Subscription Agreement


SUBSCRIPTION AND SERVICES AGREEMENT

This SUBSCRIPTION AND SERVICES AGREEMENT (this "Agreement") is made and entered into this 01st day of JAN, 2018 (the "Effective Date"), by and between [CLIENT NAME], and PUNCH TECHNOLOGIES, INC., a Delaware corporation ("Punch"). The parties agree as follows:

  1. Definitions.
    1. "Authorized Registered Users" means, with respect to each calendar month or year during the Term, the number of authorized Registered Users subscriptions purchased by Subscriber for such calendar month or year.
    2. "Documentation" means the online user documentation (if any) provided by Punch relating to the functionality and operation of the Service.
    3. "Punch Content" means the information and data made available by Punch to Subscriber and/or Registered Users as part of the Service, all of which Punch considers to be proprietary intellectual property.
    4. "Service" means, collectively, (i) the Punch Alert mobile safety and communication platform and (ii) the Punch Content, which shall be made available to Subscriber via one or more Internet Web sites and/or one or more mobile applications provided by Punch, including any modifications, enhancements and updates thereto.
    5. "Subscriber Data" means all data and information provided by or on behalf of Subscriber to the Service, including that which the Registered Users input or upload to the Service.
  2. Use of the Service.
    1. Subscription. Subject to the terms of this Agreement (including, without limitation, the limitations described in Section 2(b)), and as long as Subscriber pays all of the fees to Punch as described hereunder, Punch shall make the Service available to Subscriber during the Term. Subscriber agrees that access and use of the Service shall be limited to Registered Users (as defined in Section 2(b)).
    2. Usage Limitations and Restrictions. Prior to any use of the Service by any of Subscriber's employees, consultants, or agents (each, a "Registered User"), each such Registered User will be required to register with the Service. Other than access by Registered Users, no other right to access to or use the Service is granted under this Agreement. Subscriber shall: (i) be responsible for each of Subscriber's Registered Users' compliance with this Agreement; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Punch promptly of any such unauthorized access or use; (iii) use the Service only in accordance with the Documentation and all applicable federal and state laws and regulations; (iv) not make the Service available to anyone other than Subscriber's Registered Users; (v) not modify, alter, revise, decompile, disassemble, reverse engineer, create derivative works or attempt to derive the source code of the Service; (vi) not interfere with or disrupt the integrity or performance of the Service; and (vii) not access the Service in order to build a competitive product or service, copy any features, functions or graphics of the Service or monitor the availability and/or functionality of the Service for any benchmarking or competitive purposes.
  3. Proprietary Rights.
    1. Service. Subscriber acknowledges and agrees that (as between Subscriber and Punch) Punch retains all ownership right, title, and interest in and to the Service, the Documentation and the Punch Content, including without limitation all corrections, enhancements, improvements to, or derivative works of the Service (collectively, "Derivative Works"), and in all copyrights, patents, patent rights, trade secrets, trademarks and other intellectual property rights therein or thereto. To the extent any Derivative Work is developed by Punch based upon ideas or suggestions submitted by Subscriber to Punch, Subscriber hereby irrevocably assigns all rights to modify or enhance the Service using such ideas or suggestions or joint contributions to Punch, together with all copyrights, trade secrets, trademarks, patents, patent rights and other intellectual property rights related to such Derivative Works. Nothing contained in this Agreement shall be construed to convey to Subscriber (or to any party claiming through Subscriber) any intellectual property rights in or to the Service, the Documentation or the Punch Content, other than the rights expressly set forth in this Agreement.
    2. Notices. Subscriber shall not remove, and shall reproduce on any copies, any copyright or other proprietary notices included in the Service (including the Punch Content).
    3. Subscriber Data. Punch acknowledges and agrees that (as between Subscriber and Punch) Subscriber retains all ownership right, title, and interest in and to the Subscriber Data, including all copyrights, patents, patent rights, trade secrets, trademarks and other intellectual property rights therein or thereto.
  4. Services.
    1. Professional Services. Punch shall provide and perform technical, professional, training or other services ("Professional Services") that are mutually agreed upon and described in one or more statements of work ("SOWs"). Each SOW shall be effective, incorporated into and form a part of this Agreement when duly executed by an authorized representative of each of the parties. Each SOW shall set forth the fees and payment terms with respect the Professional Services being provided pursuant to such SOW.
    2. Support Services. During the Term Punch shall, as part of Subscriber's subscription fees, provide telephone and e-mail support ("Support Services") to Subscriber during the hours of 8:30 a.m. (EST) to 5:30 p.m. (EST), Monday through Friday, excluding federal holidays ("Regular Business Hours"). Subscriber agrees that any requests for Support Services, whether by telephone or e-mail, shall be submitted only when the Service does not execute or function in all material respects with its Documentation. Subscriber acknowledges and agrees that (i) Punch shall not be obligated to provide Support Services outside of Regular Business Hours or in connection with any reported support request that Punch reasonably determines is not attributable to a failure of the Service to operate in all material respects with its Documentation, and (ii) any Support Services provided for the reasons stipulated in clause (i) shall be provided by Punch on a time-and-materials basis.
  5. Payment and Fees.
    1. Fees. Subscriber shall, for each calendar month or year during the Term depending on the payment option chosen, pay to Punch a subscription fee (each, a "Subscription Fee") in an amount equal to the aggregate number of Authorized Registered Users for such calendar year, multiplied by Punch's then-current, applicable per Authorized Registered User annual or monthly subscription fee. In addition, if Subscriber desires to increase its maximum number of Authorized Registered Users during any calendar year of an annual Term, Subscriber shall pay an additional fee in an amount equal to the number of additional Authorized Registered Users multiplied by the then-current per Authorized Registered User annual subscription fee. Except as otherwise provided by Punch: (i) the initial monthly or annual Subscription Fee shall be due and payable on the Effective Date and each monthly or annual Subscription Fee thereafter shall be due and payable on each successive anniversary of the Effective Date thereafter; (ii) each Subscription Fee shall be based upon the number of Authorized Registered User subscriptions purchased and not actual usage; (iii) all payment obligations are non-cancelable and all Subscription Fees paid are non-refundable; and (iv) the number of Authorized Registered User subscriptions may only be decreased at the commencement of any Renewal Term (i.e., not during any Renewal Term).
    2. Invoicing and Payments. Subscriber shall, upon the written request from Punch, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the "Automatic Payment Method"). Upon establishment of such Automatic Payment Method, Punch is hereby authorized to charge the Subscription Fees using such Automatic Payment Method. If Punch does not require Subscriber to establish and maintain an Automatic Payment Method, Punch shall invoice Subscriber in advance for the applicable Subscription Fees. Except as set forth in this Agreement, invoiced charges (e.g., charges for Professional Services) are due net 30 days from the invoice date. Subscriber is responsible for providing complete and accurate billing and contact information to Punch and notifying Punch of any changes to such information.
    3. Overdue Payments. Subscriber agrees to pay as a late payment charge the lesser of one and one-half percent (1.5%) per month or the maximum late payment charge permitted by law on all invoiced amounts not paid to Punch within thirty (30) days from date of invoice. Subscriber also agrees to pay all expenses of collection, including reasonable attorney's fees, incurred by Punch in collecting accounts not paid thirty (30) days from date of invoice
    4. Taxes. Punch'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"). Subscriber is responsible for paying all Taxes associated with its purchases hereunder. If Punch has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section 5(d), Punch will invoice Subscriber and Subscriber will pay that amount unless Subscriber provides Punch with a valid tax exemption certificate authorized by the appropriate taxing authority. Subscriber agrees to indemnify and hold Punch harmless from any encumbrance, fine, penalty or other expense which Punch may incur as a result of Subscriber's failure to pay any Taxes required hereunder. For clarity, Punch is solely responsible for taxes assessable against Punch based on its income, property and employees.
    5. Value-Added Reseller. Notwithstanding anything to the contrary set forth in this Section 5, if Subscriber purchases its Authorized Registered User subscriptions from one of Punch's authorized, value-added resellers (the "VAR"), (i) all fees (including, without limitation, the Subscription Fees) applicable to such purchases shall be described and set forth in Subscriber's written agreement with the VAR (the "VAR Agreement"), (ii) Subscriber shall pay all such fees directly to the VAR in accordance with the payment terms set forth in the VAR Agreement, and (iii) the VAR shall be responsible for paying to Punch the Subscription Fees described in this Agreement.
  6. Term and Termination.
    1. Term. This Agreement commences on the Effective Date and continues for an initial term of one month or one year (the "Initial Term"), depending on the chosen billing plan. This Agreement shall automatically renew for successive renewal terms (each, a "Renewal Term" and, together with the Initial Term, the "Term") at the same interval of the Initial Term unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the applicable term. The per Registered User Subscription Fee pricing during an automatic Renewal Term will be the same as that during the immediately prior term unless Punch has provided Subscriber with written notice of a pricing increase at least thirty (30) days before the end of that prior term, in which case the pricing increase will be effective upon commencement of the Renewal Term and thereafter.
    2. Termination; Suspension of Service. A party may terminate this Agreement for cause (i) upon thirty (30) days' prior 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. Without limiting the foregoing, in the event of a breach that gives rise to the right by Punch to terminate this Agreement, Punch may elect, as an interim measure, to suspend its performance hereunder (including, without limitation, Subscriber's right to access the Service) until the breach is cured. Punch's exercise of its right to suspend performance shall be without prejudice to Punch's right to terminate this Agreement upon written notice to Subscriber.
    3. Refund or Payment upon Termination. If this Agreement is terminated by Subscriber in accordance with Section 6(b), Punch will refund Subscriber any prepaid fees covering the remainder of the Term after the effective date of termination. If this Agreement is terminated by Punch in accordance with Section 6(b), Subscriber will pay any unpaid fees covering the remainder of the Term. In no event will termination relieve Subscriber of its obligation to pay any fees payable to Punch for the period prior to the effective date of termination. Subscriber acknowledges that Punch may charge such amounts to Subscriber's Automatic Payment Method.
    4. Survival. Upon The following portions of this Agreement shall survive termination of this Agreement and continue in full force and effect: Sections 7(b), 8, 9, 9 and 11. Termination of this Agreement, or any of the obligations hereunder, by either party shall be in addition to any other legal or equitable remedies available to such party, except to the extent that remedies are otherwise limited hereunder.
  7. Representations and Warranties.
    1. Representations. (i) Each party represents that: (A) has full right, title and authority to enter into this Agreement; and (B) its execution, delivery and performance of this Agreement will not violate the terms or provisions of any other agreement, contract or other instrument, whether oral or written, to which it is a party. (ii) Punch warrants and covenants that the Service shall perform in all material respects in accordance with the Documentation. (iii) Subscriber warrants and covenants that: (A) it shall comply in all material respects with all federal and state laws and regulations applicable to it when accessing and using the Service hereunder; and (B) it shall immediately notify Punch of any privacy or security breaches involving the Service, including any known unauthorized use of a Registered User's account or password.
    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
  8. Indemnification.
    1. Indemnity by Punch. Punch shall defend, indemnify and hold harmless Subscriber from any loss, damage or expense (including reasonable attorneys' fees) awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Subscriber, in connection with any third-party claim (each, a "Claim") alleging that Subscriber's use of the Service as permitted hereunder infringes upon any United States patent, copyright or trademark of such third party, or misappropriates the trade secret of such third party; provided that Subscriber (x) promptly gives Punch written notice of the Claim; (y) gives Punch sole control of the defense and settlement of the Claim (provided that Punch may not settle any Claim unless the settlement unconditionally releases Subscriber of all liability); and (z) provides to Punch all reasonable assistance, at Punch's expense. If Punch receive information about an infringement or misappropriation claim related to the Service, Punch may in its sole discretion and at no cost to Subscriber: (i) modify the Service so that it no longer infringes or misappropriates, without breaching the warranties under clause (ii) of Section 7(a), (ii) obtain a license for Subscriber's continued use of the Service in accordance with this Agreement, or (iii) terminate the Subscriber's Registered User subscriptions for the Service upon thirty (30) days' prior written notice and refund to Subscriber any prepaid fees covering the remainder of the term of the terminated Registered User subscriptions. Notwithstanding the foregoing, Punch shall have no liability or obligation with respect to any Claim that is based upon or arises out of (A) the use of the Service in combination with any software or hardware not expressly authorized by Punch, (B) any modifications or configurations made to the Service by Subscriber without the prior written consent of Punch, and/or (C) any action taken by Subscriber relating to use of the Service that is not permitted under the terms of this Agreement, including without limitation, any use in violation of any applicable federal and/or state law, rule or regulation or not otherwise described in the Documentation. This Section 8(a) states Subscriber's exclusive remedy against Punch for any Claim of infringement of misappropriation of a third party's intellectual property rights.
    2. Subscriber shall defend, indemnify and hold harmless Punch from any loss, damage or expense (including reasonable attorneys' fees) awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Punch, in connection with any Claim alleging that (i) the Subscriber Data, or Subscriber's use of the Service in breach of this Agreement, infringes upon any United States patent, copyright or trademark of such third party, or misappropriates the trade secret of such third party, or (ii) Subscriber violated any applicable federal and/or state law, rule or regulation; provided that Punch (x) promptly gives Subscriber written notice of the Claim; (y) gives Subscriber sole control of the defense and settlement of the Claim (provided that Subscriber may not settle any Claim unless the settlement unconditionally releases Punch of all liability); and (z) provides to Subscriber all reasonable assistance, at Subscriber's expense. This Section 8(b) states Punch's exclusive remedy against Subscriber for any Claim of infringement of misappropriation of a third party's intellectual property rights.
  9. Limitation of Liability. IN NO EVENT SHALL PUNCH, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO SUBSCRIBER IN EXCESS OF THE AMOUNTS PAID BY SUBSCRIBER TO PUNCH PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE LAST ACT OR OMISSION GIVING RISE TO THE LIABILITY. UNDER NO CIRCUMSTANCES SHALL PUNCH HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF PUNCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
  10. Confidentiality.
    1. Defining Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party (the "Disclosing Party") to the other party (the "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. For avoidance of doubt, Subscriber's Confidential Information shall include the Subscriber Data, Punch's Confidential Information shall include the Service (including, without limitation, the source code, data structure, algorithms and logic thereof), and the Confidential Information of each party shall include the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information (other than Subscriber's Data) shall 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.
    2. Protection of Confidential Information. The Receiving Party agrees that it shall (i) hold the Disclosing Party's Confidential Information in strict confidence and will use the same degree of care in protecting the confidentiality of the Disclosing Party's Confidential Information that it uses to protect its own Confidential Information, but in no event less than reasonable care, (ii) not use the Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement; (iii) not copy any part of the Disclosing Party's Confidential Information except as expressly permitted by this Agreement, (iv) limit access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
    3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.
  11. Miscellaneous.
    1. Governing Law. This Agreement shall be governed and interpreted by the laws of the State of North Carolina, without reference to conflicts of law principles thereof. The parties agree that any and all causes of action arising under this Agreement shall only have jurisdiction and venue in a federal or state court sitting in Mecklenburg County, North Carolina and the parties hereby irrevocably consent to the jurisdiction and venue of either court for the resolution of such causes of action.
    2. Relationship of the Parties. Punch is performing pursuant to this Agreement only as an independent contractor. Punch has the sole obligation to supervise, manage, contract, direct, procure, perform or cause to be performed its obligations set forth in this Agreement, except as otherwise agreed upon by the parties. Nothing set forth in this Agreement shall be construed to create the relationship of principal and agent between Punch and Subscriber. Punch shall not act or attempt to act or represent itself, directly or by implication, as an agent of Subscriber or its affiliates or in any manner assume or create, or attempt to assume or create, any obligation on behalf of, or in the name of, Subscriber or its affiliates.
    3. Waiver. No failure or delay by either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to subsequently enforce any of its rights, whether relating to the same or a subsequent matter.
    4. Assignment. Subscriber shall have no right to transfer, assign or sublicense this Agreement or any of its rights, interests or obligations under this Agreement to any third party and any attempt to do so shall be null and void. Punch shall have the full ability to transfer, assign or sublicense this Agreement or any of its rights, interests or obligations under this Agreement.
    5. Force Majeure. Subject to the limitations set forth below, Punch shall not be held responsible for any delay or default, including any damages arising therefrom, due to any act of God, act of governmental entity or military authority, explosion, epidemic casualty, flood, riot or civil disturbance, war, sabotage, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software, insurrections, any general slowdown or inoperability of the Internet (whether from a virus or other cause), or any other similar event that is beyond Punch's reasonable control (each, a "Force Majeure Event"). The occurrence of a Force Majeure Event shall not excuse the performance by Punch unless Punch promptly notifies Subscriber of the Force Majeure Event and promptly uses its best efforts to provide substitute performance or otherwise mitigate the force majeure condition.
    6. Notices. Except as otherwise specified in this Agreement, all notices, instructions, requests, authorizations, consents, demands and other communications hereunder shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when actually delivered); (b) by overnight courier (upon written verification of receipt); or (c) by certified or registered mail, return receipt requested (upon verification of receipt). In each case, such notices shall be addressed to a party at such party's address set forth on the signature page to this Agreement (or such other address as updated by such party from time-to-time by giving notice to the other party in the manner set forth above).
    7. Interpretation of Agreement. The Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties, and shall not affect in any way the meaning or interpretation of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
    8. Severability. The invalidity of any portion of this Agreement shall not invalidate any other portion of this Agreement and, except for such invalid portion, this Agreement shall remain in full force and effect.
    9. Entire Agreement. This Agreement is the entire agreement between Subscriber and Punch regarding Subscriber's use of the Service 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 will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order or in any other order documentation is void.
    10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (e.g., "pdf" or "tif" file format) shall be effective as delivery of a manually executed counterpart of this Agreement.