Subscription Terms and Conditions

HYPERLOCOLOGY, LLC

This Subscription Agreement is made on the Start Date in Exhibit A (the "Effective Date") by and between Hyperlocology, LLC, a Delaware limited liability company, having a business address of 8712 Lindholm Drive, Huntersville, NC 28078 (the “Company”) and ____________________, (the “Customer”).  Each of Company and Customer may hereinafter be referred to as a “Party” and collectively, the “Parties”.

1. Term. Unless otherwise indicated on Exhibit A attached hereto, and if not terminated earlier in accordance with this Agreement, this Agreement shall become effective as of the Effective Date and continue for one (1) year (the "Initial Term"). This Agreement shall automatically renew for additional one (1) year periods (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless otherwise indicated on Exhibit A attached hereto or either Party provides written notice of its intent not to renew the Agreement at least thirty (30) days prior to the expiration of the then-current term.  
2. Services; Grant of License to Access and Use Platform. During the Term, Company will provide to Customer the services described in this Agreement (the “Services”) and access to and use of the Hyperlocology platform (the “Platform”) in connection therewith.  Company hereby grants to Customer, and Customer’s Authorized Users (as hereinafter defined), a non-exclusive, non-sublicensable, non-assignable, royalty-free, and worldwide license to access and use the Platform solely for Customer's internal business operations in accordance with the terms of this Agreement and Company's online terms of use (the “Terms of Use”). “Authorized Users” means any franchise of Customer (each, a “Franchisee”), and the employees, agents, or individual subcontractors of Customer and Franchisees who are authorized by Customer to access and use the Platform.

• Service Level Agreement.  All Services provided hereunder will be subject to and performed in accordance with the service level agreement attached hereto as Exhibit B (the “Service Level Agreement”).

1. Data Protection. Company will not be liable or responsible for the loss, theft, damage to, misappropriation, or disappearance of property (including personal, commercial, or intellectual property or other materials of Customer) uploaded, posted or included on the Platform (“Customer’s Information”). By agreeing to this Agreement and providing Customer’s Information to Company, Customer consents to the transfer of Customer’s Information, and to the processing of Customer’s Information in the United States and other jurisdictions in which Company operates. Customer represents and warrants that it has the authority to provide Customer’s Information for the purposes contemplated in this Agreement.  Company shall implement appropriate safeguards to prevent unauthorized access to, use of, or disclosure of Customer’s Information.  The Parties acknowledge, however, that the security of transmissions over the internet cannot be guaranteed. Company will not be responsible for Customer’s access to the internet, for any interception or interruption of any communications through the internet, or for changes to or losses of data through the internet.
2. Data Privacy. Company may collect, use and process Customer's data only in accordance with Company's online privacy policy.
3. Confidentiality Obligations. “Confidential Information” means information concerning the business of the other party and/or its affiliates, whether or not reduced to writing, including  without limitation information pertaining to developments, techniques, data, know-how, methodology, formulations, benchmarks, research, processes, technology, designs, materials, ideas, plans, trade secrets, customers, proprietary information, accounting data, and other information relating to the business of the other party. The parties acknowledge and agree that they may receive or be exposed to Confidential Information of the other party during the Term. Without limiting anything herein, the parties acknowledge and agree that the Platform and Services are Confidential Information of Company and Customer’s data is Confidential Information of Customer. Each party acknowledges that the Confidential Information of the other is confidential and proprietary and agrees not to disclose such Confidential Information to anyone other than employees or independent contractors of the receiving party who have a need to know such information and are bound by confidentiality obligations at least as restrictive as those contained herein.  In addition, the receiving party agrees that it will not, without the prior written consent of the disclosing party, use the Confidential Information for any purpose other than to fulfill its obligations under this Agreement.  Each party shall protect the Confidential Information of the other at least to the same extent it protects its own similar information, but in no event using less than reasonable care. The parties’ obligations of confidentiality shall not apply to information which: (i) is obtained from a third party, unless such third party is subject to a nondisclosure obligation known to the receiving party; (ii) is in or enters the public domain not as a result of action by the receiving party; (iii) is independently developed by the receiving party without use of or access to the disclosing party's Confidential Information; (iv) was in the receiving party’s lawful possession prior to the disclosure by the disclosing party, unless the receiving party is under a nondisclosure obligation to the disclosing party with respect to such possession; or (v) is required to be disclosed by law or court order; provided, however, that in the event of any such required disclosure, the receiving party shall provide the disclosing party with prompt written notice thereof and shall cooperate with the disclosing party in any attempt to quash, limit or otherwise prevent or limit disclosure. For avoidance of doubt, Company shall have the right to use Customer’s data provided in connection with this Agreement as necessary to provide the Platform and Services and as otherwise permitted by this Agreement. Nothing in this Agreement is intended to prohibit Company from using the general knowledge and experience gained by Company in the provision of the Platform and Services under this Agreement.
4. Subscription Fee. Customer shall pay Company an annual subscription fee as set forth on Exhibit A attached hereto (the "Subscription Fee") for access to, and use of, the Platform. The Subscription Fee shall be due and payable on or before the commencement of the Initial Term or the then-current Renewal Term, as the case may be.  The Subscription Fee is non-refundable. Company reserves the right to modify pricing at any time by written notice to Customer.  In the event any Franchisee elects to continue its usage of or access to the Platform and/or the Services after the expiration or termination of this Agreement, this Agreement shall continue with respect to such Franchisee and Customer shall pay Company a prorated subscription fee calculated by dividing the Subscription Fee by twelve (12) and multiplying such amount by the number of months of Franchisee’s use outside of the Term (the “Prorated Subscription Fee”).
5. Ad-on Fees:  At any point during the Term, Customer may opt to increase usage and/or adding Additional Users, which shall incur additional fees (“Add-on Fees”).  Add-on Fees will be prorated for the time remaining in the Initial Term or the then-current Renewal Term.
6. Media Purchases and Costs:  All costs related to Media Purchases (“Media Costs”) shall be in addition to, and separate from, the Subscription Fee.

