APPLICATION SERVICE PROVIDER AGREEMENT

This APPLICATION SERVICE PROVIDER AGREEMENT (this “Agreement”) is entered into as of the last date shown below (the “Effective Date”) by and between Move Happy, LLC. (“Provider”), and the undersigned User (“User”) (collectively the “Parties” and each individually a “Party”).

RECITALS

WHEREAS Provider is a provider of a logistics management system for the home and business moving and temporary storage business (the “System”) as set forth and further identified in Exhibit A to this Agreement; and

WHEREAS User desires, and Provider has agreed to provide User with, certain services with respect to Provider’s System;

NOW THEREFORE, in consideration of the foregoing and of the mutual covenants, agreements, and conditions hereafter set forth, and for other good, valuable, and binding consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

1. Obligations.

1. Provider Obligations. In accordance with the terms and conditions of this Agreement, Provider agrees to provide User with the following services (the “Services”):

1. Host and provide User with access to the System; and

2. Provide User with one (1) hours setup and training assistance pertaining to the use of the System, provided that (i) User will be responsible for reimbursing to Provider all costs and travel expenses associated with any requested on-site training and (ii) Provider will not be responsible for any training related to use of content from third-party content providers. 

2. User Obligations.  User shall secure appropriate rights to any content from third-party content providers.  Any failure by User to secure such rights shall constitute a material breach of this Agreement.

2. Limitations.  

1. User Responsibility.  User shall have the right to identify and authorize the number of end users to access and use the System as listed on Exhibit A.  However, during the term of this Agreement, User is solely responsible for its end users’ use of the System and shall bear sole responsibility for any use made of the content or data contained therein. Additional fees may apply for additional users.

2. Reseller.  The Parties hereby agree that nothing in this Agreement is to be construed as granting User the right or license to market, sell, resell, license or assign the Services or System.

3. Rights Granted - All services are provided to the user on a non-exclusive and non-transferable basis. All integration and features added at the request of the user will become the intellectual property of the Provider.

3. Term and Termination.

1. Term.  The term of this Agreement shall be for the period of time set forth on Exhibit A.

2. Termination.  Without prejudice to any other rights or remedies at law, equity, or otherwise of the Party so terminating, a Party (the “Terminating Party”) may terminate this Agreement by giving thirty (30) day’s notice to the other Party.

3. Obligations Upon Termination.  Within thirty (30) days after termination, each Party shall return or destroy all of the other Party’s Confidential Information (defined later herein) in each Party’s possession or control in accordance with Section 6.5 herein.

4. Fees.

1. Accrual.  Fees pertaining to services provided under this Agreement shall begin to accrue as of the Effective Date of this Agreement.

2. Monthly Service Fees.  User agrees to pay Provider a Monthly Service Fee in the amount as set forth on Exhibit A.  User agrees to pay a one-time set up fee as set forth on Exhibit A.  The initial payment shall be due on the first day of use of the Services and, thereafter, on the anniversary date of each such payment for the Term of this Agreement.  Provider may adjust the Monthly Service Fee by providing ninety (90) days prior notice to User.

3. Late Fees.  Any payments due to Provider that remain unpaid for more than thirty (30) days after the said payment is due shall incur a late fee equal to the lesser of either one-and-one-half percent (1.5%) of the payment per each month past due or the maximum amount allowed by law.

4. Taxes.  Any applicable local, state, or federal taxes shall be the sole responsibility of User.

5. Remit Address.  User shall remit all payments by auto pay credit card, or such other place as Provider notifies User in writing.

5. Publicity.  The Parties hereby agree that each Party may issue one or more press or publicity releases during the term of this Agreement.  Said press releases may include factual information regarding the existence of this Agreement and the business relationship between the Parties provided that the terms and conditions of this Agreement, including fees and other pricing information, are not disclosed and are treated as Confidential Information in accordance with Section 6 of this Agreement.

