreement within the time limited therefor, then the amount of such late payment will incur interest at the rate of 1.5% per month (19.56% per annum) for each calendar month (or portion thereof) during which it remains unpaid.
  4. PROVISION OF SERVICES
    1. Software Hosting Services. Subject to the terms and conditions of this Agreement and the Statement of Work, Tagga will provide the Software Services in accordance with the service level commitments set forth at Exhibit A of this Agreement. The parties hereby agree that Client’s sole and exclusive remedy for any material breach of such service level commitments by Tagga shall be termination of this Agreement in accordance with the terms hereof.
    2. Right To Subcontract. Tagga will have the right to engage the services of third party contractors to perform any Services on its behalf without the prior consent of the Client, provided that Tagga will remain primarily responsible for the performance of all such Services.
  5. REPRESENTATIONS AND WARRANTIES
    1. Representations, Warranties and Covenants – Tagga. Tagga hereby represents, warrants and covenants to the Client as follows:

      • Due Execution. This Agreement has been duly and validly executed and delivered by Tagga and is a valid and legally binding obligation of Tagga enforceable against it in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency and other laws affecting creditors’ rights generally and to general principles of equity.
      • Right to License. Tagga has the right to license the Software to the Client in the manner provided in this Agreement.
      • Professional Manner. Tagga warrants that it will perform the Professional Services in a professional manner, using qualified personnel and in accordance with the terms of this Agreement, including without limitation the Statement of Work. For all Professional Services for which there is no specific acceptance procedure set out in the Statement of Work, the Client must report any deficiencies in such Professional Services to Tagga in writing within 10 days after the performance of such Professional Services. If the Client claims a deficiency within such 10 day period, then Tagga will, as the Client’s sole remedy for such breach, promptly and at Tagga’s own expense re-perform the deficient Professional Services as warranted by this Subsection.
    2. Representations, Warranties and Covenants – Client. The Client hereby represents, warrants and covenants to Tagga as follows:

      • Due Execution. This Agreement has been duly and validly executed and delivered by the Client and is a valid and legally binding obligation of the Client enforceable against it in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency and other laws affecting creditors’ rights generally and to general principles of equity.
      • Authority for Content. The Client owns or otherwise has the necessary rights to produce, display, distribute and/or exploit all Data and Client Content on the Software or to utilize such Data and Client Content as part of any Professional Services to be performed by Tagga. The Client has obtained or shall obtain all necessary consents for the collection, export, use and storage of all Data and/or Client Content.
      • No Infringement. No Client Content or Data infringes upon or violates the intellectual property rights of any Person.
  6. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY; INDEMNITY
    1. Software Services and Professional Services. The following terms and conditions shall apply with respect to any professional services provided by Tagga:

      • Disclaimer of warranty. Except for any express representations and warranties made in this agreement, Tagga makes no representation or warranty of any kind including any warranty of merchantability or fitness for any particular purpose regarding any professional service or deliverable or any other product provided by Tagga or delivered to client under this agreement.
      • Limitation of liability. In no event shall Tagga be liable for any claims made by client or any third party for any special, indirect, incidental, or consequential damages including negligence or breach of contract, including loss of business opportunities, profits or revenues, whether or not the possibility of such damages or loss of opportunities, profits or revenues has been disclosed to Tagga in advance or could have been reasonably foreseen by Tagga. Tagga’s liability for any and all damages shall not, in any event, in aggregate exceed the total fees actually paid to Tagga under the Statement of Work for the specific professional service that is the subject of the claim.
    2. Indemnity by Client. In addition to Client’s other responsibilities and indemnification obligations under this Agreement, the Client will defend, indemnify and hold harmless Tagga and its affiliates, directors, officers, contractors, employees or agents from and against any and all Loss relating to:

