SALES AND SERVICE AGREEMENT

 

THIS AGREEMENT, effective as of the , (hereinafter the “Effective Date”) between:

 

Verify Smart Corp., a Nevada Corporation, with its executive office at 1318 State Route 31, Suite 2, Annandale, New Jersey 08801, (hereinafter “VERIFY”), and BP360 PRO 360, LLC, a Wyoming Limited Liability Company, (hereinafter “BP360”) [cumulatively “the COMPANY”]; and , (hereinafter “CUSTOMER”)

 

WHEREAS:

  1. VERIFY is a corporation organized under the laws of Nevada; and
  2. BP360 is a Limited Liability Company, organized under the laws of Wyoming; and
  3. While BP360 is a separate legal entity, VERIFY, by separate Agreement, acknowledged herein, has authority to act on behalf of BP360 as if BP360 was a wholly owned subsidiary of VERIFY, for the purposes set out in this Agreement; and
  4. VERIFY and BP360 desire to move forward to offer proximity marketing hardware and technology services to CUSTOMER; and
  5. CUSTOMER desires to purchase the proximity marketing hardware, software and technology services from COMPANY; under the terms and conditions set out below;

NOW THEREFORE in consideration of $10.00 paid in hand, these premises and the respective covenants, agreements, representations, forbearances, warranties and indemnities of the parties herein contained, and for other good and valuable consideration (the receipt and sufficiency of which is hereby irrevocably acknowledged) the parties hereto covenant and agree as follows:

PLAIN ENGLISH EXPLANATION

Notwithstanding the terms set out below, if any court of competent jurisdiction is called upon to construe and interpret the intent of this Agreement, it is specifically agreed that the court can look to this “Plain English Explanation” for guidance in that construction.

The Company imports, owns and markets proximity marketing hardware (Bluetooth Low Energy (BLE) beacons and NFC cards) and software (mobile business card technology, geofencing technology and graphics) and related services (graphics development, configuration services and support services), designed to provide unique messaging services, to be utilized by Customer in marketing its goods and services to its ultimate users. The description of hardware and services above is intended to be representative and may not be exhaustive. It is the intent of this Agreement to describe the relationship between the parties and to provide for the sale and purchase of specific hardware, software and related services, more particularly described in Appendix “A”, appended hererto. This Appendix will describe in detail the specific hardware, software and related services to be sold and purchased and will further establish, for and during the Term of this Agreement, including any extensions of this Agreement, the sales price for such hardware, software and related services. The Customer, by signing this Agreement, memorializes their agreement to the descriptions and pricing of the listed hardware, software and related services.

This is not just a sales Agreement but rather a sales and service Agreement. It is intended that upon execution of this Agreement, Company will deliver and install, if necessary, at the Customer’s location, the hardware, software and equipment described in Appendix “A,” and will insure that the equipment and listed hardware is functioning correctly for the purposes intended.

The equipment and software listed in Appendix “A” is intended to permit CUSTOMER to utilize various BP360 proximity marketing products (such as mobile business card technology, electronic messaging, ad campaigns, geofencing, etc.). COMPANY will utilize its own resources and its relationships with third party corporations to ensure that these proximity marketing technologies operate as intended.

The services listed in Appendix “A” is a list of the Services to be provided during the term of this Agreement, including any extension thereof, which Appendix further describes the Services to be provided under this Agreement, and the servicing fees to be charged by the COMPANY and paid monthly by the CUSTOMER.

For a period of twelve (12) months, from the date of purchase, the COMPANY agrees to replace or repair any defective equipment, and hardware (due to normal wear and tear) installed and listed in Appendix “A” and any supplemental and additional hardware or equipment that may be purchased after the Effective Date of this Agreement.

While the hardware, software and equipment sold and purchased pursuant to this Agreement becomes the property of the Customer, it is sold and received pursuant to the restrictive covenant that the hardware of equipment and software will not be remarketed or sold to any other entity so as to deprive COMPANY of the Service fees associated with the use of the software, equipment and hardware.

