KACHING KACHING, INC. & BEYOND COMMERCE, INC. MASTER LICENSE AGREEMENT
EXHIBIT
10.40
KACHING
KACHING, INC. & BEYOND COMMERCE, INC. MASTER LICENSE AGREEMENT
This MASTER LICENSE AGREEMENT
(“Agreement”) is made this 21st day of October _, 2009, by and between
Beyond Commerce, Inc., a Nevada corporation (“Company”) and Kaching Kaching,
Inc., a Nevada corporation (“Kaching Kaching”), with reference to the following
recitals.
WHEREAS, Kaching Kaching is in the
business of establishing, licensing, marketing and selling to third parties and
consumers e-commerce shopping solutions and e-commerce stores, which will enable
each such consumer to operate his or her own Retail Web Stores
(“RWS”).
WHEREAS, Beyond Commerce has developed
an infrastructure known as the I-Supply Shopping System, which includes certain
proprietary technology which enables I-Supply, among other things, to be able to
process e-commerce transactions on the Internet in an efficient and effective
manner and to track customer orders from the time the order is placed through
delivery to the consumer’s designated ship to address (“Back-end Processing
Technology”);
WHEREAS,
Beyond Commerce hereby appoints Kaching Kaching as the Master Licensor and
Distributor to sell, license and distribute the Back-end Processing Services and
I-Supply Shopping System to any and all third parties and
consumers.
WHEREAS, Kaching Kaching desires to
become the Master Distributor to sell, market and sub-license the
(i) Back-end Processing Technology by retaining Company to provide
back-end processing services (“Back-end Processing Services”), more particularly
described below, which Kaching Kaching will package on a private label basis
with each RWS sold by Kaching Kaching, and (ii) include as part of each RWS a
private label version of the I-supply Internet shopping site, with I-supply
processing orders placed by consumers through each such RWS, all upon the terms
and conditions set forth below; and
WHEREAS
the parties desire to enter into this Agreement to more clearly define their
respective duties and responsibilities.
NOW, THEREFORE, the parties hereto
agree as follows:
1. Scope of Services for
Kaching Kaching and Company
Company
hereby appoints Kaching Kaching as the Exclusive Master Licensor and Distributor
to sell, license and distribute the Back-end Processing Services and I-supply
shopping system to any and all third parties. So long as the Company is
compensated in accordance with the terms of this Agreement, Kaching Kaching
shall maintain in its sole discretion the right to enter into all third party
licenses and agreements that contemplate the use of the Back-end Processing
Services and I-Supply Shopping System for the term of this
Agreement.
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Kaching
Kaching hereby retains Company, and Company accepts such retention, to provide
to and/or assist Kaching Kaching during the Term (as defined below) with
Back-end Processing Services using I-supply’s Back-end Processing Technology
which will be packaged by Kaching Kaching on a private label basis with each RWS
sold by Kaching Kaching. Back-end Processing Services that will be
private labeled with each RWS shall include, without limitation, the
following:
a. Transaction
Processing. Company will also process on behalf of Kaching Kaching
all RWS customer orders on its network and provide retail transactional software
and functionality for credit/debit card validation, fraud detection, order
tracking, and transaction accounting, as detailed below.
b. Credit/Debit Card
Validation. Company shall provide all transactional processing
and system functionality for card validation, authorization and
settlement. Kaching Kaching and/or each RWS owner shall be
responsible for securing the necessary agreements with all third party credit
card authorizers and processors, including Visa, MasterCard, American Express,
Discover Card and any others serving the local market, and shall be solely
responsible for paying all fees and charges of any kind related
thereto.
c. Fraud
Detection. Company will provide all software functionality and
transactional support to third party fraud detection service
providers. Kaching Kaching and/or each RWS owner shall be responsible
for contracting directly with an independent fraud detection service provider,
and shall be solely responsible for paying the charges related
thereto.
d. Customer
Service. Company will provide all software functionality and
e-commerce communication to support Kaching Kaching’s and/or each RWS owner’s
customer service needs (including e-mail and telephonic customer service
functionality). Kaching Kaching and/or each RWS owner shall be
responsible for retaining or hiring an external and/or internal customer service
support staff and paying directly all costs associated therewith, including
third party fees and/or salaries and telephone costs.