      • any Claim arising from or relating to any breach of this Agreement caused by any act or omission of the Client or any User;
      • any Claim arising from or relating to any misrepresentation or breach of warranty on the part of the Client contained in this Agreement;
      • any Claim that may be advanced by any User or any other third party relating in any way to this Agreement, including without limitation the Services and the Statement of Work, including with respect to Client Content and Data; and
      • any Claim for damages by a Person that any Client Content, Data, Client Confidential Information or any other materials provided to Tagga infringe the intellectual property rights of such Person.
  7. PROPRIETARY RIGHTS
    1. Tagga Software and Materials. The Client acknowledges and agrees that the Software and all modifications, adaptations and derivative works of the Software, and any related developments, documentation or materials, are and remain the sole property of Tagga, that Tagga owns all intellectual property rights associated with them, and that Client acquires no right or title to them, except as expressly provided in this Agreement.
    2. Ownership of Confidential Information. All Confidential Information disclosed by one party to the other party is and will remain the sole and exclusive property of the disclosing party or its licensors.
    3. Retained Rights. Tagga is free to use and incorporate into its products and services any ideas, know-how, and/or techniques that are inherently disclosed to Tagga in the course of Tagga’s provision of the Services or are developed in the performance of the Services. Nothing in this Agreement will, or is intended to, limit Tagga’s ability to develop or enhance its products and services in any manner whatsoever, including use of residual knowledge gained as a result of the disclosure by Customer of Confidential Information in connection with this Agreement, provided Tagga does not disclose or otherwise use or make available any Client Confidential Information.
  8. TERM AND TERMINATION
    1. Term. Unless otherwise set forth in the Statement of Work, this Agreement shall commence on the Effective Date and shall have a term of one (1) year (the “Term”), unless earlier terminated in accordance with the terms hereof.
    2. Termination for Cause. Either party may terminate this Agreement for cause in the event that any material breach hereof by the other party remains uncured thirty (30) days following notice thereof. Notwithstanding the foregoing, either party may immediately terminate this Agreement for breaches by the other party of the confidentiality obligations or intellectual property right representations and warranties set forth herein, or in the event of unauthorized assignment of this Agreement by the other party.
    3. Obligations Upon Termination. In addition to any other obligations of the parties upon termination specified in this Agreement, upon any termination of this Agreement, each party will cooperate with the other in effecting an orderly transition under this Agreement and, in particular, the Client will (i) immediately pay all amounts owing to Tagga under this Agreement; and (ii) return all documentation and materials supplied by Tagga to the Client, including all Tagga Confidential Information.
    4. Survival. The provisions of Articles 1, 5, 6, 7, 8, 9, and 10, the terms and conditions of the Term of Service which are expressly designated to survive termination will survive any termination of this Agreement.
  9. CONFIDENTIALITY
    1. Confidential Information. In connection with the performance of their respective obligations under this Agreement, each party (“Owner”) may disclose certain of its Confidential Information to the other party (“Recipient”) and its agents, employees, subcontractors and representatives, including technical and legal advisers (collectively, “Representatives“).
    2. Protection and Nondisclosure. Recipient will use Owner’s Confidential Information only as necessary in connection with performance of its obligations hereunder and will not disclose such Confidential Information to any person, other than its Representatives who need to know such Information, who have been informed of the confidential nature of such Confidential Information and are bound by a written obligation of confidentiality to Recipient no less strict than the obligations set forth in this Section 9. In protecting the Owner’s Confidential Information, Recipient will use at least the greater of: (a) the same degree of care it employs to avoid unauthorized disclosure or publication of its own Confidential Information, and (b) reasonable care. Recipient will be responsible for any use or disclosure of Owner’s Confidential Information by Recipient’s Representatives.
    3. Disclosures Required by Law. If Recipient is legally required by a competent governmental authority to disclose any of Owner’s Confidential Information, then Recipient will, if legally permissible, give prompt written notice to Owner that affords Owner the opportunity to seek a protective order or other remedy, and Recipient may then furnish only that portion of the Confidential Information necessary to comply with the legal requirement.
  10. GENERAL
    1. Force Majeure. Neither party will be responsible or liable in any way for any delays in or suspension of performance of its obligations under this Agreement caused by: (a) acts of God; (b) restrictions, regulations or orders of any governmental authority or agency or subdivision thereof or delays caused by such authorities or agencies; (c) strikes or labour disputes; (d) fires or other loss of its facilities; (e) breach by suppliers of supply agreements; (f) utility, communication or transportation delays or failures (including failures of the Internet or hosting service provider); (g) acts of war (whether declared or undeclared), terrorism, sabotage or the like; or (h) any other causes beyond the reasonable control, and not the result of the fault or neglect, of such party, provided that in no event shall lack of financing or credit be deemed beyond the reasonable control of a party (each a “Force Majeure Event”).
    2. Further Assurances. Each of the parties will from time to time promptly and duly execute and deliver all documents and take such action as may be necessary or desirable in order to effectively carry out the intent and purposes of this Agreement.
    3. Severability. If any provision of this Agreement is held to be unenforceable, then such provision will be deleted from this Agreement and the remaining provisions will continue in full force and effect. The parties will in good faith negotiate a mutually acceptable and enforceable substitute for the unenforceable provision, which substitute will be as consistent as possible with the original intent of the parties.
    4. Entire Agreement. With respect to the subject matter hereof, this Agreement, including without limitation the Exhibits hereto, constitutes the entire agreement between the parties and replaces and supersedes all prior agreements, letters of intent, proposals, understandings and communications between the parties, oral or written.
    5. Governing Law. This Agreement will in all respects be governed exclusively by and construed in accordance with the laws of the Province of British Columbia, except that British Columbia’s choice of law rules will not be invoked for the purposes of applying the laws of another jurisdiction. Each party hereby agrees to submit to the exclusive jurisdiction of the courts in Vancouver, British Columbia with respect to any claim, proceeding or action relating to or otherwise arising out of this Agreement.
    6. No Waiver. The failure of either party to insist upon strict performance of any of the terms and conditions herein will not be deemed a waiver of any rights or remedies that either party has and will not be deemed a waiver of any subsequent default of the terms and conditions hereof.
    7. Amendment. No provision of this Agreement may be changed, modified or amended from time to time unless with the express written agreement of the parties executed by their authorized representatives.
    8. Assignment. Neither party may assign its rights or obligations under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement and/or its rights and obligations hereunder to an acquirer of all or substantially of its assets or to an affiliate of such party and Tagga may contract with a third party for that third party to perform some or all of Tagga’s obligations under this Agreement.
    9. Equitable Remedies. In addition to and without limiting any other rights and remedies available to each party, nothing contained herein shall restrict either party from obtaining injunctive or other equitable relief from a court of competent jurisdiction.
    10. Notices. Any notices permitted or required under this Agreement must be in writing and are effective on the date received (unless the notice specifies a later date). Notices may be sent to the address set forth on the first page of this Agreement or at such other address of which a party may from time to time give notice in accordance with this subsection.
    11. Enurement. This Agreement will enure to the benefit of and be binding upon the parties and their respective successors and assigns.
    12. Counterparts. This Agreement may be executed by digital contract, facsimile transmission and in counterpart, each of which, when so executed, will be deemed to be an original copy hereof, and all such counterparts together will constitute but one single agreement.
    13. Independent Contractors. The performance by Tagga of its obligations under this Agreement shall be that of an independent contractor and nothing herein contained shall create or imply an agency relationship between the Parties, nor shall this Agreement be deemed to constitute a joint venture, franchise or partnership between the parties hereto.