1.   KUKUI Responsibilities.

1. Provision of Services. Subject to and conditioned on Clients’ and its Users' compliance with this Agreement, the Documentation and the applicable Order, Kukui will (a) make the Services available to Client pursuant to this Agreement, and the applicable Order and Documentation, (b) provide applicable Kukui standard support for the Purchased Services to Client, and/or upgraded support if purchased, and (c) provide the Services in accordance with laws and government regulations applicable to Kukui’s provision of its Services to its customers generally (i.e., without regard for Client’s particular use of the Services).
2. Protection of Client Data. Kukui will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, as described in the KUKUI Privacy Policy, which may be amended from time-to-time by Kukui. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Client Data (other than by or to Client or Users). For a period of 30 days after the effective date of termination or expiration of this Agreement or a particular Service, Kukui will make Client Data available to Client for export or download. After such 30-day period, Kukui will have no obligation to maintain or provide any Client Data, and will thereafter delete or destroy all copies of Client Data in Kukui’s systems or otherwise in Kukui’s possession or control, unless legally prohibited.
3. Kukui Personnel. Kukui may from time to time in its discretion engage third parties to perform services related to this Agreement. Kukui will be responsible for the performance of its personnel (including its employees and third party contractors) and their compliance with Kukui’s obligations under this Agreement, except as otherwise specified in this Agreement.
4. Changes. Kukui reserves the right, in its sole discretion, to make any changes to the Services and Documentation that it deems necessary or useful to: (a) comply with applicable law or (b) maintain or enhance (i) the quality or delivery of Kukui's Services to its customers, (ii) the competitive strength of or market for Kukui's Services or (iii) the Services' cost efficiency or performance.

2.   Client Responsibilities.

1. Client will

                i.    be responsible for Users’ compliance with this Agreement and Documentation;

               ii.    be responsible for the accuracy, quality and legality of Client Data (including that such Client Data is not infringing, obscene, threatening, libelous, defamatory, tortious, or otherwise harmful to third parties), the means by which Client acquired Client Data, Client’s use of Client Data with the Services, and the interoperation of any Third-Party Applications with which Client uses Services,

              iii.    use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Kukui promptly of any such unauthorized access or use.

iv.   use Services only in accordance with this Agreement, Documentation, the Order and applicable laws and government regulations,

               v.    not use the Services beyond the term set forth in the Order, or permit any third party to view or copy the Services during or after the expiration of the term set forth in the Order; and vi. comply with terms of service of any Third-Party Applications with which Client uses with the Services.

Any use of the Services in breach of the foregoing by Client or Users that in Kukui’s judgment threatens the security, integrity or availability of Kukui’s services, may result in Kukui’s immediate suspension of the Services, however Kukui will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to any such suspension.

b.      Client acknowledges and agrees

                i.    The average time to launch is sixty days of the contract date. The Client will be fully responsible for any delays caused by requests made, including any changes to the platform, requests for additional design options, or a failure to provide any information requested by Kukui. The Client will assume full financial responsibility for such delays, and Kukui will not be asked to pause billing or refund any amount to the Client.

               ii.    The Client including any Users agrees to conduct themselves professionally towards Kukui and at no time will engage in abusive, violent, destructive, menacing, threatening or harassing behavior.

              iii.    The Client understands that effort will be required on Client’s and its User’s part to benefit from the All-in-One Success platform, including occasionally reviewing stats provided by Kukui, answering phone calls effectively, proving value elements and/or coupons, and working to improve related business systems.

              iv.    Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Kukui regarding future functionality or features.

               v.    Client Data may be processed by third parties in connection with the Services and Client hereby provides its consent with respect to such processing of Client Data.

vi.    Client agrees to obtain the consent of the Kukui in the event Client grants access to the Services to any person other than a User.

              vii.    You consent to the receipt of marketing materials and service updates using an auto-dialer or via SMS messaging.

c.      Usage Restrictions. Client will not (a) make any Service available to anyone other than Client or Users, or use any Service for the benefit of anyone other than Client or its Affiliates, unless expressly stated otherwise in an Order or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service , or include any Service in a service bureau or outsourcing offering, (c) use a Service or a Third-Party Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or a Third-Party Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of Kukui intellectual property except as permitted under this Agreement, an Order, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy any Service except as permitted herein or in an Order or the Documentation, (j) frame or mirror any part of any Service, other than framing on Client's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, or (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service.