• Ownership.

• Company-Owned Proprietary Rights.  All proprietary rights in all intellectual property owned by Company will be and remain the property of Company.

1. The Platform.  The Platform, including all software, databases, proprietary information, documentation, contents, computer codes, ideas, know-how, graphics, images, illustrations, logos, icons and links (and all modifications and derivative works thereof and any intellectual property and other rights relating thereto or contained therein) including, without limitation, the selection, compilations, sequence and “look and feel” and arrangement of items, is owned and operated by Company and will remain the exclusive property of Company.
1. Customer Restrictions. Customer agrees to use the Platform in compliance with applicable law, the terms and conditions in this Agreement, and any terms and conditions applicable to the Platform as from time to time provided by Company. Customer agrees to use the Platform solely for its intended purpose and Customer SHALL not, and shall not allow third parties to:
1. copy, distribute, license, loan, or sell the Platform or other content that is contained or displayed in it;
2. modify, alter, or create any derivative works of the Platform;
3. reverse engineer, decompile, decode, decrypt, disassemble, or derive any source code from the Platform;
4. remove, alter, or obscure any copyright, trademark, or other proprietary rights notice on or in the Platform;
5. upload, post, reproduce or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights;
6. restrict or inhibit any other company or user from using the Platform, including, without limitation, by means of “hacking” or defacing any portion of the Platform;
7. access or attempt to access parts of the Platform for which Customer is not authorized by Company, circumvent or attempt to circumvent any security or password protection on the Platform, access the Platform by any means other than through the interface that is provided and authorized by Company; or
8. transmit any software or other materials that contain any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature.

• Termination

1. Termination by Company. Company may terminate this Agreement at any time for any reason.
2. Termination for Material Breach. Each Party may terminate this Agreement with immediate effect by delivering notice of the termination to the other Party, if
1. the other Party fails to materially perform, has made or makes any inaccuracy in, or otherwise materially breaches, any of its obligations, covenants, or representations, and
2. the failure, inaccuracy, or breach continues for a period of thirty (30) days after the injured Party delivers notice to the breaching Party reasonably detailing the breach.
3. Termination for Failure to Pay. Company may terminate this Agreement with immediate effect by delivering notice of the termination to Customer if Customer fails to pay the Subscription Fee or any other fees or costs due to Company by Customer under this Agreement or otherwise. 

• Effect of Termination

1. Pay Outstanding Amounts. Customer shall immediately pay to Company all amounts outstanding as of the date of termination, including any amounts outstanding as a result of such termination. 
2. Termination of Access to Platform; Discontinuance of Use. Upon expiration or termination of this Agreement, Company may immediately terminate Customer’s and its Authorized Users’ access to the Platform and Services, and, unless Company elects to continue providing any portion of the Platform and/or Services to applicable Authorized Users, Customer and its Authorized Users shall cease all access to, and use of, the Platform and Services. Notwithstanding anything to the contrary herein, if Company elects to continue providing any portion of the Platform and/or Services to any Authorized User after the expiration or termination of the Term of this Agreement, the terms of this Agreement shall remain in effect with respect to such Authorized User’s use and access to the Platform and the Services and Customer shall owe to Company the Prorated Subscription Fee.
3. Recovery of Data. So long as all outstanding amounts owed to Company are paid, Customer will have sixty (60) days from the date of termination to retrieve any of Company’s Information that Customer wishes to keep. After the sixty (60) day period, Company shall have no obligation to retain any of Customer’s Information.

• Indemnification

1. Indemnification by Company.
1. Indemnification for Infringement Claims. Company shall indemnify Customer against all losses and expenses arising out of any proceeding
1. brought by a third party, and
2. arising out of a claim that the Platform infringes the third party's Intellectual Property rights.

• Notice and Failure to Notify

1. Notice Requirement. Before bringing a claim for indemnification, Customer shall
1. promptly notify Company of the indemnifiable proceeding,
2. deliver to Company all legal pleadings and other documents reasonably necessary to indemnify or defend the indemnifiable proceeding, and
3. provide all reasonable assistance necessary or advisable in the defense of such claim.
2. Failure to Notify. If the Customer fails to notify Company of the indemnifiable proceeding, Company will be relieved of its indemnification obligations. Company shall not be liable for any detriment to Customer to the extent arising out of any delay on the part of Customer in timely notifying Company of any indemnifiable proceeding.
3. Exclusions.  Company will not be required to indemnify Customer if the claim is the result of: (i) the combination, operation, or use of the Services or the Platform with third party software, services or other products or materials not furnished by Company (unless done so at Company’s direction), (ii) the modification by Customer or any third party of the Services or the Platform (unless done so at Company’s direction); (iii) Customer’s improper use or misuse of the Services or the Platform (including without limitation, in violation of applicable laws, rules or regulations or this Agreement); (iv) Company’s compliance with Customer’s instructions; (v) any breach or alleged breach by Customer of this Agreement, or (vi) Customer’s gross negligence or willful misconduct.
4. Exclusive Remedy. Customers' right to indemnification is the exclusive remedy available with respect to a claim of indemnification.
1. Indemnification by Customer.  Customer shall defend, indemnify and hold Company, its Affiliates, and their respective equity owners, directors, managers, officers, employees, agents, and representatives, harmless from and against any and all awards, liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees) arising out of or related to: (a) the use of the Products or Services by Company, the Authorized Users, or their respective employees, agents, or representatives, in a manner inconsistent with this Agreement, and/or (b) the negligence or willful misconduct of the Company, the Authorized Users, or their employees, agents, or representatives.  
1. DISCLAIMER OF WARRANTY; LIMITATION ON LIABILITY
1. USE OF PLATFORM AND SERVICES.  CUSTOMER’S USE OF THE PLATFORM AND SERVICES IS AT CUSTOMER’S OWN RISK.  COMPANY (i) DOES NOT WARRANT THAT THE PLATFORM AND SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE OR VIRUS-FREE; (ii) SHALL HAVE NO LIABILITY FOR THE ACCURACY, COMPLETENESS OR TIMELINESS OF ANY CUSTOMER’S INFORMATION; (iii) DOES NOT WARRANT THAT CUSTOMER, IN USING THE PLATFORM AND SERVICES, WILL OBTAIN THE RESULTS THAT CUSTOMER INTENDS, OR THAT THE PLATFORM AND SERVICES WILL BE ADEQUATE FOR OR ACHIEVE THE BUSINESS PURPOSES AND REQUIREMENTS OF CUSTOMER; (iv) DOES NOT MAKE ANY WARRANTIES OF ANY KIND, NOR SHALL HAVE ANY LIABILITY OR RESPONSIBILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY-APPLICATIONS, CUSTOMER’S USE OR THE INABILITY TO USE THE PLATFORM, ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, OR ANY BUGS, VIRUSES, WORMS, TROJAN HORSES, DEFECTS, DATE BOMBS, TIME BOMBS OR OTHER ITEMS OF A DESTRUCTIVE NATURE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM BY ANY THIRD PARTY.
2. AS IS; WHERE IS.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM, THE SERVICES, THE MATERIALS AND INFORMATION ON THE PLATFORM, AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM, THE SERVICES, THE MATERIALS, AND ANY PRODUCT OR SERVICE OBTAINED THROUGH THE PLATFORM, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.  
3. Maximum Liability. Neither Party's liability under this Agreement will exceed the fees paid by such Party under this Agreement during the twelve (12) months preceding the date upon which the related claim arose.

• General Provisions

1. Entire Agreement. This Agreement represents the entire understanding between the parties with respect to its subject matter and supersedes any previous communication or agreements that may exist.
2. Amendment. This Agreement can be amended only by a writing signed by both parties.
3. Assignment. Customer shall not assign this Agreement or any of its rights or obligations under this Agreement without Company’s prior written consent.

• Notices

1. Method of Notice. The Parties shall give all notices and communications between the Parties in writing by (i) personal delivery, (ii) a nationally-recognized, next-day courier service, (iii) first-class registered or certified mail, postage prepaid, (iv) fax, or (v) electronic mail to the Party's address specified on the first page of this Agreement, or to the address that a Party has notified to be that Party's address for the purposes of this section.
2. Receipt of Notice. A notice given under this Agreement will be effective on
1. the other Party's receipt of it, or
2. if mailed, the earlier of the other Party's receipt of it and the fifth (5^th) business day after mailing it. 
1. Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Illinois without regard to its conflict of laws rules.
2. Severability. If any part of this Agreement is declared unenforceable or invalid, the remainder will continue to be valid and enforceable.
3. Waiver. The failure or neglect by a Party to enforce any of rights under this Agreement will not be deemed to be a waiver of that Party's rights. 
4. Force Majeure. A Party shall not be liable for any failure of or delay in the performance of this Agreement for the period that such failure or delay is
1. beyond the reasonable control of a Party,
2. materially affects the performance of any of its obligations under this Agreement, and
3. could not reasonably have been foreseen or provided against, but
4. will not be excused for failure or delay resulting from only general economic conditions or other general market effects.
5. Execution in Counterparts.  This Agreement may be executed in multiple counterparts (including by facsimile, e-mail and other electronic means), which shall be deemed to be one and the same instrument and each of which shall be deemed enforceable without production of the others.
6. WAIVER OF TRIAL BY JURY.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTER¬CLAIM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER. 

EXHIBIT B

SERVICE LEVEL AGREEMENT

Agreement Overview

This Agreement represents a Service Level Agreement (“SLA” or “Agreement”) by and between Hyperlocology, LLC, a Delaware limited liability company (the “Company”) and _____________________ (the “Customer”) for the provisioning of [services required to support and sustain Customer’s use of the Hyperlocology platform (the “Platform”).

The following detailed service parameters are the responsibility of the Company in the ongoing support of this Agreement. 

1.1 Service Scope

The following Services are covered by this Agreement; 

• Monitored email support
• Remote assistance using Remote Desktop and a Virtual Private Network where available
• Monthly system health check

1.2. Customer Requirements

Customer responsibilities and/or requirements in support of this Agreement include: 

• Payment for all support costs at the agreed interval.
• Reasonable availability of customer representative(s) when resolving a service-related incident or request.

1.3 Company Requirements

Company responsibilities and/or requirements in support of this Agreement include: 

• Meeting response times associated with service-related incidents.
• Appropriate notification to Customer for all scheduled maintenance.

1.4 Service Assumptions

Assumptions related to in-scope services and/or components include:

• Changes to services will be communicated and documented to all parties.
• Severity Levels for support issues is as outlined below:

2. Service Management

Effective support of in-scope services is a result of maintaining consistent service levels. The following sections provide relevant details on service availability, monitoring of in-scope services, and related components.

2.1 Service Availability

Coverage parameters specific to the service(s) covered in this Agreement are as follows

• Email support: Monitored 9:00 A.M. to 5:00 P.M. Monday – Friday, Eastern Time, excluding all state and federal holidays
• Emails received outside of office hours will be collected, however, no action can be guaranteed until the next working day.
• Initial Support. During the Initial Term (as such term is defined in the Subscription Agreement), Company will provide email support at no charge to Customer.
• Renewed Support.  During any Renewal Term (as such term is defined in the Subscription Agreement), Company will provide email support to Customer at Company’s then-current service rates.

2.2 Support Service Requests

In support of services outlined in this Agreement, the Company will respond to support service-related incidents and/or requests submitted by the Customer Brand Team within the following time frames: 

• 0-8 hours (during business hours) for issues classified as High priority.
• Within 48 hours for issues classified as Medium priority.
• Within 5 working days for issues classified as Low priority.

Remote assistance will be provided in-line with the above timescales dependent on the priority of the support request.

3. Account Management Agreement

The following detailed account management parameters are the responsibility of the Company in the ongoing support of this Agreement. 

3.1 Account Management Scope

The following Account Management services are covered by this Agreement; 

• Monitored email support
• Account enablement and program kick-off webinar (prior to launch)
• Monthly Account reviews
• Platform onboarding enablement webinar
• Quarterly business reviews

3.2 Customer Requirements

Customer responsibilities and/or requirements in support of this Agreement include: 

• Payment for all support costs at the agreed interval.
• Reasonable availability of Customer Representative when resolving an account-related incident or request.

3.3  Account Management Provider Requirements

Company responsibilities and/or requirements in support of this Agreement include: 

• Meeting response times associated with account-related incidents or requests.
• Appropriate notification to Customer for all scheduled meetings, reporting, enablement tasks.

3.4 Account Management Assumptions

Assumptions related to in-scope services and/or components include:

• Changes to account management and service will be communicated and documented to all parties in a reasonable time.

Effective account support of in-scope services is a result of maintaining consistent service levels. The following sections provide relevant details on service availability, monitoring of in-scope account management, and related components.

4.1 Account Management Availability

Coverage parameters specific to the account management service(s) covered in this Agreement are as follows

• Email support: Monitored 9:00 A.M. to 5:00 P.M. Monday – Friday, Eastern Time, excluding state and federal holidays
• Emails received outside of office hours will be collected, however, no action can be guaranteed until the next working day.

4.2 Account Management Requests

In support of services outlined in this Agreement, the Company will respond to account management-related incidents and/or requests submitted by the Customer Brand Team within the following time frames: 

• 0-8 hours (during business hours) for issues classified as High priority.
• Within 48 hours (during business hours) for issues classified as Medium priority. 
• Within 5 business days for issues classified as Low priority.

Company will maintain commercially reasonable disaster recovery procedures for emergent situations, including the storage and retrieval of information maintained in Company’s possession, as established by Company policy from time to time.

Effective as of January 1, 2023