6. Confidentiality.

1. Definition.  “Confidential Information” shall mean any information of User or Provider which is or should be reasonably understood to be confidential or proprietary to the disclosing party, including, but not limited to, any information concerning or relating to:  (i) the terms and conditions of this Agreement, including fees and other pricing information, but excluding factual information regarding the existence of this Agreement and the general business relationship between the Parties; (ii) the disclosing party’s proprietary technology and products, including without limitation, technical data, trade secrets, know-how, research, product plans, ideas or concepts, products, services, software, source code, inventions, patent applications, techniques, processes, developments, algorithms, formulas, technology, designs, schematics, drawings, engineering, and hardware configuration information (collectively, “Technical Information”); and (iii) the disclosing party’s proprietary information relating to the disclosing party’s operations and business or financial plans or strategies, including but not limited to customers, customer lists, markets, financial statements and projections, product pricing and marketing, financial or other strategic business plans or information (collectively, “Business Information”), disclosed to the receiving party by the disclosing party, either directly or indirectly, in writing, orally, electronically, or by drawings or inspection of samples, equipment or facilities.  “Confidential Information” shall not include information which the receiving party can demonstrate:  (a) is known to the receiving party at the time of the disclosure by the disclosing party, as evidenced by written records of the receiving party; (b) has become publicly known and made generally available through no wrongful act of the receiving party; or (c) has rightfully been received by the receiving party from a third party who is authorized by the disclosing party to make such disclosures.

2. Obligations.  Each party shall treat as proprietary and shall maintain in strict confidence all Confidential Information of the other and shall not, without the express prior written consent of such other party, disclose such Confidential Information or use any such Confidential Information other than in furtherance of its obligations hereunder.

3. Remedies.  The receiving party agrees that the unauthorized disclosure or use of the disclosing party’s Confidential Information may cause irreparable harm and significant and immeasurable injury.  Accordingly, the receiving party agrees that the disclosing party shall have the right to seek an injunction against any breach of this Section 6.

4. Subpoena Procedure.  In the event the receiving party receives a subpoena or other validly issued administrative or judicial process requesting any portion of the Confidential Information of the disclosing party, the receiving party shall promptly notify the disclosing party and tender to it defense of such demand.  Unless the demand shall have been timely limited, quashed or extended, the receiving party shall thereafter be entitled to comply with such subpoena or other process to the extent permitted by law.  If requested by the disclosing party to whom the defense has been tendered, the receiving party shall cooperate (at the expense of the disclosing party) in the defense of a demand.

5. Return or Destruction of Materials.  Except as otherwise provided herein, and upon termination of this Agreement and at the disclosing party’s request, the receiving party shall, at the disclosing party’s option, either (i) return to the disclosing party copies of the disclosing party’s Confidential Information in and electronic or printed format; or (ii) destroy all copies of disclosing party’s Confidential Information in tangible (including electronic) form which are not returned, and certify to the disclosing party that all such copies of such Confidential Information have been destroyed.

8. Intellectual Property Rights.

1. Provider Intellectual PropertyProvider owns or has obtained all proprietary rights necessary, including copyrights, patents, and trade secrets, in and to the System necessary for it to fulfill its obligations under this Agreement.  Provider shall retain ownership of all right, title, and interest in and to the System and its components, all copies thereof, all modifications and enhancements thereto (including all derivative works of the System developed by User or its affiliates), and all related intellectual property.  Nothing in this Agreement shall be construed to transfer any rights to User except as expressly granted herein.

8. Warranties and Representations.

1. WARRANTY. THE SYSTEM IS PROVIDED “AS IS” AND PROVIDER MAKES, AND USER RECEIVES, NO WARRANTIES, WHETHER EXPRESSED OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES, SYSTEM, OR INTEGRATED SYSTEM ARE SUITABLE FOR THE NEEDS OF USER OR ANY THIRD PARTY, OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.  

