HomeMy Public PortalAboutEDACP 2020-06-23Economic Development Advisory Committee
Regular Meeting Agenda
Fraser Town Hall, 153 Fraser Avenue and Virtually
Tuesday,June 23, 2020
9:00 AM - 11:00 AM
NOTE: Times are approximate and agenda subject to change
Virtual Meeting Information
https://us02web.zoom.us/j/89501535954
Meeting ID: 895 0153 5954
Phone Number 1 -253 -215 -8782
Roll Call
Approval Of Agenda
Discussion Items
Bandwango
Fraser, CO - Bandwango Proposal - 6.12.20.Pdf
Fraser, CO Bandwango Partner Agreement_6.12.20.Pdf
Business Economic Recovery
Other Business
Future Agenda Items
Adjourn
Members of the Fraser Board of Trustees may attend this meeting.
1.
2.
3.
a.
Documents:
b.
4.
5.
6.
Fraser, Colorado Digital Experience Passes
Based on the destination and on conversations with Sarah Wieck, Bandwango proposes the
creation of a gamified “Mountain Mural Festival pass”, alongside a Savings Pass for all of your
membership businesses that can be used by residents and visitors alike. Later, we see a gamified
outdoor focused pass like a “Hike, Bike & Beers” as ideal for your destination. Any or all of these
passes elevate the Fraser, Colorado brand and conveniently lets your residents and visitors
experience more of what Fraser has to offer, while having fun doing it! All of these experiences
would be available and delivered to customers under the trusted Fraser, Colorado brand.
Delivered Instantly – No Apps to Download
Tickets, tours, trails and multiple pass products from any of your Fraser, Colorado passes would be
delivered instantly via SMS and email – available via both print-at-home and mobile. The
Bandwango platform is an exclusive lightweight web application framework that allows your
customers to begin enjoying their experiences instantly. No app stores, no passwords and no
downloads required.
Conversion and Economic Impact
Frasercolorado.com features fantastic inspirational content that pulls potential visitors further down
the decision-making funnel. Now let’s add a call-to-action and bottom-of-the-funnel conversion to
pull the inspired parties all the way through!
Customers who purchase or sign up for these passes/trails then visit and spend money at the
participating businesses. Customer activity is tracked through Bandwango: who they are, where
they are from, their mobile number and/or email, what businesses they visited and when, what they
redeemed and the estimated direct spending at each individual business.
All of this data (and much more) is provided to you in reports from Bandwango. You are now able to
report the success of marketing investment all the way down to reporting to an individual business
how many visitors you delivered through their doors.
Unlimited Number of Passports, Trails, Ticketing
Bandwango will create and manage an unlimited number of passports, trails and ticketing as part of
Fraser, Colorado’s license. The total year one cost of the license is $10,000 with zero potential
additional fees/costs. We’ve extended year one to 15 months, giving you an additional three months
for free! Year two will be $8,500.
Experience Management Operational Partner
Bandwango is more than just the platform and technology that delivers experiences, we are your full
operational partner that manages the end-to-end logistics of your marketplace.
Our services are broken down into the following key initiatives:
Merchant Outreach/On-boarding: We onboard merchants into our platform through our proven
CRM-driven process. This includes the development of call/email scripts (working with you), custom
sign-up forms, redemption instruction sheets, and one-on-one training sessions with individual
merchants. All of our agreements include unlimited merchant on-boarding for the duration of your
contract.
Passport Setup and Configuration: Our onboarding fee allows us to develop a variety of
passes as well as micro-sites where your website's header will be custom coded and we will set
up a custom subdomain to maintain your domain authority as well as analytics reports.
Ultimately, we deliver to you a system that is ready to launch.
Data Analytics Setup: We will set up a custom reporting dashboard for you based on the type
of data you would like to visualize and the insights you are looking to gain from our system.
Additionally, Bandwango configures your Google Tag Manager and Google Analytics accounts
to accurately pass data into your existing analytics system.
Customer Service:We provide 100%customer service to you and your staff,merchants,and
consumers.Support is provided through multiple channels including email,text,live chat,and
phone.
Managed Accounting (if applicable): If you plan to create transactions through Bandwango
DXE, we provide all managed accounting services including collection of funds, payment
disbursement via check or ACH, and distribution of excess funds to you on a monthly basis.
Client Services Manager: To make sure you receive the focus you deserve; we will assign a
dedicated project manager to your passport programs.
Client Success Manager: To ensure that your utilization of the Bandwango platform is
successful and meets your objectives, a dedicated success manager will be assigned to your
account to regularly review performance, data, present new functionality, and identify new
growth opportunities.
Understanding of Client Needs
Every Destination Marketing organization is unique.Each has its own distinct audiences,tone,
personality,and set of business objectives.Bandwango will conduct a preliminary consultation to
dive deeper into your objectives and goals.We will then develop a strategy and execution plan
accordingly. We focus on streamlining logistics.
For a full overview of the Bandwango platform, please refer to the
Bandwango Overview Presentation
These Mutual Con dentiality & Non-Disclosure Agreement and Standard Terms & Conditions (collectively
referred to herein as the “Agreement”) are made and entered into by and between Bandwango, Inc., a Delaware
Corporation (“Bandwango”) and _______________________________________________________________ (“Partner”)
and together with Bandwango, the "par ties" and each a "party”.
Standard Terms & Conditions
1) Partner’s Duties and Responsibilities
a) Partner will make available to Bandwango, promptly on
request by Bandwango, information, assets, and materials
necessary for Bandwango to provide its Services.
b) Partner will designate a representative to Bandwango to
facilitate each party’s performance under this Agreement
including, but not limited to, acting as a contact for any and all
matters and communications concerning the Agreement.
2) Effective Date
This Agreement shall not become effective until execution of
this Agreement by both parties.
3) License
a) Subject to the terms hereof, Bandwango hereby grants to
Partner a limited, non-exclusive, non-transferable, non-sub
licensable license (the “License”) to use its Destination
Experience Engine software (the “Licensed Program”) and
associated services (“Services”). The term “Licensed
Program” shall also include any updates, modi cations,
improvements and add-ons of the Licensed Program licensed
to Partner by Bandwango.
b) Use of Licensed Programs. The parties intend that Partner
shall use Licensed Program in connection with the
administration and facilitation of its program. The Licensed
Program will be accessed through Bandwango and/or Partner
owned website(s). Partner may not assign, transfer,
sublicense, sell or otherwise transfer or distribute copies of
the Licensed Program to others. Partner may not modify or
translate the Licensed Program or the associated
documentation (“Documentation”) without the prior written
consent of Bandwango.
c) Partner may not reverse assemble, decompile, reverse
assemble, reverse engineer, reverse compile or otherwise
attempt to create the source code from the Licensed
Program.
d) Copyright and Ownership. The Licensed Program and
Documentation are copyrighted by Bandwango. Partner
agrees that it will not own or acquire any claim or right of
ownership to the Licensed Program or to any related patents,
copyrights, trademarks or other intellectual property.
Bandwango retains all rights in
and to the Licensed Programs not expressly granted in this
Terms and Conditions. Title, ownership, and all rights
(including without limitation intellectual property rights) in and
to the Licensed Program shall remain with Bandwango.
Except for those rights expressly granted herein, no other
rights are granted, whether expressed or implied.
e) Service and Support. During the term of this Agreement,
Bandwango will provide technical support, technical
maintenance, correction of technical errors and bugs,
consultation, training, and the Services associated with the
intended operation of the Licensed Program. Such Service
shall include the processing of credit card transactions,
facilitating payments for redemptions to participating
destination pass attractions, maintaining books and records
of all transactions in accordance with Generally Accepted
Accounting Principles, and enabling Partner to generate
reports on purchasers and redemptions useful to Partner for
marketing, pricing and other such purposes. Bandwango
shall maintain agreements with all merchants participating in
the pass program. If Partner noti es Bandwango of a program
error respecting the Licensed Programs, or Bandwango has
reason to believe that error exists in the Licensed Program,
Bandwango shall at its expense verify and attempt to correct
such error within seven (7) working days after the date of
noti cation. The following implementation services will be
provided upon execution of this agreement:
i) Partner/Venue Activation and Setup:
(1) Account provisioning
(2) Payments/pricing setup, product/perk uploading,
deal creation
ii) Customized User Experience:
(1) Custom account con guration (users, groups,
permissions, preferences, etc.) according to your
speci c requirements and work ows
(2) Setup of backend administration panel, venue
redemption portal
(3) Branded customer mobile-friendly checkout
website
(4) Branded consumer mobile pass
iii) Customized On-boarding:
(1) Administrator training session(s)
(2) Venue training session(s)
f) License to Partner Information. Partner hereby grants
Bandwango non-exclusive, non-transferable, limited license to
all Partner trademarks, copyrights, data, copyrighted
materials, content and other intellectual property provided by
Partner to Bandwango to be incorporated in or used in
connection with the Licensed Program (“Partner Content”)
throughout the term of this Terms and Conditions. In addition,
Bandwango may advertise that Partner is a customer of
Bandwango and use such Partner Content in connection with
any Bandwango sales efforts or marketing materials. Partner
hereby represents and warrants that the Partner Content does
not incorporate or otherwise infringe upon the rights of any
person or organization. Partner acknowledges and agrees
that Bandwango is not responsible for examining or
evaluating content, accuracy, completeness, timeliness,
validity, copyright compliance, legality, decency, quality or any
other aspect of such Partner Content. Bandwango does not
warrant or endorse and does not assume and will not have
any liability or responsibility to Partner or any other person for
any Partner Content. Partner will indemnify, defend and hold
harmless Bandwango from and against any and all claims,
costs, damages, losses, liabilities and expenses (including
reasonable attorneys' fees and costs) arising out of or in
connection with any claim arising from or relating to any
breach by Partner of this License or any third party claims
resulting from the failure of Partner to perform Services to
any customer or otherwise as required by that particular
arrangement.
4) Pricing
Detailed pricing can be found in Addendum A.
a) Each Bandwango plan (“Pricing Plan”) is composed of a
combination of implementation fees (“Implementation Fee”),
monthly service fees (“Monthly Fee”), and annual license fees
(“Annual Fee”). Details of the Pricing Plan that Partner is
agreeing to are detailed in Addendum A.
b) Implementation Fee. The price to be paid by Partner to
Bandwango for implementation (“Implementation Fee”)
supports the activities outlined in Addendum A.
c) The Implementation Fee shall be paid in full within 15 days
upon execution of this Agreement. Thereafter, Bandwango will
provide onboarding and training for a set number of
merchants de ned in Addendum A, technical support,
technical maintenance, correction of technical errors and
bugs, consultation, training, and the Services associated with
the Licensed Programs as described in Paragraph 3, (e)
“Service and Support” above. After the set number of
merchants de ned in Addendum A has been reached, a at
fee per merchant will be charged for onboarding and training
services, which can be found in Addendum A.
d) Annual License Fees. The Annual Fee will be charged
by Bandwango to Partner to support all managed accounting
and customer service operations for Partner, Merchants, and
Customers. The Annual License fee shall be invoiced to
Partner upon contract execution, payable on net 15 terms.
e) Monthly Service Fees. The Monthly Fee for use of the
Licensed Program includes a limited number of paid (“Paid
Distribution”) and free (“Free Distribution”) pass distributions
("Pass") per month (“Monthly Allowances”). Details of these
limits can be found in Addendum A.
i) Free Distributions: A Free Distribution is de ned as a
distribution generated through the Licensed Program
where the item(s) have a retail price of $0 and does
not require payment from the customer.
ii) A Paid Distribution is de ned as one Pass created
and distributed by the Licensed Program in which
transfer of money occurs between the customer and
the Licensed Program. In the event that the sum of
Bandwango fees and merchant remittance exceeds
the sale price of Paid Distributions, Partner will be
responsible for the losses incurred and will be billed
by Bandwango on a monthly basis, subject to net 15
terms. All Paid Distributions are shall be charged a
credit card fee ("Payment Gateway Fee") as de ned in
Addendum A. Payment Gateway Fees shall not
be reimbursed when refunds are processed through
the Licensed Program.
In certain instances, a transaction or distribution may occur
outside of the Licensed Program (“Third Party Distributions”)
while the Licensed Program is used to generated the pass.
Third Party Distributions shall be counted towards all Monthly
Allowances detailed in Addendum A. Examples of this include
(among others) distribution by Groupon, Living Social or other
deal sites, as well as distribution through tour operators and
OTAs. On Paid Distributions, all commissions outlined in
Addendum A shall be billed at full retail price, regardless of
any discounts provided through Third Party Distributions.
Remittance on Returns and/or Refunds for paid passes
exclude all processing fees charged to Bandwango.
f) The monthly fee will be invoiced on a monthly or annual
basis, to be determined by Partner, payable on net 15 terms.
All fees exceeding allowances outlined in Addendum A
("Management Fees") shall not be reimbursed when refunds
are processed through the Licensed Program.
g) Bandwango shall manage all accounting associated with
the Licensed Program, including: (1) collection of payments,
(2) dispersing payments to merchants, (3) refunds, and (4)
management of reporting. Merchants will be paid on a
monthly basis, not exceeding 30 days after the end of each
month. After any applicable fees outlined in Addendum A and
payments have been remitted to merchants, all excess funds
shall be dispersed to Partner. Payments to Partner will be
made
on a monthly basis, not exceeding 30 days after the end of
each calendar month.
h) Upgrading Pricing Plan. Partner retains the right to upgrade
their Pricing Plan at anytime during the duration of this
agreement in order to increase the number of Monthly
Allowances. In the instance that Partner elects to upgrade
their Pricing Plan, Partner shall be responsible for the
upgraded Monthly Fee beginning at the next billable month,
and in all subsequent months for the duration of this
agreement. Additionally, Partner shall be responsible for the
Annual Fee of the upgraded Pricing Plan, billed at the
difference in Annual Fee between the original Pricing Plan and
the upgraded Pricing Plan. All upgrades will require contract
amendment and the Upgrade Fee shall be due upon
amendment signature, payable on net 30 terms.
5) Data Ownership
a) Rights in Customer Data. As between the parties, Partner
retains all right, title and interest in and to the Customer Data,
all Customer Properties and all content contained therein
(excluding any Bandwango IP). Partner hereby grants
Bandwango a non-exclusive, worldwide, royalty-free right and
license to collect, use, copy, store, transmit, modify and create
derivative works of the Customer Data solely to the extent
necessary to provide the Licensed Program and Services.
b) Aggregate/Anonymous Data. Aggregate/Anonymous Data
means: (i) data generated by aggregating Customer Data with
other data so that results are non-personally identi able with
respect to Customer and (ii) anonymous learnings, logs and
data regarding use of the Licensed Program and Services.
Customer agrees that Bandwango will have the right to
generate Aggregate/Anonymous Data. Notwithstanding
anything to the contrary herein, the parties agree that
Aggregate/Anonymous Data is Bandwango Intellectual
Property, which Bandwango may use for any business
purpose during or after the term of this Agreement (including
without limitation to develop and improve Bandwango’s
products and services and to create and distribute reports
and other materials). Bandwango will not distribute
Aggregate/Anonymous Data in a manner that personally
identi es Customers.
6) Indemnity
To the fullest extent permitted by law, Partner agrees to
defend, indemnify and hold harmless Bandwango, and
Bandwango's o cers, directors, partners, agents, consultants,
volunteers, and employees from and against any and all
claims, losses, liability, and damages (including but not
limited to attorney's fees, litigation expenses, and costs)
occurring during the ful llment of this Agreement, based on
the directions, approvals, publications, and negligent actions
or inactions of Partner. This indemni cation and defense
obligation applies fully to Bandwango's a liates. To the
fullest extent permitted by law, Bandwango agrees to defend,
indemnify and hold harmless Partner, and Partner o cers,
directors partners, agents, consultants, volunteers, and
employees from and against any and all claims, losses,
liability, and damages (including but not limited to attorney's
fees, litigation expenses, and costs) occurring during the
ful llment of this Agreement, based upon the infringement by
Bandwango upon any persons intellectual property rights or
upon the negligent actions or inactions of Bandwango. This
indemni cation and defense obligation applies fully to
Partner's a liates.
Upon becoming of any claim, Bandwango shall promptly (a)
notify Partner in writing of the claim, (b) provide Partner with
all reasonable information and assistance to defend or settle
the claim, {c) make no admissions, whether written or oral,
that could affect such claim, and (d) grant or provide Partner
with sole authority and control over the defense or settlement
of the claim.
7) Standard of Performance
a) Bandwango shall perform all Services in accordance with
this Agreement and all applicable laws and permits.
b) Bandwango warrants to Partner that its Services will be
performed in a professional and workmanlike manner, in
conformance with the highest professional standards in the
industry. Bandwango warrants that the Services provided
shall be satisfactory to Partner’s expectations.
8) Ownership and Restrictions
a) Bandwango or its licensors retain all ownership and
intellectual property rights to the Services and Bandwango
programs. Bandwango retains all ownership and intellectual
property rights to anything developed and delivered under the
Agreement. Bandwango shall be entitled, without limitation or
restrictions, to use, disclose and employ any of these Services
or software on behalf of its other and future clients.
Third party technology that may be appropriate or necessary
for use with some Bandwango programs is speci ed in the
program documentation or ordering document as applicable.
Your right to use such third party technology is governed by
the terms of the third party technology license Agreement
speci ed by Bandwango and not under the Agreement. You
may not:
(1) remove or modify any program markings or any notice
of Bandwango’ s or its licensors’ proprietary rights;
(2) make the programs or materials resulting from the
Services available in any manner to any third party for use
in the third party’s business operations (unless such
access is expressly permitted for the speci c program
license or materials from the Services you have acquired);
(3) modify, make derivative works of, disassemble, reverse
compile, or reverse engineer any part of the Services (the
foregoing prohibition includes but is not limited to review
of data structures or similar materials produced by
programs), or access or use the Services in order to build
or support, and/or assist a third party in building or
supporting products or Services competitive to
Bandwango;
(4) disclose results of any Services or program
benchmark tests without Bandwango’ s prior written
consent;
(5) license, sell, rent, lease, transfer, assign, distribute,
display, host, outsource, disclose, permit timesharing or
Service bureau use, or otherwise commercially
exploit or make the Services, Bandwango programs or
materials available, to any third party other than, as
expressly permitted under the terms of the Agreement.
The rights granted to you under the Agreement are also
conditioned on the following:
(6) Except as expressly provided herein, no part of the
Services may be copied, reproduced, distributed,
republished, downloaded, displayed, posted or transmitted
in any form or by any means, including but not limited to
electronic, mechanical, photocopying, recording, or other
means;
(7) And you agree to make every reasonable effort to
prevent unauthorized third parties from accessing the
Services.
9) Cancellation of Job
Either Party may terminate this Agreement for a material
breach by notifying the breaching Party both in writing and via
email to the appropriate representative, specifying the nature
of the breach and the section of this Agreement imposing the
breached obligation. Provided, however, that the breaching
Party shall have an opportunity to remedy the breach
immediately or as soon as commercially reasonable after
such notice. If the breach is not remedied in a commercially
reasonable time, the non-breaching Party may terminate this
Agreement. If this Agreement is terminated for breach under
this Section, the Party terminating this Agreement, in addition
to such termination, shall have all rights and remedies
available at law or in equity.
10) Governing Law
a) This Agreement shall for all purposes be considered as
having been made in and construed in accordance with the
laws of Delaware. Any and all actions at law or in equity, not
included within the scope of the arbitration provision herein, if
any, shall be brought only in a court of competent jurisdiction
located in the State of Delaware and each party hereby waives
any right to any change of venue.
b) Bandwango acknowledges that all images, designs, plans,
training, web sites, reports and other written materials,
including electronically stored versions and drafts thereof, are
and shall remain the sole and exclusive property of Partner.
All such materials shall be provided to Partner upon
termination of this Agreement and Partner shall thereafter
have the unrestricted right as owner to display and otherwise
use all such materials without any royalty, remuneration
or credit being
provided to Bandwango. Bandwango shall not trademark,
copyright or otherwise register in its own name any such
materials. Such materials shall not include Services and
software, that are in existence prior to this Agreement or
created outside the scope of this Agreement, or ideas,
methods, processes, skills, or know how, whether in
Bandwango’s possession prior to or developed by Bandwango
during the provisions of Services under this Agreement, all of
which is and shall remain the sole and exclusive property of
Bandwango.
11) No Consequential or Punitive Damages
Except to the extent caused by fraud or willful misconduct,
neither party shall be liable to the other for consequential
damages, for lost revenues or pro ts, cost of capital, lost
production of products, liability to third parties for failure to
deliver products, loss of opportunity for business with third
parties, or punitive or exemplary damages.
12) Waiver Not Precedent
A waiver on the part of Partner or Bandwango of any term or
condition of this Agreement shall not constitute a precedent
or bind either party hereto to a waiver of any succeeding
breach of the same or any other term or condition of this
Agreement.
13) Force Majeure
Any delays in performance by either party under this
Agreement shall be excused to the extent caused by
occurrences beyond the control of the parties affected,
including but not limited to, decrees of the government, acts
of God, strikes, or other concerted acts of workers (provided
Bandwango has exhausted all reasonable means, including
legal recourse), res, oods, explosion, riots, war, rebellion,
and sabotage, but the foregoing shall not give rise to any
claims for damages or be considered a waiver by either party
of the obligations of this Agreement. If the Bandwango is
delayed by an occurrence beyond its control then the Contract
time may be extended one day for each day delayed by
aforementioned act, as determined necessary by Partner.
14) Continuing Obligations
To the extent permitted by law, the completion of the Services
or any termination of this Agreement shall not relieve
Bandwango of any of its obligations under this Agreement,
which is of a continuing nature or effect.
15) Entire Agreement and Contract Modi cation
The Mutual Con dentiality & Non-Disclosure Agreement,
together with this Terms and Conditions, sets forth the entire
Agreement between Bandwango and Partner with respect to
the subject matter hereof. No modi cation of the Mutual
Con dentiality & Non-Disclosure Agreement or this Terms and
Condition shall be effective unless made in writing and signed
by both parties. Provided, however, that the written proposal
from Bandwango and discussions held in connection
therewith shall be admissible in construing the scope of this
Terms and Conditions should a dispute arise between the
Parties in connection therewith.
16) Dispute Resolution: Claims, Mediation, and Arbitration
Mediation
a) Any claim arising out of or related to the Agreement, except
those waived as provided for herein, shall be subject to
mediation as a condition precedent to arbitration or the
institution of legal or equitable proceedings by either party.
b) Prior to engaging in mediation or arbitration, the parties
shall, within ten (10) days of notice of the claim, meet and
attempt in good faith to resolve the dispute. If the dispute is
not resolved informally, then the parties shall proceed as set
forth herein. The parties shall endeavor to resolve their claims
by mediation which, unless the parties mutually agree
otherwise. c) Request for mediation shall be led in writing
with the other party to the Agreement and with the American
Arbitration Association, unless another mediator is mutually
agreed upon. The request may be made concurrently with the
ling of a demand for arbitration but, in such event, mediation
shall proceed in advance of arbitration or legal or equitable
proceedings, which shall be stayed pending mediation for a
period of sixty (60) days from the date of ling, unless stayed
for a longer period by Agreement of the parties or court order.
d) The parties shall share the mediator’s fee and any ling
fees equally. The mediation shall be held in the place where
the Project is located, unless another location is mutually
agreed upon. Agreements reached in mediation shall be
enforceable as settlement Agreements in any court having
jurisdiction thereof.
Arbitration
e) Any claim arising out of or related to the Agreement, except
those waived as provided herein, shall be subject to
arbitration. Prior to arbitration, the parties shall endeavor to
resolve disputes by mediation in accordance with the
provisions of this section. f) Claims not resolved by mediation
shall be decided by arbitration which, unless the parties
mutually agree otherwise, shall be in accordance with the
Commercial Arbitration Rules of the American Arbitration
Association currently in effect. The demand for arbitration
shall be led in writing with the other party to the Agreement
and with the American Arbitration Association, unless a
different arbitrator is mutually agreed upon, and a copy shall
be led with Partner’s development manager. Any arbitrator
shall have reasonable experience, and at least 5 years’
experience, in the area of information technology-related
Agreements and issues, and shall possess su cient
experience in large, complex commercial
disputes to serve a useful role as arbitrator with respect to
disputes arising under this Agreement.
g) A demand for arbitration shall be made by Bandwango
within thirty (30) days of Partner’s rejection of a claim, and in
other cases within a reasonable time after the Claim has
arisen, and in no event shall it be made after the date when
institution of legal or equitable proceedings based on such
claim would be barred by the applicable statute of limitations.
h) Claims and Timely Assertion of Claims. The party ling a
notice of demand for arbitration must assert in the demand
all claims then known to that party on which arbitration is
permitted to be demanded.
i) Judgment on Final Award. The award rendered by the
arbitrator or arbitrators shall be nal and judgment may be
entered upon it in accordance with applicable law in any court
having jurisdiction thereof.
17) Term of Agreement
This Agreement is effective for a term of 15 months
beginning upon execution of this Agreement. The Agreement
will automatically be extended for an additional year unless
either party provides written notice of its intent not to renew
no less than 30 days prior to contract expiration. This
Agreement will thus continue in perpetuity until such notice is
provided.
Mutual Con dentiality & Non-Disclosure Agreement
WHEREAS, the parties desire to disclose certain information
to each other in connection with the services to be provided
by Bandwango for and on behalf of Partner or in
consideration of a possible business transaction or
relationship between the parties. THEREFORE, the parties
agree to enter into a con dential relationship with respect to
the disclosure of certain information.
In consideration of the mutual covenants set out in this
Agreement, the disclosure of certain information, and for
other good and valuable consideration, the receipt and
su ciency of which is acknowledged, the parties agree as
follows:
1) De nitions
a) "Con dential Information" includes all information,
technical data, or know-how, including, but not limited to, that
which relates to a disclosing party's research, products,
hardware, software, designs, inventions, ideas, processes,
drawings, business plans, product implementations, nancial
information, marketing techniques, business operation and
systems, pricing policies, information concerning employees,
customers, and/or vendors disclosed by one party to another
in writing, orally, by inspection, or otherwise. Con dential
Information does not include information that the receiving
party can demonstrate: (i) was in the receiving party's
possession prior to its being furnished to the receiving party
under the terms of this Agreement, provided the source of
that information was not known by the receiving party to be
bound by a con dentiality agreement with, or other continual,
legal or duciary obligation of con dentiality, to the disclosing
party;
(ii) is now, or hereafter becomes, through no act or failure to
act on the part of either party, generally known to the public;
(iii) is rightfully obtained by the receiving party from a third
party, without breach of any obligation to the disclosing party;
or (iv) is independently developed by the receiving party
without use of or reference to the Con dential Information.
Con dential Information shall include all information of which
unauthorized disclosure could be detrimental to the interests
of the disclosing party whether or not such information is
identi ed as Con dential Information by the disclosing party.
b) "Representative" includes the receiving party's directors,
o cers, employees, agents, and nancial, legal, and other
advisors.
2) Con dentiality
a) The receiving party and its Representatives shall not
disclose any Con dential Information to third parties, in any
manner whatsoever, except as provided in paragraphs 3 and 4
of this Agreement, and shall protect the Con dential
Information for ve (5) years following the date of its
disclosure.
b) The receiving party shall take all measures reasonably
necessary to protect the Con dential Information received
from the disclosing party, at least as great as the measures it
takes to protect its own con dential information. The
receiving party shall segregate all Con dential Information
from the con dential information of others in order to prevent
commingling.
3) Permitted Disclosures
The parties may disclose Con dential Information to their
responsible Representatives with a bona de need to know
such Con dential Information, but only to the extent
necessary to evaluate or carry out a proposed transaction or
relationship or service and only if such Representatives are
advised of the con dential nature of such Con dential
Information, and the terms of this Agreement, and are bound
by a written agreement or by a legally enforceable code of
professional responsibility to protect the con dentiality of
such Con dential Information.
4) Required Disclosures
The receiving party may disclose Con dential Information
pursuant to a court order, provided that the receiving party
shall give the disclosing party reasonable notice of not less
than thirty (30) days prior to such disclosure and reasonable
opportunity to obtain a protective order or the equivalent.
5) Use and Disclaimers
a) The receiving party and its Representatives shall use
the Con dential Information solely in connection with the
Services and the relationship contemplated in connection
with the providing of Services and/or for the purpose of
evaluating a possible transaction or
relationship with the disclosing party and shall not in any way
use the Con dential Information to the detriment of the
disclosing party. The receiving party shall comply with all
applicable United States and foreign export laws and
regulations.
b) Nothing in this Agreement is intended to grant or imply any
rights, by license or otherwise, to either party under any
patent, copyright, trade secret, or other intellectual property
right, nor shall this Agreement grant or imply to either party
any rights in or to the other party's Con dential Information,
except the limited right to review such Con dential
Information solely for the purposes of consideration of a
possible transaction or relationship or service between the
parties. Neither party shall reverse engineer, decompile or
disassemble any hardware or software received from the
other party for any purpose inconsistent with this Agreement.
c) THE DISCLOSING PARTY PROVIDES INFORMATION SOLELY
ON AN "AS IS" BASIS. The receiving party hereby agrees to
indemnify the disclosing party against any and all losses,
damages, claims, expenses, and attorneys' fees incurred or
suffered by the disclosing party as a result of a breach of this
Agreement by the receiving party or its Representatives.
6) Return of Documents
a) The receiving party shall return to the disclosing party any
and all records, notes, documents, material, and other written,
printed or other tangible intangible (in the case of electronic
materials) materials in its possession pertaining to the
Con dential Information immediately on the written request
of the disclosing party or upon termination of this Agreement.
The returning of materials shall not relieve the receiving party
from compliance with other terms and conditions of this
Agreement.
b) The receiving party shall make no copies of any of the
disclosing party's Con dential Information without the prior
written consent of the disclosing party and shall return to the
disclosing party, upon request or upon termination of the
relationship between the parties, all copies made thereof.
7) No Additional Agreements
a) Notwithstanding any agreement for the Services, neither
the holding of discussions nor the exchange of material or
information shall be construed as an obligation of the either
party to perform any work, enter into any license, business
engagement or other agreement with the other party. The
parties hereby acknowledge that they are not agents of each
other. Nothing in this Agreement shall prohibit a party from
providing its own Con dential Information to third parties and
entering into agreements with third parties.
b) Each party reserve the right, in its sole discretion, to reject
any and all proposals made by the other party or its
Representatives with regard to a transaction between the
parties and to terminate discussions and negotiations at any
time. Additional agreements of the parties, if any, shall be in a
signed writing.
8) Irreparable Harm
The receiving party understands and acknowledges that any
disclosure or misappropriation of any of the Con dential
Information in violation of this Agreement may cause the
disclosing party irreparable harm, the amount of which may
be di cult to ascertain, and therefore agrees that the
disclosing party shall have the right to apply to a court of
competent jurisdiction for speci c performance and/or an
order restraining and enjoining any such further disclosure or
breach and for such other relief as the disclosing party shall
deem appropriate. Such right of the disclosing party is to be in
addition to the remedies otherwise available to the disclosing
party at law or in equity. The receiving party expressly waives
the defense that a remedy in damages will be adequate and
any requirement in an action for speci c performance or
injunction for the posting of a bond by the disclosing party.
9) Assignment
This Agreement, or any right or interest under this Agreement,
shall not be assigned, nor shall any work or obligation to be
performed under this Agreement (an "assignment") be
delegated, voluntarily, by operation of law or otherwise,
without the parties' prior written consent. Any attempted
assignment in contravention of this Section 9 shall be void
and ineffective. The terms of this Agreement shall be binding
upon and inure to the bene t of and be enforceable by the
permitted respective successors and assigns of the parties
hereto.
10) Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without
regards to con icts of laws principles. The parties hereby
irrevocably consent to the jurisdiction of the state and federal
courts located in the State of Delaware, in any action arising
out of or relating to this Agreement, and waive any other
venue to which either party may be entitled by domicile or
otherwise.
11) Attorney's Fees
If any action at law or in equity is brought to enforce or
interpret the provisions of this Agreement, the prevailing party
in such action shall be awarded its attorneys' fees and costs
incurred.
12) Counterparts and Right
a) This Agreement may be signed in counterparts, which
together shall constitute one agreement. If this Agreement is
signed in counterparts, no signatory hereto shall be bound
until both parties named below have duly executed, or caused
to be duly executed, a counterpart of this Agreement.
b) The person signing on behalf of each party represents that
he or she has the right and power to execute this Agreement.
13) Entire Agreement
This Agreement expresses the full and complete
understanding of the parties with respect to the subject
matter hereof and supersedes all prior or contemporaneous
proposals, agreements, representations and understandings,
whether written or oral, with respect to the subject matter.
This Agreement shall not limit any rights that either party may
have under trade secret, copyright, patent or other laws that
may be available. This Agreement may not be modi ed or
amended except by a writing that explicitly refers to the
amendment of this Agreement and that is signed by
authorized representatives of both parties.
14) Miscellaneous.
a) None of the provisions of this Agreement shall be deemed
to have been waived by any act, omission, or acquiescence on
the part of the disclosing party without a written instrument
signed by the disclosing party. No waiver by a party of any
breach shall be effective unless in writing, and no waiver shall
be construed as a waiver of any succeeding breach, whether
or not of the same or a different term or condition;
b) This Agreement shall be construed as to its fair meaning
and not strictly for or against either party.
c) The headings hereof are descriptive only and not to be
construed in interpreting the provisions hereof.
(Signature Page Follows)
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the last date
indicated below.
Bandwango, LLC
4516 South 700 East, Suite 205, Murray, UT 84107
Signed: ___________________________________________________
Date: _____________________________________________________
Name: ____________________________________________________
Title: _____________________________________________________
Bandwango Accounting Contact: Accounting@bandwango.com attention John Dymon
Par tner Name:
Par tner Mailing Address:
Par tner City, State, and Zip Code:
Billing Email Address:
Payment Structure:
Pay the entire First Year Cost (reference in Appendix A) up-front
Pay Implementation Fee and Annual License Fee up-front. Bill remaining Monthly Fees on a monthly
basis, beginning month four.
Signed: ___________________________________________________
Date: _____________________________________________________
Name: ____________________________________________________
Title: ______________________________________________________
Addendum A
Bandwango Destination Experience Engine (DXE) Pricing
One-Time Implementation Fee: Onboarding & Setup for Success - $5,000
Merchant Onboarding
Email & phone outreach
Custom sign-up form
Merchant system setup
Merchant review & training sessions
Includes ongoing merchant onboarding
Unlimited Merchants
System Setup & Use Case Optimization
Pass creation
Landing page creation
Client training session
Reporting setup
GTM/GA setup
Financial model
Included
Pricing Plan Starter
*Monthly Service Fee $500 $208.33
Annual Platform Fee $2,500
Paid Pass Allowances
Credit card fee is included in all commissions.10%
Free Passes Allowances Unlimited
Managed Accounting
Payments collection & distribution.Included
*First Year Cost $13,500 $10,000
*15 month year one
Year one of this agreement has been extended to 15
months at no additional cost. The rst 3 months of
service fees are waived.
Special Note: Rewards and incentive items managed and ful lled by Bandwango, including t-shirt and gami cation bounties, are considered
paid passes and will be assessed a 10% management, shipping, and handling fee on the gross costs for manufacture & distribution.
Remittance on Returns and/or Refunds for paid passes exclude processing fees.