CUSTOMER agrees to use the platform provided by COMPANY in compliance with federal. state and local laws and agrees to indemnify and hold COMPANY harmless for and from any damage, cost or action brought as a result of any alleged violation of such federal state or local law.

CUSTOMER must receive the approval of any content intended to be broadcast over the COMPANY platform. This consent will be liberally granted, but CUSTOMER anticipates that any request to broadcast images that are graphic, pornographic or otherwise unacceptable that such consent may be withheld. COMPANY retains the right to seek enforcement of this consent requirement by injunction in acknowledgment that mere money damages are insufficient as a remedy for violation.

  1. TERM AND TERMINATION.
    • This Agreement shall have an Initial Term of twelve (12) months. This Agreement will automatically renew unless either party notifies the other not less than 30 days prior to the expiration of this initial Term of an intent not to renew. The initial Term shall commence on the Date of Equipment Configuration. If the CUSTOMER breaches any of the provisions of this Agreement, COMPANY may also take further actions including termination or modification of this Agreement.
    • Without cause, the CUSTOMER may terminate this agreement on 30 days’ notice to the COMPANY.
      • Upon such voluntary termination the COMPANY will discontinue service to the CUSTOMER.
    • If the CUSTOMER is in default of the payment obligation for a period of in excess of ten (10) days, the COMPANY, in its sole discretion may exercise its right to either:
      • Terminate the Agreement and terminate the Service; and/or
      • Impose a 5% per month interest penalty on any outstanding balances.
    • Termination of a “Pilot Program”: Where the CUSTOMER has entered into this Agreement for a “Pilot Program”, the CUSTOMER may terminate this Agreement on two (2) days’ notice.
    • In the event of a termination pursuant to the terms of this Agreement, CUSTOMER shall be liable for the Service fee on a pro rata basis for the days that Service was provided.
    • The pricing for the software, hardware, equipment and Services, subject to this Agreement is set out in Appendix “A.” The upfront cost of the software, configuration, graphics design, hardware and equipment shall be due upon completing the entry of your order in the COMPANY’S ecommerce system.  The CUSTOMER agrees to automatic billing and must provide either a PayPal account or a viable credit or debit card for processing.  The cost of the ongoing Services listed in Appendix “A” shall be paid each month, in advance, with the first payment being processed on the 1st or 15th of the month depending on whichever is closest to the date of the order being processed.  All subsequent monthly Service fees are to be paid in advance and will be due each month on the designated renewal day (1st or 15th of the month).
      • As used in this Agreement, the “Date of Equipment Configuration” shall mean the date that, after the COMPANY has configured the proximity marketing equipment and related software, beta tested the equipment and placed it with a shipping company for delivery to the CUSTOMER. The COMNPANY will activate the service this same date. If the CUSTOMER elects to take personal delivery of the Equipment, then the date of acceptance of the Equipment shall be deemed to be the Date of Configuration.
    • By COMPANY. To induce the CUSTOMER to accept the delivery of the software, hardware and equipment described in Appendix “A,” and to agree to pay for the services also outlined in Appendix “A,” and make the payment required hereunder, the COMPANY hereby represents and warrants the following to the CUSTOMER, on the date hereof and the Effective Date:
      • The COMPANY is cumulatively described as VERIFY and BP360, herein. VERIFY is authorized on behalf of itself and BP360 to enter into this Agreement and any additional agreements as may be required to carry out the purposed defined herein. COMPANY has the right and full authority to market the described hardware and equipment and to provide the described services.
