These Hapana Customer General Terms and Conditions (“Terms”) (as may be updated by Hapana from time to time in its sole discretion), governs your access to and use of the Online Subscription Based Service (as defined below). These Terms together with any Statement of Work (as defined below) that references these Terms, [and supplemental or ancillary terms posted on Hapana’s website or referenced in the Statement of Work] form the “Agreement”. The Agreement is by and between (a) Hapana USA Corp. (“HPNA” or “Hapana”), and (b) you or the entity identified on the Statement of Work or which you identify when registering or using the Online Subscription Based Service (“Customer”, “you” or “your”). By (i) clicking an “I Accept” or similar button or check box presented with your access to or use of the Online Subscription Based Service, or (ii) executing a Statement of Work (as defined below) that references these Terms, Customer agrees to be legally bound to this Agreement, including these Terms. If you are using the Online Subscription Based Service for an entity or purporting to enter into this Agreement for an entity, such as the company you work for, you represent and warrant that you have legal authority to bind that entity to this Agreement.

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1. Definitions and interpretation

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1.1. Definitions

“Account Information” means information about the Location provided to Hapana in connection with the creation or administration of theLocation Account. For example, Account Information includes End User names,usernames, phone numbers, email addresses and billing information associatedwith the Location account.

“Additional Services” means any additions to the Services set forth in the initial SOW(s)being executed and delivered in connection with this Agreement.

“Authorized Affiliate” means any Customer Affiliateauthorized to use HPNA’s Online Subscription Based Services and DigitalComponent (and Customer specific services and content associated with the useof HPNA’s Online Subscription Based Services and Digital Component), subject tothe terms of an agreement entered into by Customer and the AuthorizedAffiliate.  

“Commencement Date” means the date specified in the first applicable SOW.

“Confidential Information” means the confidential information of a partyand includes information relating to the business and affairs of a party andall information of a confidential nature provided by that party to the otherparty or otherwise obtained by the other party which (i) is not readilyavailable in the public domain; or (ii) if part of the public domain, becamepart of the public domain as the result of an unauthorized disclosure by theother party in breach of this Agreement.

“Consequential Loss” means any loss or damage which does not arise naturally or in the usualcourse of things from the breach; any lost revenue, lost profits, lostbusiness, lost goodwill, lost anticipated savings or any other indirect,consequential, special, economic or punitive loss or damages, whether arisingfrom or in connection with any breach of contract, negligence or any othercause of action arising under or in connection with this Agreement.

“Customer Affiliate(s)” means an entity operating a location under Customer Marks which iseither: (i) corporately owned and operated by Customer; (ii) owned or operatedby a third party that is party to a franchise, brand license or similaragreement with Customer; or (iii) otherwise agreed in writing between theparties to be deemed a Customer Affiliate.

"Customer Data” means any data associated with the Location’s products, staff, contractors and both active andinactive customers that is provided by Customer, a Customer Affiliate, or aLocation to Hapana pursuant to this Agreement; and any other content, data,information or material that is posted, uploaded, submitted, inputted, playedor otherwise distributed by Customer, a Customer Affiliate, a Location, or anEnd User using the Services pursuant to this Agreement or any End User LicenseAgreement (including any content, data, information or materials that isposted, uploaded, submitted, inputted, played or otherwise distributed usingthe Online Subscription Based Service or the Online Delivery Platform).

“Customer Marks” means Customer and itsaffiliates’ brand, logos or trademarks, whether registered or unregistered.

“Deliverable(s)” means all outputs or deliverablesprovided by HPNA to Customer in connection with the Services and relevant SOW.

“Digital Component” means HPNA’sonline streaming service and/or on-demand content service as made available byHPNA to Customer.

“Documentation” means any and all information, instructions and guidelines HPNAprovides or makes available to Customer via Cloud based storage which describethe functionality, components, features or requirements necessary to seek tomaximize the value of HPNA’s Online Subscription Based Services to Customer,including any aspect of the installation, configuration, integration,operation, use, support or maintenance thereof. Documentation includes usermanuals, installation instructions, reference material and other relevantpublication and aids and any updates, replacements, revisions and additions (ifany) provided or made available by Hapana or its Affiliates to Customer or anyLocation from time to time in a hard copy, electronic or online format.

“End User(s)” means any person authorized to use the Services,subject to the terms of an End User Agreement and/or a Location Agreement withCustomer or a Customer Affiliate.

“End User Agreement” means an agreement between Customer and/orCustomer Affiliates and their respective End Users with respect to access tothe Online Subscription Based Services and content provided by Customer to EndUsers of the Service.

“Error” meansa reproducible failure of the Online Subscription Based Services tosubstantially conform to Customer requested functional specifications for theOnline Subscription Based Services and applicable Online Delivery Platform and DigitalComponent.

"HPNA Content” means any software (including machineimages), documents, data, text, audio, video or images that Hapana or any ofits Affiliates make available to the Customer, any Location, or any End User inconnection with the Services, including the Documentation and other relatedmaterials. The Hapana Content excludes the Services.

“HPNA IP”means HPNA’s brand, logos or trademarks, and Intellectual Property, whetherregistered or unregistered, including information, knowledge and know how related to the provision of Online Subscription Based Services to Customer, includingHPNA Content, as well as any updates, upgrades and modifications made to theOnline Subscription Based Services or Digital Component from time to time.

“Intellectual Property” means, with respect to either party, any and all intellectual propertyrights and intangible assets throughout the world, including without limitation rights pertaining to copyright, trademark, design, patent, know-how and tradesecrets, of such party.

“Law” mean sall applicable laws, rules and regulations.

“Location” means the physical location owned by Customer and/or a Customer Affiliate and/or from which Customer or any Customer Affiliate provides services under any Customer Marks from time to time.

“Location Agreement” means the agreement between Hapana and any Location with respect to such Location’s use of the Online Delivery Platform and the Services, and which must be entered into by each Location in order for the Location to use the Services as contemplated by this Agreement.

“Online Delivery Platform” means the cloud based delivery format by which Customer will access HPNA’s Online SubscriptionBased Service.

“Online Subscription Based Service” means the services that are provided by HPNA to Customer via Customer accessing HPNA’s delivery platform for a Subscription Fee, which HPNA agrees to allow Customer,Customer Affiliates and End Users to access in accordance with the terms of this Agreement and as set forth in any applicable SOW. In HPNA providing access its Online Subscription Based Service, Customer acknowledges that HPNA will deliver this access via an Online Delivery Platform and, as such, will not receive a physical copy of the basis on which the services have been developed, displayed or accessed. Customer also acknowledges that in accessing HPNA’s Online Subscription Based Services,Customer will not own or have rights over HPNA’s Online Subscription Based Services,Online Delivery Platform, Payment Services, or Digital Component or any HPNAIP.

“Payment Services”means payment processing and related services.

“Payment Services Terms” means the terms and conditions which apply to the Payment Services set out at https://hapana.com/legal/brand-agreement-payment-services-terms-us, as updated from time to time by HPNA in its sole discretion.

“Service Fee” means any applicable fee set out in each applicable SOW, other thanSubscription Fees.

“Services”means any and all services provided by HPNA to Customer pursuant to thisAgreement and any applicable SOW.

“SOW” or“Statement of Work” is a signed written statement of work, order form,purchase order, or other document entered into hereunder between the parties,setting forth, among other things, the specific services and Deliverables to beprovided by HPNA and the fees to be paid by Customer in respect thereof.  

“Subscription Fee” means the fee set out in the applicableSOW that is payable based on the number of Customer locations using HPNA’s Online Subscription Based Servicesand Digital Component.

“Territory”means the geographic territory specified in the applicable SOW.

“Updates” means updates, revisions or additions to the OnlineSubscription Based Services or Digital Component (i) provided by HPNA toCustomer under this Agreement or a related SOW, and (ii) offered during theTerm to customers of HPNA that are similarly situated to Customer, that ineither case are intended to correct errors/bug fixes, improve efficiency or incorporateadditional or alternative functionality, but that do not constitute Upgrades.

“Upgrade” means a new release of the Online Subscription BasedServices or Digital Component provided by HPNA to Customer under thisAgreement, as such Upgrade is offered during the Term to customers of HPNA thatare similarly situated to Customer, and that incorporates substantialadditional or alternative functionality. HPNA shall be under no obligation tomake any particular Upgrades.

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1.2. Interpretation

In this Agreement unless the context otherwise indicates:

(a) references to any party shall include the executors, administrators, successors and permitted assigns of that party;

(b) words importing the singular shall include the plural and vice versa, words importing a gender shall include other genders and references to a person shall be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi- governmental and local authority or agency;

(c) where any word or phrase is given a defined meaning in this Agreement, any other part of speech or other grammatical form in respect of such word or phrase shall have a corresponding meaning;

(d) headings included in this Agreement are for convenience only and shall be disregarded in the construction of this Agreement;

(e) neither this Agreement nor any part of it is to be construed against a party on the basis that the party, or its lawyers, were responsible for its drafting; and

(f) if there is a conflict or inconsistency between a provision of these Terms and a provision of any SOW, Exhibit and/or Addendum, the provision of these Terms shall control unless the applicable SOW, Exhibit and/or Addendum expressly states otherwise.

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2. Access to Services

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2.1. Access Generally

(a)   Subject to the terms and conditions of this Agreement, HPNA hereby provides Customer with non-transferrable (except as set forth herein), non-exclusive and non-assignable (except as set forth herein) right to access to and use of the Online Delivery Platform, Online Subscription Based Services, Payment Services and related Digital Component during the Term.

(b)   Customer acknowledges and agrees that in order for any Location to use the Services, such Location must enter into and comply with the Location Agreement. Notwithstanding any other provision in this Agreement, Hapana is not required to provide use of the Services to any Location that does not enter, or is in breach of, a Location Agreement.

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2.2. Payment Services

(a)   Where the Online Subscription Based Services include Payment Services, the Payment Services Terms will apply to the provision of the Payment Services.

(b)   In the event of any conflict or inconsistency between the terms and conditions of the Payment Services Terms and the terms and conditions of the remainder of this Agreement, the terms and conditions of the Payment Services Terms prevail to the extent of such conflict or inconsistency concerns the Payment Services.

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2.3. Usage Conditions

(a) Except pursuant to this Section 2.3, the access granted by HPNA to Customer under this Agreement may not be assigned or sub-licensed by Customer without the prior written consent of HPNA, which consent may not be unreasonably withheld, conditioned or delayed.

(b) Customer may permit End Users to access and use the Online Subscription Based Services solely pursuant to an End User Agreement executed by the End User and Customer or a Customer Affiliate. Access rights of any End User (for example on a named or password enabled basis) cannot be shared or used by more than one individual.

(c) A Customer Affiliate may access and use the Online Subscription Based Services and related Digital Component as set forth in an applicable SOW in connection with the provision of Services by any Customer Affiliate, subject to the following conditions:  

(1) Customer submits written notification to HPNA setting forth the name, and address of Customer Affiliate and all Locations owned and/or operated by such Customer Affiliate, which notification shall continue to be updated during the Term;

(2) Customer enters into a binding agreement with each such Customer Affiliate in which such affiliate agrees to be bound by terms and conditions relating to the use of the Online Subscription Based Services and Digital Component and confidentiality consistent with, and at least as restrictive as, those contained herein and in all applicable SOWs;

(3) Customer pays all costs and fees and other amounts owed to HPNA as a result of Customer Affiliates’ use of the Online Subscription Based Services and Digital Component (except to the extent such costs and fees shall have been disputed in good faith consistent with this Agreement); and

(4) Any action or inaction by a Customer Affiliate that would be a breach by Customer if Customer had engaged in such action or inaction shall be deemed a breach of this Agreement by Customer, and Customer shall be responsible for all breaches of any obligations under this Agreement and the applicable SOW(s) by Customer and/or any Customer Affiliates.

(d) Neither Customer nor any Customer Affiliate shall create or permit to exist a security interest or encumbrance over the Online Subscription Based Services and Digital Component or any HPNA IP. Customer must ensure that any Location does not disclose, make available, display, demonstrate or otherwise provide the Services (or any part or component of the Services) to any third party (other than an End User).

(e) Customer agrees that Hapana will be the exclusive supplier of the Online Subscription Based Services and Online Delivery Platform to Customer and any Location, and Customer and/or any Location must not itself perform, or separately or independently source, or engage a third party to supply goods or services that are the same as or substantially similar to the Online Subscription Based Services and Online Delivery Platform, including the provision of business management and operations services, during the Term.

(f) Customer will notify all Locations that every Location must use the Online Subscription Based Services and Online Delivery Platform. If, for any reason, any Location does not use the Online Subscription Based Service or Online Delivery Platform, Customer must use commercially reasonable efforts (which may include sending a letter requiring that the Location use the Online Subscription Based Service or Online Delivery Platform or notifying the Location that continue refusal to use the Online Subscription Based Service or Online Delivery Platform may result in further legal action).

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2.4. Information and Documents

(a) Customer must, within a time that does not delay Hapana in providing the Services, obtain all necessary licenses and make available to Hapana all the information, documents and other details, access and permissions required for Hapana to provide the Services as requested by Hapana from time to time, including any Account Information.

(b) Customer must ensure the accuracy, completeness and correctness of all information provided by it to Hapana. For the avoidance of doubt, Hapana will not be required to check the Location Information for accuracy, completeness or correctness and may rely on the all information provided by Customer as if it were accurate, complete and correct.

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3. Term

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(a) The Term of this Agreement commences on the Commencement Date and will continue in force until the termination or expiration of all SOWs (including any period of transition period following the termination or expiration of an SOW).

(b) Unless otherwise set forth in an SOW, an SOW shall have an initial term of three (3) years (the “Initial Term”) beginning on the Commencement Date. After the Initial Term, each SOW will automatically renew for successive renewal term(s) of 3 years each subject to the termination rights set forth herein, unless either party gives written notice to the other party that it wishes to cease the automatic renewal a minimum of one hundred and twenty (120) days prior to the end of the then-current Term.

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4. Intellectual Property Rights

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4.1. Title

(a) Each party acknowledges that in the operation of this Agreement, there is no transfer of ownership or assignment of the other party’s Intellectual Property or intangibles, generated either prior to or as a result of the operation of this Agreement. Under this Agreement, HPNA is not granting Customer a license of any kind or the right to use its Intellectual Property, other than access to the Online Subscription Based Services and Digital Components as set forth herein or in any applicable SOW. Customer acknowledges that HPNA retains exclusive right, title, possession and control of the know-how and information used in the provision of the Online Subscription Based Services, Online Delivery Platform and Digital Components, including any updates, improvements, or upgrades of its Intellectual Property, and all results and proceeds of HPNA’s Services.

(b)Except as expressly set out in this Agreement and as permitted as part of transition on termination or as permitted by any applicable local Law, Customer agrees and undertakes: (i) not to copy any software elements used in the provision of the Online Subscription Based Service and Digital Component, (ii) not to rent, lease, license, loan, the Online Subscription Based Service and Digital Component, Deliverables or information, knowledge, know how related to the use of the Online Subscription Based Service and Digital Component, and (iii) not to make alterations to, or modifications of, translate, merge, adapt, vary or modify the whole or any part of the Online Subscription Based Service and Deliverables, nor permit the Online Subscription Based Service and Deliverables or any part thereof to be combined with, or become incorporated in, any other programs.

(c) Customer shall permit HPNA, on reasonable advance notice, to inspect and have access to any premises at which the Online Subscription Based Service and Deliverables are being used, and to any records, data or information kept pursuant to this Agreement, for the purpose of ensuring that Customer is complying with the terms of this Agreement.

(d) Customer (and as applicable, any Customer Affiliate, Location, or End User) hereby permanently and irrevocably assigns to HPNA all right, title and interest in and to all comments, observations, suggestions and other feedback submitted to HPNA (“Feedback”), with rights to sublicense to reproduce, prepare derivative works of, perform, display, distribute, and otherwise use such Feedback without compensation, restriction or obligation of any kind. Customer will cooperate with HPNA, at HPNA’s cost and expense, to execute any documentation necessary to effectuate the foregoing assignment.

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4.2. Data

The parties acknowledge and agree that as between Customer and HPNA, any and all data specifically identifying any End User, including customer information and all other information relating to identified End Users resulting from Authorized Affiliates’ and/or and End User’s use of the Online Subscription Based Service, Digital Component and/or Deliverables pursuant to any SOW (“Customer Data”) is and will be Customer’s sole and exclusive property. However, notwithstanding anything to the contrary set forth in this Agreement and/or any SOW, Schedule and/or Exhibit hereto, the parties further acknowledge and agree that: (i) all non-personally identifiable data, extracts and other outputs created or generated by or through use of the Online Subscription Based Service and/or Deliverables (“Output”), is and will be HPNA’s sole and exclusive property, and that HPNA may use, adapt, modify and/or aggregate such Output with other information and/or data, or grant others the right to use, adapt, modify and/or aggregate the Output with other information and/or data, as permitted by law, as HPNA deems appropriate, without notice or compensation to any third party, including but not limited to Customer and/or any Customer Affiliate; (ii) HPNA shall have the right to modify Customer Data by deidentifying it so that it does not reasonably identify, relate to, describe, be capable of being associated with, or be linked directly or indirectly to a particular individual (the “Deidentified Information”), and provided that HPNA: (A) has technical safeguards that prohibit reidentification of the individual to whom the information may pertain; (B) has implemented business processes designed to prevent inadvertent release of this deidentified information, and (C) makes no attempt to reidentify the information, then such Deidentified Information may be combined with other non-personally identifiable and/or deidentified data so that it: (1) relates to a group or category of individuals; (2) does not include any individual identities or identifiers; and (3) is not linked or reasonably linkable to any individual, household, or device used by an individual, then the information (collectively, “Aggregate Information”), and (iii) that such Aggregate Information is and will be HPNA’s sole and exclusive property, and that HPNA may use may use, adapt, modify and/or aggregate such Aggregate Information with other information and/or data, or grant others the right to use, adapt, modify and/or aggregate the Aggregate Information with other information and/or data, as permitted by law, as HPNA deems appropriate, without notice or compensation to any third party, including but not limited to Customer and/or any Customer Affiliate.

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5. HPNA’s Obligations

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5.1. Support

HPNA will supply Customer with the following support Services during the Term of this Agreement:  

(a) During HPNA’s regular business hours, HPNA will provide basic business and technical support subject to force majeure, including verbal and written communications detailing operational instructions, problem reporting and assistance in using the Online Subscription Based Service and Digital Component, as further detailed in the applicable SOW;

(b) HPNA may from time to time, in its sole and absolute discretion, provide Updates to Customer; and

(c) HPNA will supply Customer with Error correction Services during the Term of this Agreement in accordance with the Service Level Schedule attached to the applicable SOW (if any).  

5.2. Other services. HPNA may provide Additional Services (including without limitation further consulting Services and development Services) to Customer as mutually agreed upon in an SOW or other signed writing between the parties, for example, modifying or customizing the Online Subscription Based Service and Digital Component or any Updates or Upgrades, subject to Customer’s payment or other obligations as set forth in such signed writing. HPNA shall not be obligated to provide any Additional Services unless the parties have entered into a SOW setting forth the scope of the Additional Services and the terms upon which such services shall be provided.

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6. Customer Obligations

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6.1. Online Subscription Based Service

(a) Customer shall ensure that the Online Subscription Based Service, Online Delivery Platform and Digital Component and HPNA IP are protected from misuse, damage, attempts to copy or reverse engineer or any form of unauthorized use by any Customer Affiliate or End User to whom Customer provides access.

(b) Customer must immediately notify HPNA in writing if Customer or any Customer Affiliate becomes aware of any potential form of misuse, damage, attempts to copy or reverse engineer or unauthorized use has occurred or is suspected to have occurred to the Online Subscription Based Service or HPNA IP. If Customer so notifies HPNA, HPNA may, in its discretion, take such action as it deems reasonably appropriate.

(c) Customer must not (and must ensure that any Customer Affiliate does not) reverse engineer, reverse assemble, disassemble or decompile the Online Subscription Based Service, Online Delivery Platform or Digital Component or otherwise attempt to discover any source code, algorithms, trade secrets or other proprietary rights embedded in or relating to any HPNA IP by any means whatsoever.

(d) Customer shall supply HPNA with any information, documents or materials in its possession with respect to the HPNA IP as reasonably requested by HPNA.

(e) Customer shall respond to any reasonable inquiries or complaints by HPNA regarding the Online Subscription Based Service, Online Delivery Platform or Digital Component in a prompt and professional manner.

(f) Customer shall only use (and shall ensure that Customer Affiliates only use) the Online Subscription Based Service strictly in accordance with the terms of this Agreement and only in the defined Territory, except as otherwise mutually agreed upon between the parties in writing.

(g) To the extent that the parties mutually agree in an SOW that HPNA that the “out of the box” features, functionality or components are to be specifically modified for Customer or any Customer Affiliates or End Users (as applicable “Customer Modifications”), then Customer shall be responsible for the compliance by any such Customer Modifications with applicable Laws, rules and regulations; provided however, HPNA shall notify Customer in writing if HPNA receives a written notice or communication from a governmental authority or regulator asserting that any such Customer Modifications do not comply with all applicable Laws, rules and regulations.

(h) Customer shall ensure that all environment(s) used by Customer and/or Customer Affiliates to enable End Users’ access to the Online Subscription Based Service or content generated via the Digital Component, including but not limited to network routers and firewalls (should those be in place) are correctly configuring and maintained to allow data to flow into the Online Subscription Based Service, Online Delivery Platform and Digital Component in a secure manner.

(i) The provisioning, security, support, and maintenance of Customer’s and its Affiliates’ Local Area Network(s) and of all network equipment, network and Internet connections, computing devices all software and other hardware operating on such equipment, and all APIs provided by or on behalf of Customer and/or any Customer Affiliate to HPNA and/or to the End Users are the responsibility of Customer.

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6.2. Identification of Locations

(a) The parties acknowledge and agree that Locations will generally be either a new or existing location of Customer that is operated under Customer’s brand which is either: (i) owned or operated by Customer; or (ii) owned or operated by a third party that is party to a franchise, brand license or similar agreement, arrangement or understanding with Customer; or

(b) Customer must:

(1) on or prior to the Commencement Date, and on request by Hapana during the Term, promptly provide a current list of all Locations using the Online Subscription Based Services and Online Delivery Platform (with a breakdown of the Locations into the relevant categories described above);

(2) for each Location that is an existing location, ensure that all such Locations migrate onto the Online Subscription Based Services and Online Delivery Platform before the end of the migration period. If Customer fails to comply with this clause, the parties agree that the Initial Term will be automatically extended by an amount of time equal to the additional period of time beyond a reasonable migration period until Customer has complied with its obligations under this clause 6.2(b)(2). Hapana will provide notice to Customer of any such extension, provided that failure to provide such notice will not in any way impact the effect of this clause 6.2(b)(2);

(3) for each Location that is a new location, ensure that all such Locations migrate onto the Online Subscription Based Services and Online Delivery Platform on or before the relevant opening date for the Locations;

(4) ensure that on or before the actual date of migration of the relevant Location onto the Online Subscription Based Services and Online Delivery Platform (i.e. both existing locations and new locations), the relevant Location enters into the current form of the Location Agreement; and

(5) if required by Hapana, promptly provide a copy of all Location Agreements and/or End User Agreements to Hapana to ensure compliance with this Agreement.

(c) Customer must ensure that only Locations and End Users that are authorized under this Agreement to access or use the Services are using or accessing the Services. Customer must ensure that each Location complies with Customer’s and the Location’s obligations under this Agreement, the Location Agreement, and/or the End User Agreement. Customer is liable for the acts and omissions of any Location as if a Location’s acts and omissions were those of Customer itself.

(d) Without limiting clause 6.2(b):

(1) in addition to the exclusivity rights set out in clauses 2.3(e) and 2.3(f), Customer, on its own behalf and on behalf of each Location, grants Hapana the first right of refusal for Hapana to supply to each of Customer’s or any Location’s locations within the Territory services that are the same as or similar to the Online Subscription Based Services and Online Delivery Platform, including the provision of business management and operations services;

(2) if Customer (or any Customer Affiliate or Location) opens a new location or begins operations outside of the Territory, Customer grants Hapana the right of first refusal to provide relevant Online Subscription Based Services and Online Delivery Platform to Customer (or Location) in the new Territory under terms comparable to those within this Agreement. If Hapana is unable to provide such services to Customer in the new Territory, Hapana will notify Customer at the earliest possible opportunity;

(3) Customer must promptly notify Hapana of any new locations opened or acquired by Customer, a Customer Affiliate or a Location, regardless of their location, and use reasonable efforts to cause such new location to use the Services;

(4) If HPNA wishes to supply the Online Subscription Based Services and Online Delivery Platform to the location:

(A) Customer must use reasonable efforts to ensure that the new location enters into a Location Agreement, if the relevant location is not already party to an End User Agreement; and/or

(B) Customer must negotiate, acting reasonably and in good faith, with Hapana in respect of any amendments to this Agreement requested by Hapana if the location is located outside the Territory.

(e) Customer is primarily responsible for informing any Location about the relevant terms and conditions of this Agreement that apply to such Location. Notwithstanding the preceding sentence, in no event is Hapana prohibited from communicating directly with a Location or an End User.  

(f) Where Hapana receives an instruction or directive from a Location, Hapana will be entitled to comply with such instruction or directive with respect to providing the Services to such Location. Notwithstanding the foregoing, Customer will hold harmless, defend and indemnify Hapana for any loss, claim or damages arising out of or related to Hapana’s acts or omissions in compliance with Customer’s instruction or directive for the purposes of this clause 6.2(f) (including any claim by the Location).

(g) Customer shall immediately notify HPNA if, at any time during the Term, Customer (or a Customer Affiliate) rebrands its business or operates any part of its business (whether existing, new, or acquired) under a different brand, and the parties shall add the new or additional brand to the brand in an applicable or new SOW through a formal amendment executed by both parties. For the avoidance of doubt, any new or addition brand is considered to be the brand for purposes of this Agreement.  

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6.3. Protection of HPNA IP and Online Subscription Based Service, Online Delivery Platform and Digital Component

(a) Customer must use HPNA IP strictly in accordance with this Agreement, any applicable SOWs and applicable Law and, if applicable, HPNA’s specifications and written direction set forth in the Documentation or a SOW.

(b) Customer must reasonably cooperate with HPNA to protect HPNA IP from any unauthorized use.

(c) Customer shall, during the Term:

(1) take any such steps as HPNA may reasonably require to assist HPNA in maintaining the validity, enforceability and HPNA’s ownership of the all Intellectual Property rights associated with the development of and use of the Online Subscription Based Service, Online Delivery Platform and Digital Component and the Documentation;

(2) promptly notify HPNA in writing if Customer becomes aware of:

(A) any actual or suspected infringement, misappropriation or other violation of HPNA IP; or

(B) any claim that the HPNA IP, including any production, use, marketing, sale or other disposition of the Online Subscription Based Service, Online Delivery Platform, Digital Component or Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property rights or other rights of any person; and

(C) fully cooperate with and assist HPNA in all reasonable ways in the conduct of any claim, suit, action or proceeding by HPNA to prevent or abate any actual or threatened infringement, misappropriation or violation of HPNA’s rights in, and to attempt to resolve any claims relating to, the Online Subscription Based Service, Online Delivery Platform, Digital Component or Documentation, including having Customer’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.

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6.4. Basic Representations and Warranties

(a) Each party represents, warrants and covenants to the other party that:

(1) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

(2) it has the full right, power and authority to enter into and perform its obligations under this Agreement;

(3) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and

(4) it (a) shall comply with regulatory guidance and requirements, and national, state, regional and Laws applicable to it under this Agreement; and (b) does not and will not in violation of applicable Law, rule, regulation, policy, or practice (i) discriminate in hiring on the basis of race, color, national origin, gender, religion, sexual orientation, or any other legally protected characteristic, (ii) utilize child labor, prison labor, or indentured or forced labor in the operation of its business, or (iii) authorize, offer, accept, or promise to accept, any payment or transfer of anything of value to secure an improper advantage or to influence a person to misuse his or her position or perform any other action that is otherwise illegal under applicable anti-corruption Laws.

(b) Customer further represents, warrants and covenants that Customer will:

(1) be responsible for providing instructions, guidelines and requirements for use by all End Users of the Online Subscription Based Service and/or any Deliverable;

(2) be responsible for the actions of all End Users in connection with the End Users’ use of the Online Subscription Based Service and Deliverables;

(3) ensure that all uses of the Online Subscription Based Service and Deliverables by or through Customer and/or any Customer Affiliate shall comply with all applicable Laws, rules and regulations; and

(4) obtain, or cause to be obtained, all rights, consents and licenses necessary for use of all content and other materials, provided, uploaded and/or made accessible by or on behalf of Customer, any Customer Affiliate and/or any End Users in connection with any use of the Online Subscription Based Service and/or any Deliverables provided pursuant to this Agreement and/or under any SOW.

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7. Fees

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7.1. Payment

(a) All fees, charges and other amounts payable by Customer and/or any Customer Affiliate under any SOW (including all Subscription Fees, Service Fees and reimbursable costs and expenses (if any) (collectively “SOW Amounts”)) shall be payable monthly via payment card, and shall be paid within 15 days of the receipt of the applicable invoice.

(b) Customer acknowledges that it is responsible for payment to HPNA of all Subscription Fees on behalf of all Customer Affiliates for all such Locations (including, for the avoidance of doubt, for any fees and charges in connection with the Payment Services).

(c) Unless otherwise agreed to in an applicable SOW, HPNA will invoice Customer monthly for all fees and expenses.

(d) If any SOW Amount is not paid within 15 days of the receipt of the applicable invoice, then, in addition to all other remedies that may be available to HPNA:

(1) HPNA may charge interest on the past due amount at the rate of 5% per month (or the highest amount allowed by law if lower) calculated daily and compounded monthly; and

(2) Customer shall reimburse HPNA for all costs incurred by HPNA in collecting any late payment of amounts due or related interest, including reasonable attorneys’ fees, court costs and collection agency fees.

(e) All amounts payable to HPNA under this Agreement shall be paid in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

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7.2. Rebates

This Section 7.2 shall to rebates or discounts (“Rebates”) as specified in the applicable SOW (if any) to which Customer is entitled.

(a) Subject to Customer remaining in full compliance with the Agreement, including paying all fees as and when they fall due, Hapana will pay to Customer (or to any Location as nominated by Customer) the applicable rebates set forth in the Statement of Work (“Rebates”).

(b) All Rebates are calculated monthly and paid in arrears.

(c) Once paid, a Rebate may not be recalled or reissued to another person without the prior written agreement of Hapana.

(d) Customer must not disclose the Rebate to any person except as otherwise required by law.

(e) Without limiting any other right of Hapana under the Agreement, Hapana is entitled to offset any amounts that Customer or a Location owes to Hapana against any Rebates owed to Customer or a Location under the Agreement.  

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7.3. Increases

Except as otherwise expressly set forth in an SOW, HPNA may increase the Subscription Fees and Service Fees by providing Customer with written notice, sent no later than sixty (60) days prior to such increases in Subscription Fees or Service Fees to be applied to Customer, and any renewal.

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7.4. Reports and Audits

(a) Upon HPNA’s reasonable request, Customer shall furnish to HPNA complete and accurate records and reports, in a form reasonably satisfactory to HPNA, relating to the use of the Online Subscription Based Service and Digital Component by Authorized Affiliates and End Users and any other information HPNA reasonably requires from time to time.

(b) HPNA or its nominated representative has the right at all reasonable times and on reasonable notice to visit Customer and to audit and inspect all records, procedures and systems of Customer which relate to the use of the Online Subscription Based Service, Digital Component and HPNA IP, and to request the right to visit any Location and audit and inspect all records, procedures and systems of any Customer Affiliate which relate to the use of the Online Subscription Based Service, Digital Component and HPNA IP. Customer shall cooperate with HPNA in relation to any such audit or inspection.

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7.5. Third Party Providers

(a) Customer acknowledges that:

(1) certain third parties (such as financial service providers) may from time to time be engaged by HPNA and/or Customer in connection with the Online Subscription Based Service and Digital Component and/or the accounts receivable services provided by HPNA, that in certain circumstances HPNA may receive consideration from such third parties in connection with the Online Subscription Based Service, and that the Online Subscription Based Service, Digital Component and/or Deliverables may include certain third party software or intellectual property licensed to HPNA.

(2) Customer and Customer Affiliates are solely responsible for engaging their own chosen third-party provider in connection with the facilitation of credit card, debit card and other related financial transactions which Customer and the Authorized Affiliates will cause to be accessed through the Online Subscription Based Service.

(3) Customer is liable and responsible to pay any fees or charges rendered by third party providers, including credit and debits card transaction fees and charges.

(4) HPNA shall make commercially reasonable efforts to coordinate and cooperate with Customer’s third-party providers.

(5) Customer shall be responsible for all action and/or inaction of its third-party providers.

(b) Notwithstanding the foregoing, HPNA shall not be liable for any delays or actions, inactions, intentional, negligent or any other acts of Customer and Customer Affiliates’ third-party providers, or any third party providers of hosting or similar services.

(c) Certain Intellectual Property rights owned by a third party may be incorporated into the Services. Customer hereby agrees to any terms and conditions (“Third Party Terms”), required by such third-party for the use of those Intellectual Property rights. Any rights granted hereunder to such third-party Intellectual Property are subject to those Third Party Terms. Any breach by Customer or any Customer Affiliate, Location, or End User of any Third Party Terms shall be deemed a breach of this Agreement. Customer will hold harmless and indemnify Hapana, its licensors and suppliers for any loss, claim or damages arising out of or related to any breach by Customer of any Third Party Terms. Customer acknowledges that such loss, claim or damage may arise as a result of a contractual relationship between Hapana and any third party, and that such loss, claim or damage shall not be deemed Consequential Loss for the purposes of this Agreement. In the event any third party Intellectual Property rights or components become unavailable, outdated or unsuitable in the opinion of Hapana in its sole and absolute discretion, Hapana may cease the provision of such third party Intellectual Property rights or components, or substitute such third party Intellectual Property rights or components with other third party Intellectual Property rights or components of similar functionality without notice to Customer.

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7.6. Accounts Receivable Management Services

Customer agrees that, during the Term, HPNA shall have the optional opt in service with exclusive right to provide account receivable management services and to pursue and collect outstanding and past due accounts receivable from Customer members and End Users on behalf Customer. HPNA shall be permitted to engage debt collection or other similar service providers to perform or assist with all or a portion of such services, and in connection therewith Customer hereby designates HPNA and such subcontractors as its authorized agents for such purposes. HPNA shall use its commercially reasonable efforts to seek to collect such past due amounts; provided that HPNA does not make any representation, warranty or guarantee as to the amount or timing of any such collections. Customer acknowledges that such services may include HPNA and/or its subcontractors sending emails, texts, and placing calls or auto-calls to Customer members or End Users whose payments have been declined during the billing process or have a past due balance. This service shall include all past due balances related to monthly dues, annual dues, personal training fees and any other billings or outstanding receivables owed by any member or End User to Customer or any Customer Affiliate. The application of additional late fees to members or End Users shall be at Customer’s discretion (in which event Customer shall notify HPNA in writing of any such late fees). In consideration of such services, HPNA shall be entitled to the applicable HPNA Collection Share (as defined below) of all past due amounts that are paid by any Customer members or End Users from time to time during the Term, including the HPNA Collection Share of any applicable late fees. Such HPNA Collection Share may be retained by HPNA to the extent any such payments are processed by or through HPNA or its subcontractors. If any such past due payments are made directly to Customer or a Customer Affiliate, then Customer shall promptly remit the applicable HPNA Collection Share to HPNA. For purposes hereof, the “HPNA Collection Share” shall mean (i) with respect to any past due payment that has been processed successfully between 0 and 90 days following the applicable original due date, twenty percent (20%), and (ii) with respect to any past due payment that has been processed successfully 90 days or more following the applicable original due date, forty percent (40%). In connection with such services, with respect to any amounts between 0 and 90 days past due, HPNA shall endeavor to act as a customer service representative and agent of Customer in relation to such payments and, to the extent HPNA is able to contact the applicable Customer member or End User, HPNA will endeavor to direct the applicable member or End User to the applicable gym(s) or studio(s) to which such person’s past due payment relates. During such initial 90 day period, HPNA will not refer collection of such past due amounts to a third party debt collection or similar agency without Customer’s consent (not to be unreasonably withheld). HPNA will keep reasonable records of its accounts receivable management and collection services pursuant to this Section 7.6, and will make sure records available to Customer promptly upon Customer’s reasonable written request. Customer will cooperate and will cause Customer Affiliates to cooperate with HPNA’s reasonable efforts to facilitate and coordinate such accounts receivable management and collection efforts.

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8. Taxes

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Any amounts paid hereunder in exchange for the products or services provided by HPNA are exclusive of any federal, state, or local sales, use, excise, value-added, or other similar taxes, fees, duties, or governmental charges (“Transaction Taxes”) imposed upon or made payable and arising out of sales under this Agreement, but excluding any taxes levied or imposed on HPNA’s income. Customer shall pay such Transaction Taxes, whether imposed upon Customer or HPNA or any other entity, except to the extent Customer provides to HPNA a valid tax-exemption certificate; provided, however, that Customer shall not be obligated to pay or reimburse HPNA any interest or penalties levied as a result of any failure by HPNA to pay such Transaction Taxes in a timely manner or any failure by HPNA to notify Customer in a timely manner. In the event any such taxes are imposed upon and paid by HPNA, Customer shall reimburse HPNA within 45 days of receipt of an invoice from HPNA. In addition, in the event Customer has a “direct pay” arrangement with any jurisdiction which imposes a Transaction Tax, Customer will provide HPNA with evidence of such arrangement and HPNA will not collect any Transaction Tax with respect thereto.  

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9. Warranties

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(a) Limited Warranty. Subject to the limitations and conditions set forth below, HPNA warrants to Customer that during the Term:

(1) the Online Subscription Based Service, Online Delivery Platform and Digital Component will conform in all material respects to the specifications set forth in the information contained within the relevant SOW and associated information, when installed, operated and used as recommended in such information and documentation, and in accordance with the SOWs and this Agreement; and

(2) HPNA will perform all Services in a professional and workmanlike manner in accordance with generally recognized industry standards and practices for similar Services, using personnel with the requisite skill, experience, and qualifications, and shall devote adequate resources to meet its obligations under this Agreement.

Notwithstanding the foregoing or anything herein to the contrary, it shall not be a breach of this Agreement in the event that the Online Subscription Based Service does not function in conformity with the warranties contained herein, provided that HPNA complies with its obligations as set forth in the applicable Service Level Agreement (if any) attached to the applicable SOW pursuant to the Online Subscription Based Service, Online Delivery Platform and Digital Component HPNA has provided Customer with the use of under the terms of this Agreement.

(b) Customer represents, warrants and covenants that it: (i) will be responsible for providing instructions, training, guidelines and requirements for use by all End Users of the Online Subscription Based Service, Online Delivery Platform and Digital Component provided under any SOW; (ii) will be responsible for the action of all Customer Affiliates and for ensuring that all instructions, guidelines and requirements are adhered to by all Customer Affiliates; and (iii) will obtain the assurances necessary for the use of all content and other materials, designs and elements provided by or on behalf of Customer and its Locations and/or each of their respective End Users in connection with the use by any and all Customer Affiliates and End Users of the Online Subscription Based Services, Online Delivery Platform, Digital Component or Services provided under a relevant SOW.

(c) Except to the extent set forth in an applicable SOW, HPNA makes no representations or warranties with respect to any End User data, or as to any compliance by HPNA with the Health Insurance Portability and Accountability Act of 1996, as amended, or any other Laws in relation to the creation, collection, storage, use, modification and/or transfer of any personal health information, records or data (collectively, “HIPAA Laws”), or with respect to PCI matters, except that HPNA is PCI level 4 compliant as of the date of these Terms and will use commercially reasonable efforts to maintain that or an equivalent or better level of PCI compliance. If the parties determine that HPNA, by virtue of providing the Services, is subject to HIPAA, Customer may request that HPNA create, collect, store, use, modify or transfer any protected health information or other personally identifiable information subject to HIPAA Laws and HPNA agrees to such request, the additional work and Services in relation to such request will be set forth in a separate SOW that will include a mutually agreed fee amount and schedule for such work and Services, it being understood and agreed that Customer will be solely responsible for any and all costs and expenses that HPNA may incur to comply with HIPAA Laws related to the Services.

(d) OTHER THAN AS EXPRESSLY SET OUT IN SECTION (a) OF THIS AGREEMENT, HPNA MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO THE ONLINE SUBSCRIPTION BASED SERVICE, ONLINE DELIVERY PLATFORM, DIGITAL COMPONENT OR HPNA IP, HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED.

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10. Limitations on Liability

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(a) EXCEPT FOR LIABILITY ARISING UNDER THE CONFIDENTIALITY AND INDEMNIFICATION PROVISIONS OF THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL LOSS OR ANY OTHER EXEMPLARY, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) Except for liability arising under the indemnification provisions of this Agreement, HPNA’s total maximum liability to Customer whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for all damages, liabilities, costs, expenses and losses of any kind (inclusive of legal costs) sustained, suffered or incurred by Customer and all Customer Affiliates arising under or in connection with this Agreement is limited to an amount equal to the fees received by HPNA from Customer in the 6 months immediately prior to the most recent claim.

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11. Confidential Information

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(a) Each party agrees not to use any Confidential Information of the other party except to the extent reasonably required for such party to perform its obligations or exercise its rights hereunder. Each party agrees not to disclose any Confidential Information of the other party to any third person or entity other than to employees of such receiving party who, prior to such disclosure, agree to be and are bound by confidentiality, nondisclosure and non-use obligations substantially similar to those contained in this Agreement. Each party agrees that it shall take at least the same degree of care to protect the secrecy of and avoid disclosure or improper use of the Confidential Information of the other party as it takes to protect the secrecy of and avoid disclosure or improper use of its own Confidential Information of a similar nature, and which in no event shall be less than a reasonable degree of care. A receiving party shall promptly notify a disclosing party of any misuse or misappropriation of any of the disclosing party’s Confidential Information which may come to the attention of the receiving party.

(b) Notwithstanding the termination of this Agreement, the confidentiality, nondisclosure and non-use obligations hereunder with respect to each item of Confidential Information shall terminate five years from the date of receipt thereof by a receiving party; provided, however, that any Confidential Information that constitutes a trade secret shall be entitled to all of the protections and benefits under any applicable trade secrets protection act(s) and any other applicable Law and such information shall remain subject to the confidentiality, nondisclosure and non-use obligations hereunder with respect to Confidential Information until the later of (a) five years from the date of receipt thereof by a receiving party or (b) the date upon which such information is no longer deemed to be a trade secret by a court of competent jurisdiction.

(c) Within five days of a party’s written request following the termination of this Agreement, any Confidential Information of a party held or possessed by the other party shall be promptly delivered to the party to which such Confidential Information belongs or, if such delivery is not possible without commercially unreasonable expense or effort, such Confidential Information shall be destroyed or otherwise disposed of in a manner that adequately protects the confidentiality of such Confidential Information. Notwithstanding the foregoing, the party returning and/or destroying such Confidential Information shall be entitled to retain one (1) archival copy of any materials or documents included in such Confidential Information solely for the purposes of monitoring such party’s continuing obligations of confidentiality under this Agreement. Concurrently with its return and/or destruction of such Confidential Information, such party shall furnish to the other party a certification, signed by an authorized officer of such party, attesting to the return and/or destruction of all Confidential Information in accordance with the terms of this Section 11‎‎.

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12. Restrictions

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During the Term of this Agreement, neither party shall, either directly or indirectly, solicit, induce, or attempt to solicit or induce any individual who is engaged as an employee, agent or independent contractor of the other party, to terminate his or her employment with such party and/or to become an employee, agent or independent contractor of the soliciting party or such other person or entity. For the purposes of this clause, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement, and the hiring of any such employee who freely responds shall not be a breach of this clause.

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13. Termination/Suspension

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13.1. Termination

This Agreement and/or any Statement of Work entered hereunder may be terminated during the Term and any renewals, as follows:

(a) by HPNA, effective on written notice to Customer, if (i) Customer fails to pay any amount when due under this Agreement, where such failure continues more than 30 (thirty) days after HPNA’s delivery of written notice of past due payment; or (ii) there are any undisputed amounts outstanding thirty (30) days beyond their due date under three (3) or more HPNA invoices at any given time;

(b) by either party, effective on written notice to the other party, if the other party materially breaches this Agreement and such breach remains uncured 90 days after the non-breaching party provides the breaching party with written notice of such breach; or

(c) by either party, effective immediately, if the other party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

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13.2. Effects of Termination

(a) Upon the termination of this Agreement for whatever reason after any applicable notice and cure periods, all SOWs shall immediately terminate as well, and subject to the foregoing, Customer must immediately, at its own cost:

(1) cease to use the Online Subscription Based Service, Online Delivery Platform, Digital Component and HPNA IP; and

(2) at the option of HPNA, either deliver to HPNA or destroy and permanently delete: (i) all advertising, literature and/or other material that contain or refer to HPNA IP or the IP of any entity that is related to HPNA; and (ii) any other item, including documents, which relate to HPNA IP or any Intellectual Property that relates to the Services and are in the possession, custody or control of Customer.

(b) A termination of any SOW shall only terminate this Agreement and/or any other SOW if the notice of termination of such SOW explicitly sets forth that the Agreement and/or other identified SOWs shall also be terminated.

(c) HPNA may provide transition services to Customer following the termination of a Statement of Work (not to exceed thirty (30) days thereafter), subject to the parties agreement to an appropriate payment for such transition services.

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13.3. Suspension

(a) Hapana may suspend Customer, any Location’s, or any End User’s right to access or use any portion or all of the Services immediately if Hapana determines:

(1) that Customer, the relevant Location, or the relevant End User has breached any of the provisions of this Agreement or otherwise failed to perform any of its obligations, including any payment obligations;

(2) the use of or access to the Services (i) is fraudulent or may cause Hapana to be subject to liability; or (ii) breaches any applicable law; or

(3) to address or mitigate to a security incident or suspected security incident.

(b) Customer acknowledges and agrees that Hapana will not be responsible for, or have any liability to Customer, any Location, or any End User for any suspension of the Services pursuant to this Section.

(c) Hapana’s right to suspend access or use the Services is in addition its right to terminate this Agreement.

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14. Relationship between the parties

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Customer is operating any business of Customer separate and independent from any business of HPNA. Customer is not an agent of HPNA. Nothing contained in this Agreement shall be construed to constitute HPNA (or any entity that is related to HPNA) and Customer as partners, joint ventures or in a relationship of employer and employee, or in a relationship of franchisor or franchisee.

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15. Customer Data

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15.1.

Customer acknowledges and agrees that:

(a) it is responsible for taking its own steps to maintain appropriate security, protection and backup of the Customer Data, and to protect the Customer Data from unauthorized access and routine archiving of the Customer Data;

(b) it is solely responsible for the development, content, operation, maintenance, and use of the Customer Data, including compliance with legal and contractual requirements, obtaining necessary licenses, permissions and consents, and properly handling and processing the Customer Data and related notices; and

(c) any Account Information generated by the Services (or otherwise provided by Hapana) are for the Customer’s personal and internal use only and Customer must not (and must ensure that Locations and End Users do not) sell, transfer or sublicense them to any other entity or person.

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15.2. Customer grants to Hapana a non-exclusive, sub-licensable, royalty free license to use, copy, modify, display and distribute the Customer Data to (i) provide the Services to Customer, Locations, and any End Users in accordance with this Agreement; and (ii) improve Hapana’s offering and potentially offer new services.

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15.3.

Customer represents and warrants that:

(a) it owns all right, title and interest in and to the Customer Data, or has the necessary licenses, rights, consents and permissions to use such Customer Data (and grant the rights for Hapana to use the Customer Data set out in this Agreement), in relation to the Services;

(b) use of the Customer Data by Customer, a Location, or an End Use, and any use of the Customer Data by Hapana in connection with the Services, will not breach any applicable law; and

(c) the Customer Data, and any use thereof, will not infringe the Intellectual Property Rights or any other rights of any third party.

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16. Indemnification

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16.1. Indemnification by HPNA

(a) HPNA agrees to indemnify, defend, and hold harmless Customer and its officers, employees, directors, agents and representatives from any and all claims, damages, losses and liabilities (including reasonable outside attorneys’ fees and settlements) in connection with any claim, suit, action, or other proceeding made or threatened by an unaffiliated third party (“Claim(s)”) that arise from HPNA’s gross negligence or willful misconduct. Customer agrees to provide HPNA with prompt written notice of such claim and reasonable cooperation, information, and assistance in connection with such claim and HPNA shall have sole control and authority with respect to the defense, settlement, or compromise of such claim.

(b) HPNA shall not indemnify Customer, and shall not otherwise be liable under this Agreement, for (1) any use by Customer, its affiliates, and Location or End Users of the Online Subscription Based Service or any HPNA IP other than for the uses expressly permitted in this Agreement or through a relevant SOW, and associated Documentation; (2) any images, video, audio or other content provided by any person other than HPNA (including by or on behalf of any End User); (3) any materials, Services, data or information provided by Customer, its affiliates, or any Location; or (4) any Claim for which Customer owes HPNA an indemnity. In the event HPNA receives any Claim related to an alleged infringement of rights by content provided by or relating to any person other than HPNA, HPNA shall have the right to immediately disable access to the Online Subscription Based Service, Online Delivery Platform and Digital Component until such time as the Claim has been resolved to HPNA’s satisfaction.

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16.2. Indemnification by Customer

Customer agrees, at its own expense, to indemnify, defend and hold harmless HPNA and its officers, employees, directors, agents and representatives from any and all Claim(s) that arise from (i) Customer’s, any Customer Affiliate’s, any Location’s, and/or any End User’s breach or alleged breach of any representation, warranty, covenant or violation of any obligation in this Agreement; (ii) Customer’s, any Customer Affiliate’s, and/or any Location’s gross negligence or willful misconduct; (iii) Customer’s, any Customer Affiliate’s, and/or any Location’s violation of any third party rights, including, without limitation, any Intellectual Property or privacy right; (iv) the Customer Data or (ivCustomer’s, a Location’s, an End User’s, or HPNA’s use thereof; or (v) any content posted, uploaded, submitted, played, or otherwise distributed or transmitted by or for Customer, any Customer Affiliate, any Location, and/or any End User. HPNA agrees to provide Customer with prompt written notice of such claim and reasonable cooperation, information, and assistance in connection with such claim and Customer shall have sole control and authority with respect to the defense, settlement, or compromise of such claim.

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16.3. Indemnification Procedures

At the request of the indemnified party, the indemnitor will promptly, at its own expense, defend with counsel reasonably acceptable to the indemnified party, any Claim for which an indemnification is owed and has the right to control the defense of such Claim, provided that the indemnified party, at its own expense, may engage separate counsel to participate in the defense of any such Claim and the indemnitor agrees cooperate fully with such counsel. The parties agree that the indemnitor will keep the indemnified party and its counsel informed regarding the status of any such Claim and cooperate fully with requests for information. Notwithstanding any other provisions of this Agreement, the indemnitor may not settle any such Claim without the indemnified party’s consent if the proposed settlement would be in the indemnified party’s name or impose pecuniary or other liability or an admission of fault or guilt on the indemnified party or would require the indemnified party to be bound by an injunction of any kind; provided however, that any such consent to settlement will not be unreasonably conditioned, withheld, or delayed.

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16.4. Remediation of Infringement

In the event that some or all of the Online Subscription Based Service, Online Delivery Platform and Digital Component provided pursuant to a Statement of Work becomes, or is likely to become, the subject of a claim of infringement of any patent, copyright, trademark, trade secret or other right of any third party, or if HPNA’s or Customer’s use thereof or any part thereof is enjoined in any manner, then, HPNA will notify Customer and shall, at its sole expense, have the right to (i) procure for Customer and/or the End Users, as applicable, the right to continue using the allegedly infringing Online Subscription Based Service, Online Delivery Platform and Digital Component free of any liability for infringement or violation, or (ii) replace or modify the allegedly infringing matter with a non-infringing product of substantially equivalent or better functionality or make it non-infringing without affecting the functionality of such product; and (iii) in the event neither (i) nor (ii) are commercially reasonable, then terminate this Agreement upon written notice.

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16.5.

Notwithstanding anything to the contrary set forth in this Agreement, HPNA shall have the right to control all claims alleging, in whole or part any infringement or alleged infringement relating to the Online Subscription Based Service, Online Delivery Platform or Digital Component or to other HPNA IP, regardless of whether or not Customer is obligated to indemnify HPNA with respect to any such Claim (however, in the event such action involves a claim for which Customer owes HPNA an indemnity, then (i) HPNA shall regularly invoice Customer for its costs in connection with such claim and Customer shall promptly reimburse HPNA for all such costs and (ii) HPNA shall use commercially reasonable efforts to keep Customer apprised of activity with respect to such action).  

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17. Dispute Resolution

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17.1. Step Negotiation

In the event of a dispute regarding this Agreement, the parties will attempt to resolve the dispute amicably and promptly by appointing a senior executive of each party to attempt to mutually agree upon a resolution. Either party may give the other party written notice of any dispute or claim. Within ten (10) days after delivery of said notice, the executives will meet at a mutually acceptable time and place (if meeting personally, within the city, county and State of New York) and shall meet thereafter as often as they reasonably deem necessary to exchange information and attempt to resolve the dispute or claim within thirty (30) days. If the two senior executives of Customer and HPNA cannot reach a resolution, the dispute may be set for arbitration as described herein.  

All dispute resolution meetings shall be held in the borough of Manhattan, New York, New York, United States of America unless otherwise agreed between the parties; provided that the parties may also meet via video conference or similar technology.

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17.2. Arbitration

(a) In the event of a dispute arising out of or relating to this Agreement, including any modification or breach thereof, that cannot be resolved between them, the parties agree to submit the dispute to binding arbitration, pursuant to the terms of the American Arbitration Association’s (“AAA’s”) Commercial Arbitration Rules. The party wishing to have any dispute submitted to arbitration will give notice to the other party specifying the particulars of any issue in dispute. Upon a party’s request for arbitration, an arbitrator shall be selected by mutual agreement of the parties to hear the dispute in accordance with such Rules. If the parties are unable to agree upon an arbitrator, then either party may request that the AAA select an arbitrator and such arbitrator shall hear the dispute in accordance with such Rules. If the amount in controversy exceeds $100,000, then the arbitration shall be heard and determined by a panel of three (3) arbitrators selected in accordance with said Commercial Arbitration Rules. No such arbitrator will have previously been employed by either party and will not have a direct or indirect interest in either party or the subject matter of the arbitration. The cost of the arbitration (excluding a party’s legal fees and disbursements) will, unless otherwise ordered by the arbitrator or the panel, be borne equally by the parties. The decision of the arbitrator will be final and binding and the parties hereby waive their respective rights to further appeal or redress in any court or tribunal except solely for the purpose of obtaining execution of the judgment rendered by the arbitration proceeding in any court having jurisdiction to enforce the award or any judgment enforcing the award.

(b) Notwithstanding anything to the contrary, for any dispute not required to be resolved under the arbitration provisions of this Agreement, each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the federal and state courts located in the city, county and State of New York. The bringing of such proceedings in one or more jurisdictions will not preclude the bringing of enforcement proceedings in any other jurisdiction. In connection with any such proceeding, each party waives any right to de novo review of the award against that party. Each party expressly agrees that the final award decision shall also provide for an allocation and division between the parties, on a basis which is just and equitable under the circumstances (as determined by the arbitrators), of all costs of arbitration, including arbitrators’ and reasonable attorneys’, accountants’, and expert witness fees, costs, and expenses incurred in connection with the proceeding.

(c) All matters relating to any arbitration held pursuant to this Agreement, including the existence of the dispute and its referral to arbitration, shall be held in confidence by both parties and disclosed only with the consent of both parties or if required by Law. Notices. Unless a later time is specified in it a notice, approval, consent or other communication takes effect from the time it is received. A notice, approval, consent or other communication in connection with this Agreement: (i) must be in writing unless expressly specified otherwise; and (ii) must be sent by certified mail or overnight courier to the address of the addressee which is specified on page 1 of this Agreement in the case of the parties to this Agreement.

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17.3.

Each party understands and agrees that, notwithstanding any other provision of this Agreement, breach of the confidentiality obligations under this Agreement or, in the case of Customer, HPNA’s or its licensors’ Intellectual Property, may cause the other party irreparable damage for which recovery of money damages would be inadequate, and that each party shall therefore be entitled to obtain timely injunctive relief to protect such party’s rights under this Agreement in addition to any and all remedies available at law.

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18. General

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(a) The provisions, rights, and obligations under this Agreement that, by their nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement including, without limitation: Sections 4 (Intellectual Property Rights), 10 (Limitations of Liability), 11 (Confidentiality), 15 (Indemnification), 16 (Dispute Resolution), and 17 (General).

(b) Governing Law. This Agreement will be governed by, construed under and interpreted and enforced in accordance with the Laws of the State of New York without regards to its conflict of Law principles.

(c) Customer shall not itself, or permit any other person to, export, re-export or release, directly or indirectly any controlled technology to any country, jurisdiction or person to which the export, re-export or release of controlled technology (a) is prohibited by applicable Law or (b) without first completing all required undertakings (including obtaining any necessary export license or other governmental approval).

(d) On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

(e) A single or partial waiver of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy. Failure by a party to exercise or delay in exercising a right, power or remedy does not prevent its exercise.

(f) A provision of or a right created under this Agreement may not be waived or varied except in writing signed by the party or parties to be bound.

(g) This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and cancels and supersedes, as of the Commencement Date, any previous understanding, commitments, or agreement, oral or written, between the parties, unless otherwise noted in this Agreement.

(h) Neither Party is responsible for any failure to perform its obligations under this Agreement if it is prevented or delayed in performing those obligations by an event, occurrence or circumstance that is not within the control of a Party (“Force Majeure”). For the avoidance of doubt, an event of Force Majeure does not relieve a Party from liability for an obligation which arose before the occurrence of that event, nor does that event affect the obligation to pay money in a timely manner which was due and payable prior to the occurrence of that event.

(i) This Agreement may not be amended except in writing executed by duly authorized representatives of both HPNA and Customer, except that HPNA may update these Terms from time to time in its sole discretion.  without notice. You are responsible for checking for updates, and your use of the Services, Deliverables, and/or Digital Content constitutes your agreement to be bound by these updated Terms.

(j) This Agreement may not be assigned by Customer without HPNA’s prior written consent, except (i) in connection with a change in control, or (ii) to an affiliate in connection with a corporate restructuring, reorganization and/or consolidation; provided Customer shall remain responsible for any applicable assignee’s compliance with the terms of this Agreement. Subject to the foregoing, this Agreement shall be binding on the parties and their respective successors and permitted assigns, and such permitted assigns shall expressly agree to be bound by all the terms and conditions herein. No partial assignment of the rights or obligations granted hereunder shall be permitted.

(k) Any SOW or other executed document may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original but all the counterparts shall together constitute one and the same instrument. Delivery of an executed document by facsimile, email in portable document format (.pdf), or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document has the same effect as delivery of an executed original.

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