2. Beta Status . User hereby acknowledges that certain features and functionality of the product or in early development and may experience down time within the system that may limit its functionality and availability.

3. User Acknowledgment.  User hereby acknowledges and agrees that the functionality and performance of the System is limited to the scope and breadth of the software components as licensed by User.  Moreover, User also acknowledges and agrees that Provider is not responsible, and that User is solely responsible, for privacy issues arising from the use of the System.

4. No Conflicts; Compliance.  Each Party hereby represents and warrants that, to the best of its knowledge, its performance under this Agreement will not conflict with any duties owed to, or rights held by, any third parties.  User represents, warrants and agrees that it will use the System only for lawful purposes and in compliance with all applicable laws.

5. Reverse Engineering.  User hereby acknowledges that Provider’s System is comprised of valuable trade secrets, proprietary knowledge, and other intellectual capital.  As such, User warrants and represents that it will not reverse engineer, reverse compile, reverse assemble, or otherwise attempt to obtain, use or create source code for the functionality of the components of the System, nor will User permit any third party to do so and shall use best efforts to prevent such.  

6. Scope.  User warrants and represents that it will not exceed the scope of the licenses granted under this Agreement.

7. Documents Generated by The System. User understands that the documents that are generated by the system are not represented to be legally compliant with TxDMV regulations or law of any type. Nor does it provide any other legal protection. It is suggested that the user have all the documents reviewed by an attorney.

8. Pricing. User shall be responsible for maintaining pricing and any and should check that the prices generated by the system are compliant with there rates prior to presenting the price to the consumer. Provider is not responsible for over or under pricing of jobs and they should be calculated each time a quote is given or contract is printed.

9. Prohibited Data. At no time shall User enter Social Security numbers or credit card information into the system.

9. Limitation of Liability.  IN NO EVENT SHALL PROVIDER BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.  IN NO EVENT SHALL PROVIDER’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF FEES PAID UNDER THIS AGREEMENT.  

10. Indemnification.  

1. Indemnity Obligation by User.  User agrees to indemnify, defend, and hold harmless Provider for any action or claim brought against Provider to the extent that it is based upon a claim that User’s use of the System or any content or data placed on the System by User or its participants directly infringes any intellectual property or other personal or property rights including without limitation patent, copyright, trademark, or trade secret rights or to the extent such claims arise from use of the System, whether statutory or at common law, including without limitation, claims of negligence or gross negligence .  User also agrees to indemnify, defend, and hold harmless Provider for any action or claim brought against Provider to the extent that it is based upon a claim that the Services or the System directly infringes the privacy rights of any third party or constitutes defamation and related causes of action, false advertising, violation of rights to publicity, or any and all other content-based causes of action under state, federal, or international laws.  User will pay any judgment awarded against Provider that are attributable to such claims, or settlement approved in advance by User, provided that:  (i) Provider promptly notifies User in writing of the claim or any threat thereof, (ii) Provider grants User sole control of the defense and settlement of the claim; and (iii) Provider provides User with all assistance, information, and authority reasonably required for the defense and settlement of the claim at User’s expense.  User shall not be responsible for damages or costs under any settlement or compromise made without its consent.  Provider may retain their own counsel (at its own expense) to monitor and/or participate in the defense and settlement of the claim.

2. Indemnity Obligation by Provider.  Provider agrees to indemnify, defend, and hold harmless User for any action or claim brought against User to the extent that it is based upon a claim that the Services or System directly infringe any intellectual property rights including without limitation patent, copyright, trademark, or trade secret rights.  Provider will pay any judgment awarded against User that is attributable to such claim, or settlement approved in advance by Provider, provided that:  (i) User promptly notifies Provider in writing of the claim or any threat thereof, (ii) User grants Provider sole control of the defense and settlement of the claim; and (iii) User provides Provider with all assistance, information, and authority reasonably required for the defense and settlement of the claim at Provider’s expense.  Provider shall not be responsible for damages or costs under any settlement or compromise made without its consent.  User may retain their own counsel (at its own expense) to monitor and/or participate in the defense and settlement of the claim. The foregoing indemnity does not apply to any misuse of the Services by using the Services other than for their intended purpose, whether by User, any User employee or partner, or otherwise.

3. Additional Remedies Available to Provider.  Notwithstanding the other provisions of this Section 10, if User’s use of any of the Services or the System hereunder becomes subject to a claim, or in Provider’s opinion is likely to become subject to a claim, Provider may, at its sole option and expense: (i) procure for User the right to continue using such Services or the System under the terms of this Agreement; (ii) replace or modify such Services or the System so that it is non-infringing, provided, however, that any such efforts not substantially diminish the functionality of the Services or the System as it exists on the date of this Agreement; or (iii) immediately terminate this Agreement and fully refund all fees paid by User, at which time User will use its best efforts to cease all use of the Services or the System.  In any event, User’s use of the Services or the System beyond three (3) days following its receipt of such termination notice under this section shall constitute a waiver by User of all rights to indemnification under this Agreement.

11. General Miscellaneous.

1. Nature of Obligations Between Parties.  The obligations of each Party under this Agreement shall be in every case several and shall not be, or be construed to be, either joint or joint and several.  Nothing contained in this Agreement shall be deemed to constitute either Party the partner, agent, or legal representative of the other Party or to create any fiduciary relationship for any purpose whatsoever.  Except as otherwise specifically provided in this Agreement, nothing in this Agreement shall confer on either Party any authority to act for, bind, or create or assume any obligation or responsibility on behalf of the other Party.

2. Survival.  The rights and obligations of the Parties under Sections 2, 3, 4, 6, 7, 8, 9, 10, 11, and Exhibit A hereto that have accrued up until the date of termination shall survive the termination of this Agreement.

3. Notices.  In any case where any notice or other communication is required or permitted to be given hereunder, such notice or communication shall be in writing and (i) personally delivered, or (ii) sent by established courier service to the address of a Party at the address set forth in the first paragraph of this Agreement.  All such notices shall be deemed to have been given and received (a) upon receipt if personally delivered, or (b) when delivery is confirmed if sent by courier service.

4. Binding Arbitration.  Any controversy or claim arising out of or related to any interpretation, construction, or performance of this Agreement, an alleged breach thereof, or otherwise based on any relationship existing between the Parties shall be settled promptly by binding arbitration in accordance with the rules of the American Arbitration Association.  The arbitration shall be conducted in Austin, Texas, U.S.A., and the arbitrator shall apply the laws of the State of Texas.  The arbitrator shall also be empowered to grant injunctions or other relief in such disputes.  Any judgment, award, or mandate rendered by arbitration shall be entered in and enforced by any court having jurisdiction over the party to which such judgment, award, or mandate applies.  The prevailing party in any arbitration under this section shall be entitled to reasonable attorney fees and expenses incurred in connection therewith.

5. Choice of Law.  This Agreement and the rights and obligations of the Parties hereunder shall be governed by and construed in accordance with the laws of the State of Texas without reference to its provisions on conflict of laws.  Any and all claims hereunder must be raised within one (1) year of the event or occurrence from which they arise, or from when such event or occurrence is or could reasonably be determined by the claimant Party.

6. Legal Indemnification.  If court proceedings are required to enforce any provision of this Agreement, the prevailing Party shall be entitled to an award of reasonable costs and expenses of litigation and any appeal, including reasonable attorneys’ fees.

7. Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law.  If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by a court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and (ii) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and shall be reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable while preserving the original intent of the Parties.

8. Headings.  The section or other headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of this Agreement.  Unless otherwise stated, references to Sections herein are references to Sections hereof.

9. Waiver.  The waiver by either Party of a breach of or a default under any provision of this Agreement shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder or by law or at equity operate as a waiver of any right or remedy except as otherwise provided herein.

