This Master Service Agreement (“Agreement”) is made between EarnieXP, LLC, a Michigan limited liability company (“Company”), and the individual or entity placing an order for or accessing any services (“Customer”). This Agreement is effective as of the later date of the signatures provided below (the “Effective Date”). This Agreement, together with any Order Forms entered into hereunder, constitutes the complete agreement between the parties with respect to the Services.
1. Definitions
Capitalized terms used in this Agreement have the meanings set forth below or where first defined herein.
“Agreement” means this Master Service Agreement together with all Order Forms entered into hereunder.
“Authorized User” means an employee, contractor, or other individual to whom Customer grants access to the Services under Customer’s account.
“Confidential Information” means any non-public information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally, in writing, or in any other form, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation, the Services, Company’s pricing, technology, source code, product roadmaps, and business plans, and Customer’s Customer Data, business information, and employee information.
“Customer Data” means all data, content, information, and materials submitted, uploaded, or transmitted by or on behalf of Customer or its Authorized Users to the Services, including employee performance data, sales metrics, and User Content.
“Order Form” means an ordering document signed or otherwise accepted by both parties that specifies the Services to be provided, applicable fees, subscription term, and other commercial terms.
“Personal Data” has the meaning given to such term (or any analogous term such as “personal information”) under applicable data protection laws.
“Services” means Company’s gamification and sales performance platform and related services, including features such as Battles, Challenges, Power Wheel, Coins-based incentive systems, leaderboards, and any related software, documentation, and updates provided by Company.
2. Services
2.1 Provision of Services
Subject to the terms of this Agreement and Customer’s payment of applicable fees, Company will provide Customer and its Authorized Users with access to the Services as specified in one or more Order Forms. All Order Forms incorporate and are subject to the terms of this Agreement. In the event of any conflict between this Agreement and an Order Form, this Agreement controls unless the Order Form expressly states that a specific provision of this Agreement is being modified.
2.2 Support Services
Company will provide Customer with reasonable technical support services in accordance with Company’s standard support practices, as updated from time to time. Support hours, response times, and channels are as published by Company or as otherwise communicated to Customer.
2.3 Modifications; Beta Features
Company may modify, update, or discontinue features of the Services from time to time at its sole discretion, provided that Company will not materially diminish the core functionality of the Services during a then-current paid subscription term. From time to time, Company may offer Customer access to features identified as “beta,” “preview,” “experimental,” or similar designations (“Beta Features”). Beta Features are provided “AS IS” without warranty of any kind and may be modified or discontinued at any time without notice. Notwithstanding any other provision of this Agreement, Company will have no liability arising out of or in connection with Beta Features.
3. Restrictions and Responsibilities
3.1 Use Restrictions
Customer agrees not to, and not to permit any Authorized User or third party to:
• Reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms of the Services;
• Modify, translate, adapt, or create derivative works based on the Services, except as expressly permitted by Company in writing;
• Use the Services for timesharing or service bureau purposes or for the benefit of any third party;
• Remove, obscure, or alter any proprietary notices or labels from the Services;
• Clone, replicate, or build a competitive product or service using the Services or any proprietary information derived from the Services;
• Interfere with or disrupt the integrity or performance of the Services or the servers or networks connected to the Services;
• Attempt to gain unauthorized access to the Services or any related systems or networks;
• Bypass or circumvent any access controls, usage limits, or technical measures Company uses to restrict access to the Services;
• Use the Services to send unsolicited communications or spam, or to transmit any malicious code, viruses, or harmful content; or
• Use any automated tools, scripts, or robots to access, scrape, or extract data from the Services other than through Company’s authorized APIs.
3.2 User Content
The Services may include features allowing Authorized Users to post, transmit, or share messages, images, performance data, and other materials (“User Content”). Company is not obligated to review User Content and assumes no responsibility for it. Company may remove, suspend, or modify User Content at its sole discretion. By submitting User Content, Customer grants Company a non-exclusive, royalty-free, worldwide license to use, reproduce, modify, display, and distribute such User Content solely for the purpose of operating, maintaining, supporting, and improving the Services. Customer is solely responsible for the legality, accuracy, appropriateness, and lawfulness of all User Content submitted through Customer’s account.