      • The COMPANY is unaware of any claim or action, asserting any claim of ownership to the platform marketing by COMPANY herein. COMPANY warrants that it has the capacity to deliver, install and maintain the hardware and equipment described in Appendix “A.”
    • By CUSTOMER. The Assignee covenants, warrants, and represents to the COMPANY, the following, on the date hereof and the Effective Date:
      • The COMPANY WILL USE THE SOFTWARE, HARDWARE AND EQUIPMENT DESCRIBED IN Appendix “A,” and the Services described and listed in Appendix “A,” in compliance with all federal, state and local laws and ordinances.
      • CUSTOMER agrees to indemnify and hold harmless COMPANY from and against any claim, chose or action arising out of any alleged violation of any federal, state or local law or ordinance. Such indemnification shall specifically include, but not be limited to any costs of attorney fees incurred in defending any such action.
    • By Each Party. Each party represents and warrants to the other that it has been duly authorized to execute and deliver this Agreement, and to perform its obligations under this Agreement.
    • Any notice, demand, consent, approval, request, or other communication or document to be provided hereunder to a party hereto shall be (a) in writing, and (b) deemed to have been provided (i) five (5) business days after being sent as certified or registered mail in the United States mail, postage prepaid, return receipt requested, to the address of the party set forth in this Agreement or to any other address in the United States of America as the party may designate from time to time by notice to the other party, or (ii) upon being given by hand or other actual delivery to the party.
  1. DISCLAIMER OF WARRANTIES.
    • The COMPANY, its advertisers and licensors make no representation or warranties about any Service or Products received by CUSTOMER (other than what has been outlined within this Agreement). All information and use of information provided to CUSTOMER is delivered “as is” without warranty of any kind. The Company, advertisers and/or its licensors hereby disclaim all warranties, the information received by CUSTOMER, and any Services or Products received through this Site, including all express, statutory, and implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. The Company, advertisers and/or its licensors do not warrant that the contents or any information received by CUSTOMER are accurate, reliable or correct; that this information will be available at any particular time or location; that any defects or errors will be corrected; or that the contents of any information received by CUSTOMER is free of viruses or other harmful components. Your use of this information is solely at your risk. CUSTOMER agrees that it has relied on no warranties, representations or statements other than in this Agreement. Because some jurisdictions do not permit the exclusion of certain warranties, these exclusions may not apply to you but shall apply to the maximum extent permitted by law of your jurisdiction.
      • As used in this Agreement, the term “products” used in Paragraph 5.1 above shall include any and all equipment, hardware, firmware, installation fixtures or related materials, regardless of the identity or location of the original vendor of such materials. If the need arises to construe the meaning of the term “products” it shall be afforded the broadest and most inclusive meaning possible.
  1. LIMITATION OF LIABILITY.
    • UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL THE COMPANY, INCLUDING ANY OF OUR AFFILIATES AND/OR SUBSIDIARIES, OUR LICENSORS OR LICENSEES, OR ANY OF THE FOREGOING ENTITIES’ RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, PERSONAL INJURY (INCLUDING DEATH) AND PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, COMPANY’S PRODUCTS OR SERVICES OR ANY OTHER PERSON OR ENTITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR THE PARTICULAR SERVICE OR PRODUCT CAUSING SUCH LIABILITY. MOREOVER, UNDER NO CIRCUMSTANCES SHALL THE COMPANY, OUR LICENSORS OR LICENSEES, OR ANY OF THE FOREGOING ENTITIES’ RESPECTIVE RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS OR SUPPLIERS, BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM AN ACT OF FORCE MAJEURE OR CAUSES BEYOND OUR OR THEIR REASONABLE CONTROL.

THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION AND ELSEWHERE IN THIS AGREEEMNT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTIAL OR CONSEQUENTIAL DAMAGES, THE COMPANY, OUR ADVERTISERS AND/OR ITS RESPECTIVE LICENSORS’ LIABILITY IN SUCH JURISDIUCTIONS SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITED BY LAW OF YOUR JURISDIUCTION.

    • Both parties shall be permitted to assign, transfer, and subcontract its rights and/or obligations under this Agreement without any notification or consent required by the other party.
    • Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
    • Complete understanding. This Agreement represents the complete understanding between the parties as to the subject matter hereof, and supersedes any prior negotiations, representations, guarantees, warranties, promises, statements, or agreements, either written or oral, between the parties hereto as to the same.
    • This Agreement may be amended by and only by an instrument executed and delivered by all parties hereto.
    • Waiver. No party shall be deemed to have waived any right which it holds hereunder unless the waiver is made expressly and in writing (and, without limiting the generality of the foregoing, no delay or omission by any party in exercising any such right shall be deemed a waiver of its future exercise). No waiver shall be deemed a waiver as to any other instance or any other right.
    • Applicable law and venue. This Agreement shall be governed by and construed under the laws of the State of Florida as applied to agreements among Florida residents, made and to be performed within the State of Florida, without giving effect to conflicts of laws principles. Exclusive venue for all actions arising from this Agreement shall be the Courts of Orange County Florida.
    • Headings. The headings of the sections, subsections, paragraphs, and subparagraphs hereof are provided herein for and only for convenience of reference and shall not be considered in construing their contents.
    • As used herein, (a) the term “person” means a natural person, a Assignee, a corporation, a partnership, and any other form of legal entity; and (b) all reference made (i) in the neuter, masculine, or feminine gender shall be deemed to have been made in all genders, (ii) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well, and (iii) to any Section, subsection, paragraph, or subparagraph shall, unless therein expressly indicated to the contrary, be deemed to have been made to such Section, subsection, paragraph, or subparagraph of this Agreement.

As to any ambiguity or disagreement ase to the construction of this Agreement, reference should be made to the “Plain English Explanation” in determining the intent of the parties and in enforcing that intent.No determination by any court, governmental body or otherwise that any provision of this Agreement or any amendment hereof is invalid or unenforceable in any instance shall affect the validity or enforceability of (a) any other provision thereof, or (b) that provision in any circumstance not controlled by the determination. Each such provision shall be valid and enforceable to the fullest extent allowed by and shall be construed wherever possible as being consistent with, applicable law.

  • Further Assurances. The parties shall cooperate with each other and shall execute and deliver, or cause to be delivered, all other instruments and shall take all other actions, as the parties hereto may reasonably request from time to time in order to effectuate the provisions hereof.
  • Dispute Resolution. All disputes and claims relating to COMPANY, its products and services, the rights and obligations of CUSTOMER, or any other claims or causes of action relating to the performance of either CUSTOMER or COMPANY under the Agreement or the COMPANY Policies and Procedures shall be settled totally and finally by arbitration as enumerated in the COMPANY Policies and Procedures in Orlando, Florida or such other location as COMPANY prescribes, in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association, except that all parties shall be entitled to discovery rights allowed under the Federal Rules of Civil Procedure. Additionally, you agree not to initiate or participate in any class action proceeding against COMPANY, whether in a judicial or mediation or arbitration proceeding, and you waive all rights to become a member of any certified class in any lawsuit or proceeding. This agreement to arbitrate shall survive any termination or expiration of the Agreement. Nothing in the Agreement shall prevent COMPANY from applying to and obtaining from any court having jurisdiction a right of attachment, garnishment, temporary injunction, preliminary injunction, permanent injunction or other equitable relief available to safeguard and protect its interest prior to, during or following the filing of any arbitration or other proceeding or pending the rendition of a decision or award in connection with any arbitration or other proceeding.
  • Time Limitation. If a Customer wishes to bring an action against the Company for any act or omission relating to or arising from the Agreement, such action must be brought within one (1) year from the date of the alleged conduct giving rise to the cause of action. Distributor waives all claims that any other statutes of limitations apply.

If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the balance of the Agreement will remain in full force and effect. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. The provisions of this Agreement, including all documents incorporated herein by reference, embody the whole agreement between you and COMPANY and supersedes any prior agreements, understandings and obligations between you and COMPANY concerning the subject matter of your contract with COMPANY.

IN WITNESS WHEREOF, each party hereto has executed this AGREEMENT or caused it to be executed on its behalf by its duly authorized representatives, the day and year first above written.

 

 

VERIFY SMART CORP. CUSTOMER
By: By:
Name: Louie Pingitore Name:
Title: CEO Title:
Date: Date: