This Subscription Agreement (“Agreement”) governs Your use of Our Software and Support. By accepting this Agreement, submitting a Purchase Order for Software and/or Support, or remitting payment for an invoice for Software and/or Support, You agree to the terms of this Agreement.

Definitions

“App” means the EASYPUNCH and/or EASYPUNCH mobile applications that You purchase from Us, and are available for download from various locations on the Web.

“Community” means a geographic area(s) and/or network identifying characteristics, as described in Your Profile, where App Users use App to become part of the Community and report app activity.

“Customer Content” means any content You or your designee provide Us for use in connection with the App.

“Profile” means the information You provide to Us containing the various parameters and settings that We use to implement the Software and Support. Your Profile will include information such as Your name, the latitude and longitude coordinates of Your location(s), (e.g., stores, buildings, campuses, research centers, etc.), wireless network names or other identifying markers, or any other information necessary to describe Your Community.

“Purchase Order” means the document You use to place an order for Software and Support with Us under this Agreement. Purchase Orders include the specific Software and Support descriptions, Subscription Term and associated fees. By submitting a Purchase Order to Us, You agree to be bound by the terms of this Agreement.

“Purchased Support” means the specific Software and Support that You purchase from Us.

“Quotation” means the document We provide You to describe the specific Software and Support and the associated fees that You are purchasing under this Agreement. Quotation includes the specific Software and/or Support descriptions, Subscription Term, associated fees and payment terms.

“Software and Support” means the implementation of App with any or all of the following options as specified in the Purchase Order:

• Branded App incorporating Your branding and Your colors
• Deployment Support which may include consulting, education, or implementation assistance to launch App within Your organization
• Content Localization with Your weblinks, videos, and/or cover photos
• Community Definition based on the organization of Your User Community
• In-App Challenges based on Your selected theme with notifications and optional prize support provided.

Additional specified features

“Subscription Term” means the period of time Software and/or Support are being purchased by You and delivered by Us to You. Subscription Term is typically a one (1) month period and appears on the Invoice.

“User” means any person who has downloaded and is using the App.

“User Data” means all data, information, content and materials collected, derived, created, submitted or developed in connection with Your and/or Your Users’ use of the App.

“We”, “Us” or “Our” means SMART PUNCH, INC. dba EASYPUNCH, more fully described in Section 10.2.

“You” and “Your” means the organization which is accepting this Agreement, as more fully described on the Purchase Order or Our invoice for Software and/or Support.

Use of App

2.1 Provision of Purchased Support – We shall make the App available to You and Your Community pursuant to this Agreement and the relevant Purchase Order(s) during the Subscription Term.

2.2 Our Responsibilities – We shall:

provide support for the App to You at no additional charge, and

use commercially reasonable efforts to make the App available 24 hours a day, 7 days a week, except for:

• planned downtime, of which We will give You at least 4 hours advance notice, and
• any unavailability due to circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks.

Fees and Payment

3.1 Fees – You shall pay all fees specified in all invoices for Software and Support, which will agree with Your Purchase Order. Fees are based on Software and Support purchased and not actual usage.

3.2 Invoicing and Payment – Once You provide Us with a Purchase Order, We will invoice You accordingly. Unless otherwise stated in the Purchase Order, invoices are payable and due 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.

Proprietary Rights; Customer Content; User Data

4.1 Reservation of Rights in Software and Support – Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Software and Support, including all related intellectual property rights, excluding Customer Content. No rights are granted to You hereunder other than as expressly set forth herein.

4.2 Suggestions – We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Software and Support any suggestions, enhancement requests, recommendations or other feedback provided by You.

4.3 Customer Content – Notwithstanding anything to the contrary contained herein, all right, title and interest to the Customer Content shall belong to You and constitutes your valuable, confidential and proprietary information.   You hereby grant Us a limited, non-exclusive, non-transferable, royalty free right and license to use, display, transmit, and distribute the Customer Content as necessary to provide the Software and Support.

4.4 User Data – We agree that the App will include links to a privacy policy and terms of use. These documents disclose Our privacy practices and other terms for the App as they relate to User data.  We shall comply with such policies at all times.

Warranties and Disclaimers

5.1 Warranties – We warrant that We have validly entered into this Agreement and have the legal power to do so and to grant the rights described herein. You warrant that You have validly entered into this Agreement and have the legal power to do so. We warrant that the Software  and Support shall comply in all material respects as specified in the Quotation.  We do not warrant that the Software or Support will be error free.  We will at no additional cost to You provide remedial Support necessary to enable the Software and Support to conform to the warranty.