10. Successors and Assigns.  Neither Party may assign this Agreement without the express written consent of the other Party, which consent shall not be unreasonably withheld, provided however that no such consent shall be required for assignment to a successor to a majority ownership of the assigning Party’s business or assets; provided, however, that either Party may assign this Agreement to an acquirer of all or substantially all of such Party’s assets, whether by merger, operation of law or otherwise, without the other Party’s prior written approval.  Assignments made in violation of this section shall not be considered a material breach of this Agreement, but shall be voidable at the option of the non-assigning Party.

11. Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which shall constitute one and the same Agreement.

12. Entire Agreement. This Agreement, together with the Exhibits A and B hereto, constitutes the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all previous communications, agreements, and understandings between the Parties relating to the subject matter hereof.  Neither Party has entered into this Agreement in reliance upon any representation, warranty, or undertaking of the other Party that is not set out or referred to in this Agreement.  No amendment or modification of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of each Party.

13. Approvals and Consents.  Except as expressly provided otherwise in this Agreement, where agreement, approval, acceptance, or consent by either Party is required by any provision of this Agreement, that action will not be unreasonably delayed or withheld.

14. Further Assurances.  Each Party will, at the other’s request, enter into additional agreements or assignments, or will obtain other documentation as is reasonably necessary to give effect to this Agreement.

15. Representation of Counsel and Mutual Negotiation.  Each Party acknowledges it has had the opportunity to be represented by counsel of its choice in negotiating and executing this Agreement.  This Agreement will therefore be deemed to have been negotiated and prepared at the joint request, direction, and construction of the Parties, at arms-length, with the advice and participation of counsel, and will be interpreted in accordance with its terms without favor to any Party.

16. Supremacy of Contract.  If there is any conflict between the terms and conditions of this Agreement and any Exhibit, Schedule, addendum, or document incorporated by reference in this Agreement, the body of this Agreement will control.

17. Mutual Representations.  Each Party warrants and represents that the execution, delivery, and performance of this Agreement (i) are within its corporate powers, (ii) have been duly authorized by all necessary corporate action on such Party’s part, and (iii) do not and will not contravene or constitute a default under, and are not and will not be inconsistent with any judgment decree or order, or any contract, agreement, or other undertaking applicable to such Party.

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives as of the date of submission.

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EXHIBIT A

Detailed Description of the System and Support

The System will be provided to User using an Application Service Provider (ASP) model.  Provider will manage all application code, database and User data at a remote location.

System Functionality: An online web-based system which creates and manages moving quotes for moving companies.

Setup Fee$ nope

Monthly Service Fee $As shown on the screen in the initial credit card transaction

Upon request by User, Provider may, in its sole discretion, provide additional training time to User at  a rate of eighty ($80.00)  per hour per trainer.

Upon request by User, Provider may, in its sole discretion, provide additional programming time to User at a rate of eighty ($80.00) per hour per  programmer.

Upon request by User, Provider may, in its sole discretion, provide additional Design time to User at a rate of eighty ($80.00) per hour per Designer.

TermMonth to Month, with cancellation rights per Article 3.

Support and Maintenance:

Provider will maintain and support the System during the duration of this Agreement at no cost to User.  Access to the System will be made available to User via the Internet using web browser a version of Google Chrome.  It is User’s responsibility to maintain web browser functionality and Internet access at its location. Provider’s support obligation shall be limited to technical support for User’s Identified Support Contact during the hours of 9:00 am to 5:00 PM central standard time Monday through Friday. It is the obligation of User to notify Provider in writing of the name of the User’s Identified Support Contact. Provider shall have no obligation to change, modify or enhance any or all parts of the System for any reason.

Address for Payments

Email Invoice

EXHIBIT B

System Functionality

System will create store and manage moving quotes for moving companies over the Internet via a version of Chrome Internet browser.