3.   Call Tracking and Text Messaging.

a.      Tracking. Client authorizes Kukui to record phone calls on Client’s behalf with dedicated tracking number with whisper feature displayed on the website and other marketing endeavors. The Client will notify its employees that incoming calls may be recorded.

b.      Messaging. To the extent Client has purchased Text Messaging Services, or related services, pursuant to any Order, Client hereby agrees to the [Text Messaging Services Agreement] attached hereto and incorporated into this Agreement. 

4.   Fees and Payment.

a.      Fees. Client will pay all fees specified in the Order. Except as otherwise specified herein or in an Order, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, even if Client stops using a Service, and (iii) quantities purchased cannot be decreased during the relevant subscription term. All pricing terms are confidential, and Client agrees not to disclose them to any third party.

b.      Payment. Client will provide Kukui with valid and updated credit card information, with a valid purchase order, with authorization to use Automated Clearing House electronic debit (“ACH”) transactions to effect payment from the bank designated by Client, or alternative document reasonably acceptable to Kukui. If Client provides credit card information or ACH authorization to Kukui, Client authorizes Kukui to charge such credit card or ACH for Purchased Services either (i) listed in the Order at the beginning of each month during the subscription term and any renewal subscription term(s) as set forth in Section 5 below and/or (ii) in connection with an acceleration as provided in Section 4(e) below. Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order. If the Order specifies that payment will be by a method other than a credit card or ACH, Client shall provide payment monthly, in advance or otherwise in accordance with the relevant Order. Client is responsible for providing complete and accurate billing and contact information to Kukui and notifying Kukui of any changes to such information.

c.      Change to Existing Services. 

                i.    Kukui in its sole discretion and at the request of Client, may add Services (“Additional Services”) to an existing Order by executing an additional Order (“Additional Order”). Such Additional Services will be subject to the following: (i) the Additional Services and the Additional Order will be coterminous with the service term set forth in the preexisting Order (either the service term or auto-renewal term, if applicable); (ii) the fees for the Additional Services will be the fees under the Additional Order; and (iii) any Additional Services added in the middle of a billing month will be charged on a pro-rated basis for that billing month.

               ii.    Kukui in its sole discretion and at the request of Client, may upgrade or downgrade Services contained in an existing order by executing an amended Order (“Amended Order”). The suite of Services set forth in such Amended Order (“New Services”) and those services retained by Client (“Retained Services”) will be subject to the following: (i) the term with respect to the New Services, Retained Services, and the Amended Order shall be extended to the full term set forth in the preexisting order replaced by the Amended Order; and (ii) the fees for the New Services will be the fees under the Amended Order.

d.      Overdue Charges. If any invoiced amount is not received by Kukui by the due date, then without limiting Kukui’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Kukui may condition future subscription renewals and Orders on payment terms shorter than those specified in the “Invoicing and Payment” section above.

e.      Suspension of Service and Acceleration. If any charge owing by Client under this Agreement is 30 days or more overdue, Kukui may, without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit ACH whose payment has been declined, Kukui will give Client at least 10 days’ prior notice via email to the account representative set forth in the Order that its account is overdue, before suspending services to Client. In the event Kukui is required to suspend Services due to Client’s non-payment after which Client pays all amounts due and owing to Kukui, Kukui may charge an additional $500 as a Service reinstatement fee.

f.       Post-Termination or Expiration Usage. In the event Client continues to utilize or otherwise access the Services (or permits any third party to utilize or otherwise access the Services whether or not on Client’s behalf) after termination or expiration of this Agreement or any Order, for any reason, Client agrees to pay Kukui an amount equal to the highest monthly fee paid by Client for the Services in the twelve month period immediately prior to such termination or expiration multiplied by twelve (“Post-Termination Fee”). Client authorizes Kukui to charge Client’s credit card on file or direct debit ACH for any such Post-Termination Fee.

g.      Payment Disputes. Kukui will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

h.      Taxes. Kukui's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder. If Kukui has the legal obligation to pay or collect Taxes for which Client is responsible under this section, Kukui will invoice Client and Client will pay that amount unless Client provides Kukui with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Kukui is solely responsible for taxes assessable against it based on its income, property and employees.

5.   Term, Termination and Renewal of Agreement.

This Agreement shall remain effective for the period set forth under Service Term in the Order, and shall automatically renew as long as Kukui provides Services to Client. In the event Client fails to uphold its obligations under this Agreement, Kukui may, in its sole discretion, terminate this Agreement, the Order, and cancel all Services without further notice to Client. Client agrees that Kukui will not be liable for any damages, in contract or tort, as a result of such termination. All sales are final and fully earned. There are no refunds for contracted Services for any reason. If Client decides to discontinue Kukui Services for any reason, Client remains fully liable and responsible for all sums due under this Agreement. Any terms of this Agreement that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this agreement, will survive, including, without limitation, Section 2(v), Section 4, Section 5, Section 6, Section 7, Section 8, Section 9 and Section 12.

6.   LIMITATION OF WARRANTIES.

ALL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. KUKUI DISCLAIMS ANY AND ALL OTHER WARRANTIES OBLIGATIONS OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, COVENANT’S TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

7.   Limitation of Liability.

a.      IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COST OF COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

b.      IN NO EVENT SHALL KUKUI’S OR ITS AFFILIATES’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE; PROVIDED HOWEVER, CLIENT HEREBY ACKNOWLEDGES AND AGREES THAT KUKUI SHALL NOT HAVE ANY LIABILITY TO CLIENT OR ITS AFFILIATES IN CONNECTION WITH ANY FORM PRIVACY POLICY THAT KUKUI MAY PROVIDE TO ITS CLIENTS IN CONNECTION WITH THE SERVICES.

8.   Intellectual Property.

a.      Client Intellectual Property. The Client will maintain any existing copyrights on any original writings, and/or photos used in conjunction with the website provided as part of this agreement (“Client Intellectual Property”). Client grants Kukui and its applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Client Data and Client Intellectual Property, each as appropriate for Kukui to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.

b.      Kukui Intellectual Property. Subject to the limited rights expressly granted hereunder, Kukui, its Affiliates, its licensors and providers reserve all of their right, title and interest in and to the Services (other than any Client Intellectual Property incorporated therein), including all of their related intellectual property rights including, without limitation, Documentation, website graphics, design, source code, inventions (whether or not protected under patent laws), works of authorship, moral rights, software, trademarks, trade names, trade dress, trade secrets, publicity rights, copyrights, know-how, ideas (whether or not fixed in a tangible medium of expression or protected under trade secret laws), all Services provided or any portions thereof, as well as all data Kukui determines, in its sole discretion, to maintain relating to Services provided, including, but not limited to, hits per day, and other types of statistics available to Kukui (collectively, “Kukui Intellectual Property”). No rights are granted to Client hereunder other than as expressly set forth herein. The Client may not modify, rent, lease, loan, sell, distribute, license or create derivative works based on any of Kukui’s Intellectual Property (either in whole or in part, whether such Intellectual Property is owned or licensed by Kukui). Kukui will maintain a small logo and link on the footer of the website for design credit purposes.

c.      License by Client to Kukui. Client grants to Kukui a worldwide, perpetual, irrevocable, royalty- free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the operation of Kukui’s services.

9.   Confidentiality.

a.      Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Client includes Client Data; Confidential Information of Kukui includes the Services, and this Agreement and all Orders (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Kukui services.

b.      Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Kukui may disclose the terms of this Agreement and any applicable Order to a subcontractor or Third-Party Application provider to the extent necessary to perform Kukui’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

c.      Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

10.  Indemnification.

a.      Client agrees to defend, indemnify, and hold harmless Kukui and its Affiliates, at Client’s expense, against any claim, demand, suit, liability, or proceeding or brought against Kukui or its Affiliates by a third party (a) related to any information or materials provided by Client for the Service, including any Client Data (including the contents of such Client Data) or Client Intellectual Property (including that any such information infringes upon any valid United States or international patent, copyright, trademark, trade secret, or other intellectual property right), (b) alleging that a Third-Party Application provided by Client, or the combination of a Third-Party Application provided by Client and used with the Services, infringes or misappropriates such third party’s intellectual property rights (c), or (d) arising from Client’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order.

b.      In the event Client receives a third party claim alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights, Kukui shall, in its sole discretion, either (i) modify the Services so that they are no longer claimed to infringe or misappropriate such third party’s intellectual property rights, (ii) obtain a license for Client’s continued use of that Service in accordance with this Agreement, or (iii) terminate Client’s subscriptions for that Service upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated Services. This Section 10(b) shall be the exclusive remedy for any third party claims against Client alleging the Services infringe or misappropriate any third party’s intellectual property rights.

11.  Entire Agreement.

This Agreement and the Order, including any exhibits, estimates, invoices attached hereto or thereto are deemed incorporated herein as though fully set forth, constitutes the entire agreement between the Parties concerning the Services to be provided by Kukui to Client, supersedes all prior and contemporaneous communications or agreements, written or oral, concerning the Services to be provided by Kukui to Client, and is intended by the Parties to be a complete and exclusive statement of the terms of the agreement between them concerning the Services to be provided by Kukui to Client. This Agreement may only be modified by a writing signed by authorized representatives of both Parties.

12.  Other Terms.

a.      Definitions.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Client Data” means electronic data and information submitted by or for Client to, or in connection with, the Services.

“Documentation” means all documents related to the Services provided by Kukui to its Clients including, usage guides, policies, Client survey responses, service level agreements and support agreements.

“Purchased Services” means Services that Client or Client’s Affiliate purchases under an Order or online purchasing portal.

“Services” means the products or services that are ordered by Client under an Order or online purchasing portal. “Services” exclude Third-Party Applications.

“Third-Party Application” means a Web-based, mobile, offline or other software application functionality that interoperates with a Service and that is provided by Client or a third party.

“User” means an individual who is authorized by Client to use a Service, provided, users shall only include employees of Client.

b.      Assignment. Client may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without Kukui’s prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

c.      Governing Law, Forum/Venue and Arbitration Clause. This Agreement, all acts and transactions pursuant here to, and the rights and obligations of the Parties hereto shall be governed, construed, and interpreted in accordance with the laws of the State of Nevada without regard to any conflict of law principles. If there is ever a dispute arising under this Agreement, the Parties agree to submit the dispute to binding AAA arbitration in the Las Vegas, Nevada. The Parties hereby consent to the jurisdiction of such arbitration and waive any objection to such method of dispute resolution. The prevailing Party in such arbitration shall recover all expenses incurred, including reasonable attorneys’ fees and arbitration costs. The UN Convention on Contracts for the International Sale of Goods does not apply.

d.      Independent Contractors; No Attorney Client Relationship. The parties are independent contractors with respect to each other and Client hereby disclaims any attorney client relationship between Kukui and Client and Client acknowledges and Kukui is not providing legal advice with respect to any Services.

e.      Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.

f.       Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.

g.      Order of Precedence. If there is an inconsistency between this Agreement and an Order or any other agreement incorporated into this Agreement, this Agreement shall control.New Paragraph