e. Order
Tracking. Company shall provide all system functionality and
processing to enable order tracking; provided, however, that Kaching Kaching’s
and/or each RWS owner’s external and/or internal customer service staff shall be
responsible for handling all order tracking calls from customers. In
addition, Company shall assist Kaching Kaching’s web site with functionality to
enable RWS customers to initiate their own order tracking directly from such web
site using customer order numbers.
f. Transaction Accounting,
Reporting and Records Retention. Company shall provide all systems
and functionality necessary (i) for transfers of transactional information to
financial accounting; (ii) to enable Kaching Kaching and/or each RWS owner to
retrieve such information and data from the system for its own accounting
purposes and (iii) to enable Kaching Kaching and/or each RWS owner to use,
modify, validate and/or otherwise fully utilize Company’s systems to properly
control and maintain their accounting, transactions, reporting and record
retention systems. Company shall not be responsible for managing or
administering Kaching Kaching’s or any RWS owner’s general ledger or related
financial accounting. Company shall provide all necessary system functionality,
all transactional processing and all data storage capabilities for record
retention, including, but not limited to, transactions, customer profiles, and
any other reasonable and necessary information required by Kaching Kaching
and/or each RWS owner.
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g. Vendor Communication and
Management. Company shall provide the functionality to support
vendor communications and management by telephone, EDI, fax, e-mail and
e-fax. Kaching Kaching and/or each RWS owner will be responsible for
all communications with and management of its specialty vendors if accepted by
Company. In addition, Kaching Kaching shall be responsible for
establishing its own product supply and credit lines or other payment
arrangements with the Company’s approved vendors.
h. Customer
Profiles. Company agrees that, within the capabilities of its
system architecture and to the extent that such information is readily
available, to make available to Kaching Kaching customer profiles and recent
product order histories (estimated to be a minimum six (6) to twelve (12) month
history), subject to local privacy laws.
i. Maintenance. During
the term of this Agreement, Company agrees to provide on-going maintenance of
the Back-end Processing Technology and to make available to Kaching Kaching at
no cost all enhancements and modifications developed by Company to such
technology and system functionality.
The
Company agrees that, for a period of 36 months, it shall not provide the
foregoing services to any other person or entity operating in the direct selling
or network marketing industry.
2. Order
Processing. The Company
agrees that during the term of this Agreement, the orders shall be processed by
I-supply (the “Order Processing”); provided, however, that, Kaching Kaching
shall be responsible for establishing certain (i) vendor supply and credit
arrangements, and (ii) product pricing for goods sold through the RWSs, which
shall take into consideration the Company’s product cost and the fee payable to
the Company on all sales through an RWS.
3. Term and
Termination.
3.1
The term of this Agreement shall commence as of the Effective Date and continue
for a period of (Five) year(s) (the “Initial Term”), unless sooner terminated as
provided below. Upon expiration of the Initial Term or an Additional
Term (as defined below), the Agreement shall be automatically extended for
additional periods of Two year(s) (each an “Additional Term”), unless one party
shall have given written notice to the other party of its election to terminate
the Agreement not less than sixty (60) days prior to the expiration of such
Initial Term or Additional Term. Within sixty (60) days prior to the
expiration of the Initial Term and each Additional Term, the parties agree to
negotiate the terms of such Additional Term, which negotiations shall take into
consideration the value of the services provided and compensation paid to date,
the services being provided to and compensation being paid by affiliated
companies, and the current market rate for such services (including anticipated
services). The Initial Term and each Additional Term are collectively
referred to herein as the “Term.”
3.2 Company
and Kaching Kaching may mutually agree in writing to terminate this Agreement at
any time.
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3.3 Either
party may terminate this Agreement immediately if:
(a) The
other party has breached a material term of this Agreement and, after written
notice and a reasonable opportunity, not to exceed fifteen (15) days, the other
party fails to cure such breach; or
(b) The
other party has committed any act or omission that materially injures the
reputation of the other party.
3.4 Upon
any termination of this Agreement, each party shall promptly deliver to the
other party all Confidential Information (defined below) and property belonging
to the other party that is in its possession or under its control, and neither
party shall retain copies or reproductions of such Confidential
Information.
4. Compensation.
As compensation for the Back-end Processing Services and Order Processing to be
rendered by the Company under this Agreement, Kaching Kaching agrees to pay to
the Company the following:
4.1 Within
5 days following the end of each month, Kaching Kaching shall pay to the Company
an amount equal five percent (5%) of the aggregate gross sales made from sales
of all RWSs during the prior month for which the Company was providing the
Back-end Processing Services and Order Processing.
4.2 Upon the one
year anniversary date of this Agreement the amount due to Company under this
section 4.1 shall be increased by two percent (2%) for a total of seven percent
(7%) of the aggregate gross sales made from the sale of all RWSs during the
remaining four years of the Agreement. In addition, Kaching Kaching shall pay to
the Company an amount equal two percent (2%) of the aggregate gross sales made
through all RWSs during the prior month for which the Company was providing the
Back-end Processing Services and Order Processing.
5. Independent
Contractor Relationship. This Agreement shall in no way be
construed to constitute either party as a partner, joint venturer,
agent, or employee of the other party, and neither party shall act or attempt to
act or represent itself, directly or by implication, as a partner, joint
venturer, agent or employee of the other party. Neither party nor any
of its respective employees shall have any authority to enter into contracts,
make commitments or otherwise bind the other party to any obligations without
the other party’s prior written consent.
6. Confidentiality;
Non-Circumvention and Non-Competition.
(a) Each
party acknowledges and agrees that it will have access to or be provided with
confidential information of the other party during the term of this
Agreement. As used herein, the term “Confidential Information” shall
mean any and all proprietary or confidential information of a party, including,
without limitation such party’s business plan, business presentation or related
proprietary and financial information as well as other confidential or
proprietary information of such party regarding the such party’s business,
plans, financial results and statements, markets, projected activities,
customers and results of operations, requirements and sources, contracts, means,
methods and processes of providing services, copyrights, patents, trademarks,
trade secrets, and financial information.
(b) Each
party agrees to keep the Confidential Information of the other party in the
strictest confidence, and agrees that it will not, directly or indirectly,
publish or disclose, or authorize the publication or disclosure of, or assist
any third party in publishing or disclosing, any Confidential Information to
anyone other than its employees or consultants, but only to the extent necessary
for the fulfillment of its obligations under this Agreement and subject in each
such case to the such party using its best efforts to ensure that the persons to
whom Confidential Information is disclosed keep such information confidential
and do not use such Confidential Information except for the purposes for which
the disclosure is made. Each party agrees to comply with the other
party’s policies and regulations, as may be reasonably established from time to
time, for the protection of its Confidential Information.
(c)
Each party’s confidentiality obligations shall continue with respect to each
item of Confidential Information, including after the termination of this
Agreement, for a period of five (5) years or until such time as such party can
show that any such item of Confidential Information (i) has legally and properly
entered the public domain through a source other than its own and through no
fault of its own, (ii) has legally and properly been received from an unrelated
third party through no breach of any agreement with the other party and without
an obligation to keep it confidential, (iii) was known to such party
or was in such party’s possession, without any obligation to keep it
confidential, prior to the receipt of such item of Confidential Information from
the other party, or (iv) was independently developed by one party without
reference to Confidential Information received hereunder.
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(d) Each
party acknowledges that the other party’s Confidential Information is of a
special, unique and extraordinary character and for that reason the other party
will be irreparably damaged in the event that the confidentiality,
non-circumvention or non-competition obligations imposed upon it, as set forth
herein, are not specifically enforced. Accordingly, each party agrees
that the other party shall be entitled, at its election, to institute and
prosecute proceedings against it, as set forth herein, in any court of competent
jurisdiction, either at law or equity, to: (i) obtain damages for breach of the
obligations hereunder; (ii) enforce specific performance of said obligations, or
both. Such remedies are cumulative and not exclusive and shall be in
addition to any and all other remedies which the other party may have, at law or
in equity, in the event the a party breaches any of its obligations
hereunder. The parties hereto confirm that the covenants in this
Agreement are expressly deemed to cover acts of negligence and any inadvertent
disclosure or violation of the terms herein.
7. Ownership
of Proprietary Information. Kaching Kaching
hereby acknowledges and agrees that the Back-end Processing Technology is the
sole and exclusive property of Beyond Commerce and that Kaching Kaching has no,
and shall not obtain any by virtue of this Agreement, right, title or interest
in or to any of the Back-end Processing Technology.
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8. Limitation
of Liability. Notwithstanding
anything to the contrary contained herein, the limit of Company’s liability
(whether in contract, tort, negligence, strict liability in tort or by statute
or otherwise) to Kaching Kaching or to any third party concerning performance or
non-performance under this Agreement, or in any manner related to this
Agreement, for any and all claims shall not in the aggregate exceed the monetary
amounts previously paid by Kaching Kaching to Company pursuant to this
Agreement. IN NO EVENT SHALL COMPANY BE LIABLE
FOR CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGES OR
EXPENSES (INCLUDING LOST PROFITS OR SAVINGS) EVEN IF IT HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF.
9. Indemnification. Each party (the
“Indemnifying Party”) agrees to defend, indemnify and hold harmless the other
party and its directors, officers, employees, shareholders, assigns and agents
(the “Indemnified Party”) from and against any and all damages, liabilities,
losses, claims, demands, costs and expenses (including, without limitation,
reasonable attorneys' fees) which may be asserted against or sustained or
incurred by any of the Indemnified Party as a result of, arising out of or
relating to (i) any material breach or default by the Indemnifying Party of any
of the terms or provisions of this Agreement, including without limitation, any
use or misuse of the Back-end Processing Technology, or any negligence or errors
or omissions on the party of a party in the performance of its duties or
obligations hereunder, or (ii) any litigation involving the Indemnifying Party
not relating to this Agreement where the Indemnified Party has been made a party
to such litigation by virtue of the parties’ strategic
relationship. In addition, Kaching Kaching specifically agrees to
defend, indemnify and hold harmless the Company and Beyond Commerce from an
against any and all damages, liabilities, losses, claims, demands, costs and
expenses (including reasonable attorneys’ fees) resulting from, arising out of,
or relating to any misrepresentation, misstatement or omission by Kaching
Kaching with respect to the Back-end Processing Services, Order Processing
Services, including, without limitation, the capabilities of such
services.
10. Force
Majeure. Subject to the
limitations of this Agreement and except as specifically provided in this
Agreement to the contrary, neither of the parties hereto shall be liable for
defaults, delays or non-performance of any covenant, agreement, work, service,
or other act required under this Agreement to be performed by such party, or for
any damages, including, without limitation, any incidental or consequential
damages, arising out of the failure to perform any of its obligations, by reason
of any circumstance or condition beyond its control, including, without
limitation, default of third-party vendors, suppliers or service providers,
failure of power or other utilities, strikes, lockouts and other labor disputes
or other industrial disturbances, unavoidable accidents, acts of terrorism,
sabotage, embargoes, blockades, injunction or other administrative order,
governmental law or regulations (including changes in United States foreign
policy) which prevent or substantially interfere with the required performance,
condemnations, riots, insurrections, martial law, conflicts (declared or
undeclared), civil commotion or disorders and any adverse change in political,
economic or social conditions, fire, explosion, flood, earthquakes and other
casualty, acts of God, or any other cause beyond the control of such party
(each, a “Force Majeure Event”). In the event of any such Force
Majeure Event, the performance of any covenant, agreement, obligation, work or
service, or other act of the party affected by such Force Majeure Event under
this Agreement shall be excused for the period of delay and the period for the
performance of the same shall be extended by such period. Each of the
parties hereto shall take all reasonable steps to resume performance hereunder
with the least possible delay.
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11. Access to
Information. Kaching
Kaching hereby agrees to provide access to Company and its authorized
representatives (e.g., its auditors) during normal business hours to Kaching
Kaching’s accounting books and records in order to verify the accuracy of fees
paid to the Company. In the event that the Company discovers an
underpayment of fees for any three month period in excess of ten percent (10%),
then, in addition to promptly paying to the Company the amount of such
underpayment, Kaching Kaching shall reimburse the Company for its reasonable
costs incurred in conducting such audit.
12. Miscellaneous.
12.1 Entire
Agreement. Except as
otherwise provided herein, this Agreement constitutes the entire agreement
between the parties, and all prior negotiations, representations, or agreements
between the parties, whether oral or written, are merged into this
Agreement. This Agreement may only be modified by an agreement in
writing executed by the parties hereto.
12.2 Binding
Effect, Assignment. This Agreement shall inure
to the benefit of and be binding upon the parties and their respective
successors and assigns. Kaching Kaching may not assign this Agreement
without the prior consent of the Company.
12.3 Notices. All notices,
requests, demands, and other communications provided for hereunder shall be in
writing (or by telex or facsimile transmission) and shall be deemed to have been
duly given:
(i) On the
date of service if delivered in person or by telex or facsimile transmission
(with the telex or facsimile confirmation of transmission receipt acting as
confirmation of service when sent and provided that telexed or telecopies
notices are also mailed by first class, certified or registered mail, postage
prepaid); or
(ii) In
seventy-two (72) hours after mailing by first class, registered or certified
mail, postage prepaid, and properly addressed as follows:
| Beyond Commerce, Inc.: | Kaching Kaching, Inc.: | ||
| _________________________ | _________________________ | ||
| Facsimile: _________________ | Facsimile: __________________ | ||
| Attn:_____________________ | Attn: ______________________ |
or at
such other address as the party affected may designate in a written notice in
compliance with this Section.
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12.4 Arbitration. Except for
matters covered by Section 6(d) above, all disputes arising out of or in
connection with this Agreement shall be finally settled under the Rules of
American Arbitration Association (“AAA”) by one or more arbitrators appointed in
accordance with said Rules. The place of arbitration shall be Las
Vegas, Nevada. The parties hereby renounce any right of recourse that
they may have before the court of any jurisdiction except to obtain preliminary
or injunctive relief or enforce an award of the arbitrator.
If any
award rendered by AAA in accordance with this arbitration clause would not be
capable of being executed in the jurisdiction of a party against whom a claim
for payment is made or where that party resides or carries on business, neither
the award nor the said arbitration clause shall bar a party hereto from taking
action before the courts that have jurisdiction over such other
party.
12.5 Attorney
Fees. In the event that
any party shall bring an action or arbitration in connection with the
performance, breach or interpretation hereof, then the prevailing party in such
action, as determined by the court or other body having jurisdiction, shall be
entitled to recover from the losing party in such action, as determined by the
court or other body having jurisdiction, all reasonable costs and expenses of
litigation or arbitration, including reasonable attorneys fees, court costs,
costs of investigation and other costs reasonably related to such proceeding, in
such amounts as may be determined in the discretion of the court or other body
having jurisdiction.
12.6. Section
Headings. The various section headings are inserted for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement or any section hereof.
12.7 Severability. In the event that
any provisions, or portions thereof, of this Agreement are held to be
unenforceable or invalid by any court of competent jurisdiction, the validity
and enforceability of the remaining provisions, or portions thereof, shall not
be affected thereby.
12.8 Counterparts. The parties
hereto may execute this Amendment simultaneously, in any number of counterparts
or by annexing signature pages hereto, or on facsimile copies, each of which
shall be deemed an original, but all of which together shall constitute one and
the same document.
IN
WITNESS WHEREOF, the parties have executed this Agreement to be effective as of
the date first above written.
| Beyond Commerce, Inc. | Kaching Kaching Inc. | |
| By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | By:/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ | Name: ▇▇ ▇▇▇▇▇ | |
| Title: Chief Executive Officer | Title: President | |
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