5.2. Disclaimer – EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Mutual Indemnification and Insurance

6.1 Indemnification By Us – We will indemnify, defend, and hold You harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of (i) a third party claim that Our Software and Support infringe or misappropriate any patent, copyright, trade secret or trademark of such third party, and (ii) Our breach of any of Our representations, warranties or covenants under this Agreement. Notwithstanding the foregoing, in no event shall We have any obligations or liability under this Section arising from: (i) use of any Software and Support in a modified form or in combination with materials not furnished by Us, and (ii) any content, information or data provided by You, Users or other third parties.

6.1 Indemnification By You – You agree to indemnify, defend, and hold Us and Our employees, contractors, officers, directors and representatives harmless against any action or suit that arises out of Your use or misuse of the Software, any transaction or other dealings with any of Your Users, Employees, contractors or other third party in which You are involved, or Your breach of any of Your representations, warranties or covenants under this Agreement.

You agree to indemnify, defend, and hold Us and Our employees, contractors, officers, directors and representatives harmless against any action or suit by Your employees, contractors, or third parties that arises out of any claims for violations of wage and hour laws and regulations generally, including but not limited to claims for non-payment, under payment, or late payment of wages, failure to provide compliant meal and rest periods, failure to provide compliant wage statements, etc.

Limitation of Liability

7.1. Limitation of Liability – NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY LOSS OF INCOME, PROFIT, REVENUE, BUSINESS, GOODWILL, OR CONTRACTS OR ANY OTHER CONSEQUENTIAL, INCIDENTAL OR INDIRECT LOSS OR DAMAGE OF ANY KIND HOWSOEVER ARISING.  NOT SUCH LIMITATION OF LIABILITY SHALL APPLY IN CASE WHERE THE DEFAULTING PARTY IS LIABLE FOR GROSS NEGLIGENCE OR WILFUL MISCONDUCT, BREACH OF CONFIDENTIALITY OR INDEMNIFICATION. THE LIMITATION STATED IN THIS SECTION ALSO DOES NOT APPLY IN RELATION TO INJURY OR HARM TO INDIVIDUALS. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 3 (FEES AND PAYMENT).

7.2. Exclusion of Consequential and Related Damages – IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Term

8.1 Term – This Agreement will be in effect during the Subscription Term.

8.2 Termination for Cause – Either party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

8.3. Surviving Provisions – Section 3. Fees and Payment , Section 4. Proprietary Rights; Customer Content; User Data, Section 5. Warranties and Disclaimers, Section 6. Mutual Indemnification and Insurance, Section 7. Limitation of Liability, Section 9. Confidentiality, Section 10. Notices and Governing Law and Section 11. General Provisions shall survive any termination or expiration of this Agreement.

Confidentiality

9.1 Confidentiality – For purposes of this Agreement, “Confidential Information” means any non-public oral, written, graphic or machine-readable information being disclosed to the receiving party hereunder (“Recipient”) by the disclosing party hereunder (“Discloser”). Neither Recipient will at any time use the Confidential Information for its own benefit or for the direct or indirect benefit of any third party; or disclose to an unauthorized person, firm or corporation any Confidential Information, documents or materials of Discloser.  Confidential Information shall not include any information which Recipient can prove: (i) was in the public domain at the time it was disclosed or has subsequently entered the public domain through no fault of Recipient; (ii) was known to the Recipient, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is approved for release by the prior written consent of Discloser and is released consistently with such consent; (iv) was independently developed by Recipient without any use of the Confidential Information; (v) became known to Recipient, without restriction, from a source other than Discloser without breach of this Agreement by Recipient and otherwise not known by Recipient to be in violation of Discloser’s rights; or (vi) is legally required to be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body, or is otherwise required by applicable law or regulatory process. Upon the termination of this Agreement or at Discloser’s request, all Confidential Information in tangible form, including any copies made by Recipient, will be either (at Discloser’s election) returned to Discloser or destroyed, and Recipient will delete, erase or otherwise destroy all intangible Confidential Information including any electronic or digital versions thereof in its possession or control.

Notices and Governing Law

10.1  Governing Law – This Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to conflict of law provisions.

10.2 Notices – All notices and other communications given or made under this Agreement, will be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the 3rd business day after mailing, (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated on the Purchase Order. All other notices to You shall be addressed to the relevant contact designated by You.

Notices to Us should be addressed to:

SMART PUNCH, INC. (dba EASYPUNCH)
811 Wilshire Blvd Floor 17 Los Angeles CA 90017
213-800-1420
customerservice@easypunchauto.com

General Provisions

11.1 Relationship of the Parties – The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.2 No Third-Party Beneficiaries – There are no third-party beneficiaries to this Agreement.

11.3 Waiver – No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

11.4 Severability – If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.5 Assignment – Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Purchase Orders), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, We shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

11.6 Entire Agreement – This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Purchase Order, the terms of this Agreement shall prevail.