Standard Service Agreement
END USER LICENSE AGREEMENT
This End User License Agreement (this “EULA”) is entered by and between the purchaser and/or end user (“Subscriber,” “You,” or “Your”) of the Software (defined below), and Konnektive LLC, d/b/a/ FunnelKonnekt (“Konnektive”), a Puerto Rico Limited Liability Company as of the date you accept or execute this EULA (the “Effective Date”). Both Konnektive and Subscriber may be referred to herein individually as a “Party” and/or collectively as the “Parties.” Capitalized terms used in this EULA, other than those capitalized for grammatical reasons, are defined in the Section in which they are first used as indicated by bold type. This English language version of this EULA is the controlling version regardless of any translation.
IMPORTANT NOTE TO BE READ BEFORE ACCESSING OR USING THE SOFTWARE. Konnektive licenses the accompanying Software (defined below) to you only upon the condition you accept all of the terms contained in this Agreement (defined below). Before you click indicating acceptance of the purchase of, and prior to using the Software, you should carefully read all the terms and conditions of this Agreement. By clicking “select plan,” “activate now,” “submit,” “order now,” or “purchase” to open an account with Konnektive, or any other application made available by Konnektive, by your use of the Software, or by executing this EULA and completing the Konnektive purchase order, you are consenting to be bound by and are becoming a party to the contract formed by this EULA, and the attached Exhibits, including the purchase order, all payment terms, policies, practices, rules, standards and guidelines (collectively, the “Policies”) related to the Software and/or Services (defined below) (this EULA and the Policies, collectively referred to as, the “Agreement”) and also will be acknowledging that you have the authority to enter into this Agreement and bind yourself or your company, as applicable. If you do not agree to all of the terms of this Agreement, Konnektive is unwilling to license the Software to you, in which event do not click acceptance of its terms and stop the account setup process or any use of the Software.
Each Party agrees that any of its representatives, employees, affiliates, members or any person or entity acting on its behalf with respect to the provision of or use of the Services shall be bound by, and shall abide by, the terms of this Agreement.
The Use Rights are non-exclusive such that we may grant to others or reserve for our own use, rights that are the same as or similar to those we grant to you. All rights not expressly granted to you are reserved by Konnektive and its licensors. The Use Rights are personal to you and thus is non-transferable, non-assignable and non-sublicensable (unless expressly provided herein). As used herein: “Business Users” means those employees or independent contractors designated by your Administrators to have the limited Use Rights we grant to such category of users; and “Authorized Users” means Administrators and Business Users, collectively.
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT KONNEKTIVE SHALL NOT BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING ANY LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT OR REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN IF KONNEKTIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. KONNEKTIVE’S TOTAL CUMULATIVE LIABILITY HEREUNDER, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS ACTUALLY RECEIVED BY KONNEKTIVE FROM SUBSCRIBER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCURRENCE OF ANY SUCH LIABILITY. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF KONNEKTIVE ARISING OUT OF THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 11 ARE REASONABLE AND ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH SUBSCRIBER’S USE OF THE KONNEKTIVE OFFERINGS PROVIDED BY KONNEKTIVE HEREUNDER, AND THAT, WERE KONNEKTIVE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH CONSIDERATION WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
Subscriber’s Use Rights to the Konnektive Offerings is not transferable or assignable. Any username, password or right given to you to obtain information or documents is not transferable or assignable. Notwithstanding the foregoing, either Party may assign the Agreement, and any of its rights hereunder, in connection with the sale of all or substantially all of its assets or stock sale, merger or other corporate reorganization resulting in a change of control, with the prior written consent of the other Party, which should not be unreasonably withheld.
Subscriber agrees that during the Term and for two (2) years thereafter, Subscriber will not develop, reengineer Konnektive technology, offer, sell or distribute a competing technology to the Konnektive Offerings. A competing service is defined as a service that seeks to acquire Subscribers for the purpose of offering a customer relationship management or campaign management software system. Notwithstanding anything to the contrary in this Section 13, Subscriber shall be permitted to develop and utilize a service similar to the Subscription Services solely for use by Subscriber in connection with its own marketing activities, except where Subscriber may pirate, copy, or reengineer Konnektive technology, functionality or intellectual property. Subscriber understands that violation of this clause is grounds for immediate termination of the Agreement by Konnektive with no liability on the part of Konnektive and further Subscriber understands that Konnektive may seek equitable relief to stop the violation and competing activity as well as any other relief available under the law.
Subscriber grants to Konnektive a non-exclusive license to use, reproduce, publicly and digitally display and perform, transmit and broadcast Subscriber’s name, logos, trademarks, trade names, service marks, URLs and slogans to advertise, market, promote and publicize the Konnektive Offerings, including the inclusion of Subscriber in Konnektive’s marketing materials and on Konnektive’s “Subscribers testimonial page.”
The validity, interpretation, construction, and performance of this Agreement shall be governed by and construed in accordance with the internal substantive laws of the Commonwealth of Puerto Rico, without giving effect to its principles of choice of law or conflicts of law thereunder. Any action or proceeding seeking to enforce any provision of or based on any right arising out of this Agreement, may be brought against either of the parties in the courts of the Commonwealth of Puerto Rico, San Juan, or, if it has or can acquire jurisdiction, in the United States District Court located in San Juan, Puerto Rico, and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.
Process in any action or proceeding referred to in the preceding sentence may be served on either party anywhere in the world. In the event it shall become necessary for either party to take action of any type whatsoever to enforce the terms of this Agreement, the prevailing party shall be entitled to recover all attorneys’ fees, costs, and expenses, including all out of pocket expenses that are not taxable as costs, incurred in connection with any such action, including any investigations, demands, negotiations, mediation, arbitration, litigation, and appeals.
All notices or other communications required or permitted to be given hereunder must be (as elected by the Party giving such notice): (a) personally delivered at the address set forth on your Account; (b) transmitted by postage prepaid mail to the address set forth on your Account; or (c) faxed to the Party at fax number set forth on your Account. Except as otherwise specified herein, all notices and other communications will be deemed to have been given on: (x) the date of receipt if delivered personally; (y) the date that is five (5) days after posting if transmitted by mail; or (z) the date of confirmation receipt if faxed. A Party may change its address for purposes of this Section 18 by written notice to the other Party in accordance with this Section.
Headings of Sections are for the convenience of reference only. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements or understandings between the Parties with respect to such subject matter. This Agreement may be modified by Konnektive from time to time at its sole discretion. Each updated or supplemented version shall supersede the prior version. No joint venture, partnership, employment, or agency relationship exists between you and Konnektive as a result of this Agreement or your use of the Konnektive Offerings. It is the express intent of the Parties that no Party is an employee of the other Party for any purpose but is an independent contractor for all purposes and in all situations. Each Party and its directors, officers, employees and agents may not represent that they are employees of the other Party, nor may they in any manner hold themselves out to be employees of the other Party. If any provision of the Agreement is being determined by a court of competent jurisdiction to be invalid or unenforceable, such provision will, to such extent as it is determined to be invalid or unenforceable, be reformed without further action by the Parties to the extent necessary to make the provision valid and enforceable and no other provision will be affected or impaired thereby. This Agreement may be executed in separate counterparts (each of which is an original and all of which will be deemed one and the same instrument). Counterparts may be executed either in original or faxed form and the Parties adopt any signatures received by a receiving fax machine as original signatures of the Parties. The word “including” is exemplary meaning “including, without limitation” or “including, but not limited to” unless otherwise indicated. The words “shall,” “will,” and “must” are each intended to be obligatory and to require performance of the stated condition, etc., at the applicable time during the Term. The word “may” is permissive, imparting a right, but not an obligation, to perform the stated action.
Standard License Fees
Konnektive Standard License Fees. In consideration for payment of the Fees due and compliance with the Agreement, Konnektive shall provide you with access to the Konnektive Offerings, which include the features listed on the websites identified in Section 1.1. Upon the Parties’ acceptance of this Agreement, the initial license and setup fees are due and are nonrefundable. The license and set-up fees are as follows:
Setup Fee: WAIVED
Monthly License Fee(s)
0-250 transactions per month: $ 199.00
251-500 transactions per month: $ 499.00
501-1,000 transactions per month: $ 999.00
1,001-25,000 transactions per month: $ 1,499.00
25,001-100,000 transactions per month: $ 2,499.00
100,001+ transactions per month: $ 4,999.00 plus $.02 per transaction (dedicated server)
API integration(s): By Quote
Custom Development*. Custom programming and development is billed by Konnektive to Subscriber at $150.00 per hour, plus travel and related expenses, if necessary, with a 4-hour minimum. Any work requested by Subscriber will be subject to the hourly rate. All scope and quotes will have a $200 deposit required prior to the quote being started or the API being looked at. Should Subscriber proceed with the quote, the $200 deposit will apply to cost of development.
Support*. Konnektive will provide incident-based help desk phone and email support for all technical issues/questions in connection with the Konnektive Offerings that arise during the Term. Administrative tasks to the Software or general configuration of the Konnektive Offerings in each case by Konnektive on behalf of Subscriber that are not tied directly to technical issues in connection with the Services will be billed to Subscriber at $60/hour (1-hour minimum).
Implementation. Konnektive provides an implementation worksheet and a product set-up worksheet. Konnektive’s setup responsibilities shall include; products, campaigns, and affiliates; merchant accounts, and decline salvage; SMTP email auto-responder; fulfillment house; user set-up; and any related plugins. It is the sole responsibility of the Subscriber to ensure a timely return of the documentation, and no work shall begin until all documentation is returned. Konnektive shall not be held responsible for delays in work, and a strict time record shall be maintained. It is important to note that a license for access to the Konnektive Offerings is issued immediately, and regardless of the status, all licensing fees shall become due and billable at the monthly anniversary of your enrollment. All licensing fees are paid prior to use, and such fees are not subject to refund, and once a threshold is reached, that is the license fee until the next level is attained.
* Hourly rates are subject to change, and any changes in fee shall be communicated in writing at least thirty (30) day prior to rate increases taking effect.
EXHIBIT B
Optional Add-On Services
Konnektive provides various add-on services, either provided internally or through third-party providers that the Subscriber can select from time to time. These services shall be billed to Subscriber’s Account on file for the services activated and utilized by Subscriber. Such services are optional and shall include, but are not limited to:
Konnektive Bundle:
Fraud Manager Screening, NMI/Fluid Pay Gateway, Chargeback Protect: $.20 per transaction
Al A Carte Services:
Fraud Manager – Kount Fraud Screening: $.10 per screening
Gateway Services: $.10 per transaction/$5.00 per account
3D Secure – Visa/MasterCard Verification Services: $.15 per transaction
3D Secure 3rd party - Visa/MasterCard Verification Services: ......................................$.05 per transaction (for use with our technology, gateway integration, storage of the authentication and reporting)
Account Updater: $1.50 per updated account (plus any network fees)
Social Proof JS Plugin: $10.00 per website monthly
Chargeback Services:
$10 per Complete / retrieval management and $5 per Partial chargeback
Complete management includes matching and compiling chargeback/retrieval and order information, generating a comprehensive representment package and fighting the chargeback/retrieval, and performing any necessary order system actions such as blacklisting, marking as a chargeback and canceling future recurring billing. Partial management applies to chargebacks that are filtered out as not to be fought and the same matching, compiling and order system actions are performed other than filing of the representment package.
$10 per month per each merchant account
Monitoring, reporting, analytics and notifications.
$40 per Ethoca Alert received
Clients who select this option shall also execute the Additional Services Request Form as it pertains to Ethoca Alerts in order to utilize this service.
$40 per Verifi Alert received
Clients who select this option shall also execute the Additional Services Request Form as it pertains to Verifi Alerts in order to utilize this service.
$30 per VMPI/Order Insight Case
Clients who select this option shall also execute the VMPI/ORDER INSIGHT AMENDMENT as it pertains to VMPI/Order Insight Cases in order to utilize this service.
All fees due and payable will be billed to the Subscribers account on file. Any fees due shall follow the terms of Section 5 of the Agreement, and any unpaid portions will result in a suspension of all services until the account is brought current.
Confidential