3.3 Customer Representations and Warranties
Customer represents, warrants, and covenants that:
(a) Customer has full power and authority to enter into and perform this Agreement, and the execution of this Agreement does not violate any other agreement to which Customer is bound;
(b) Customer has all rights, consents, and authorizations necessary to submit Customer Data to the Services, including any required consents from or notices to Authorized Users and other individuals whose Personal Data is included in Customer Data;
(c) Customer has provided to its Authorized Users any notices and obtained any consents required under applicable employment, labor, privacy, and electronic monitoring laws in connection with the use of the Services and the collection, display, or use of employee performance data through the Services;
(d) Customer’s use of the Services, including any Coin allocations, distributions, rewards, Battles, Challenges, and incentive programs administered through the Services, complies with all applicable laws and regulations, including without limitation laws relating to wages and hours, employee compensation, taxation of employee benefits and non-cash awards, anti-discrimination, workplace harassment, sweepstakes, contests, gambling, lotteries, and unfair competition;
(e) Customer has implemented and will maintain reasonable internal policies and controls (including, where appropriate, anti-harassment policies and training) governing the conduct of Authorized Users in their use of the Services;
(f) Customer Data does not and will not contain any information that Customer is not legally permitted to share with Company, including without limitation protected health information (as defined under HIPAA), payment card data subject to PCI-DSS, government-issued identification numbers, biometric identifiers, or any other category of sensitive data not expressly authorized by Company in writing; and
(g) Customer will not use the Services in any manner that infringes, misappropriates, or violates the intellectual property, privacy, publicity, or other rights of any third party.
3.4 Compliance with Laws
Customer will use the Services in compliance with Company’s standard published policies, the terms of this Agreement, and all applicable federal, state, local, and foreign laws and regulations.
3.5 Authorized Users
Customer is responsible for the acts and omissions of all Authorized Users as if they were Customer’s own acts and omissions. Customer will maintain the security and confidentiality of all account credentials and will promptly notify Company of any unauthorized access or use of Customer’s account. Any breach of this Agreement by an Authorized User will be deemed a breach by Customer.
3.6 Equipment
Customer is responsible for obtaining and maintaining all equipment, hardware, servers, software, operating systems, networking, internet connectivity, and ancillary services necessary to access and use the Services. Company is not responsible for any failure of the Services arising from or relating to Customer’s failure to maintain adequate equipment or connectivity.
4. Fees and Payment
4.1 Fees
Customer will pay Company the fees set forth in the applicable Order Form. Except as expressly provided herein, all fees are non-refundable and non-cancellable.
4.2 Invoicing and Payment
Unless otherwise specified in an Order Form, Company will invoice Customer in advance for each subscription term, and Customer will pay all undisputed amounts within thirty (30) days of the invoice date. All payments will be made in U.S. dollars by ACH, wire transfer, or credit card, as specified by Company.
4.3 Late Payment
Any amount not paid when due will bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, calculated from the date payment was due until paid in full. Customer will reimburse Company for all reasonable costs of collection, including reasonable attorneys’ fees.
4.4 Taxes
All fees are exclusive of taxes, levies, duties, and similar governmental assessments of any kind, including without limitation sales, use, value-added, withholding, and excise taxes (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding only taxes based on Company’s net income, property, or employees. If Company is required to collect or pay any Taxes for which Customer is responsible, such Taxes will be invoiced to and paid by Customer.
4.5 Disputed Invoices
Customer must notify Company in writing of any good-faith dispute of an invoiced amount within fifteen (15) days of the invoice date, providing reasonable detail of the basis for the dispute. The parties will work in good faith to resolve any such dispute promptly. Customer will continue to pay all undisputed amounts pending resolution.
4.6 Suspension for Non-Payment
If Customer fails to pay any undisputed amount when due and such failure continues for ten (10) days following written notice from Company, Company may suspend Customer’s and its Authorized Users’ access to the Services until all overdue amounts are paid in full, without limiting any other remedies available to Company.
5. Confidentiality
5.1 Obligations
The Receiving Party will: (a) use the Disclosing Party’s Confidential Information only as necessary to exercise its rights or perform its obligations under this Agreement; (b) protect the Disclosing Party’s Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar importance, but in no event less than a reasonable standard of care; and (c) not disclose the Disclosing Party’s Confidential Information to any third party except to its employees, contractors, advisors, agents, affiliates, and authorized representatives who have a legitimate need to know and who are bound by confidentiality obligations no less protective than those set forth herein.
5.2 Exceptions
The obligations in Section 5.1 do not apply to information that the Receiving Party can demonstrate: (a) was lawfully in its possession without confidentiality obligations prior to receipt from the Disclosing Party; (b) is or becomes generally known to the public other than through breach of this Agreement; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (d) is rightfully received from a third party without confidentiality obligations.
5.3 Compelled Disclosure
The Receiving Party may disclose Confidential Information to the extent required by law or valid legal process, provided that (where legally permitted) the Receiving Party gives the Disclosing Party reasonable prior written notice and cooperates with any efforts by the Disclosing Party to seek a protective order or other appropriate protection. The Receiving Party will disclose only that portion of Confidential Information that is legally required to be disclosed.
5.4 Return or Destruction
Upon termination or expiration of this Agreement, or upon the Disclosing Party’s earlier written request, the Receiving Party will, at the Disclosing Party’s election, return or destroy all Confidential Information of the Disclosing Party in its possession or control and certify such return or destruction in writing, provided that the Receiving Party may retain copies of Confidential Information (a) to the extent required by law, (b) maintained in automated backup systems in the ordinary course, or (c) reasonably necessary to evidence performance under this Agreement, all subject to continuing confidentiality obligations.
5.5 Duration
The obligations in this Section 5 will survive for five (5) years after termination or expiration of this Agreement, except that obligations with respect to trade secrets will continue for as long as such information constitutes a trade secret under applicable law.
6. Data Processing and Security
6.1 Customer Data Ownership
As between the parties, Customer owns all right, title, and interest in and to Customer Data. Customer grants Company a non-exclusive, worldwide, royalty-free license to access, use, process, host, store, transmit, and display Customer Data solely as necessary to provide, maintain, support, and improve the Services and to perform Company’s obligations under this Agreement.
6.2 Privacy Compliance
To the extent Company processes Personal Data on behalf of Customer in connection with the Services, Company will comply with its published privacy policy, applicable data protection laws (including, as applicable, the General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act (“CCPA”)), and any data processing addendum executed by the parties. With respect to such Personal Data, Company acts as a “data processor” (under GDPR) or “service provider” (under CCPA), and Customer acts as the “data controller” or “business,” respectively. Company will not sell or share Personal Data (as those terms are defined under applicable law) and will process Personal Data only on Customer’s documented instructions, as expressed through Customer’s use of the Services and the terms of this Agreement.
6.3 Security Measures
Company will implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Data and Personal Data against unauthorized access, use, disclosure, alteration, loss, or destruction. Such safeguards will be appropriate to the nature of the data processed and consistent with generally accepted industry practices.
6.4 Breach Notification
Company will notify Customer without undue delay, and in any event within seventy-two (72) hours, after becoming aware of any confirmed unauthorized access to or acquisition of Customer Data that constitutes a personal data breach under applicable law (a “Security Incident”). Such notification will include the information reasonably available to Company regarding the nature and scope of the Security Incident. Company’s notification of or response to a Security Incident is not an acknowledgement of fault or liability.
6.5 Subprocessors
Customer authorizes Company to engage third-party service providers (“Subprocessors”) to assist in providing the Services, including without limitation cloud hosting, analytics, customer support, and rewards fulfillment providers. Company will impose data protection obligations on its Subprocessors that are substantially similar to those set forth in this Agreement and remains responsible for the performance of its Subprocessors with respect to Customer Data. A list of current Subprocessors is available upon written request.
6.6 Aggregated and Anonymized Data
Notwithstanding anything to the contrary, Company may collect, generate, and use data and information derived from Customer’s use of the Services in aggregated, anonymized, or de-identified form that does not identify Customer, any Authorized User, or any individual (“Aggregated Data”) for any lawful business purpose, including without limitation operating, improving, benchmarking, training, and developing the Services and related products. Company will own all Aggregated Data.
6.7 Data Return and Deletion
Upon termination or expiration of this Agreement, Customer may request, in writing within thirty (30) days of such termination or expiration, that Company provide Customer Data in a commercially reasonable format. Following such thirty (30)-day period (or earlier upon Customer’s written request), Company will delete or anonymize Customer Data in the ordinary course of business, except as required to be retained by applicable law or as maintained in routine backup systems and deleted in accordance with Company’s data retention schedule.
7. Intellectual Property
7.1 Company Ownership
Company and its licensors own and retain all right, title, and interest in and to the Services, including all software, code, content, documentation, designs, trademarks, logos, and improvements thereto, and all intellectual property rights therein. No rights are granted to Customer hereunder except as expressly set forth in this Agreement. All rights not expressly granted are reserved.
7.2 License to Customer
Subject to Customer’s compliance with this Agreement and payment of all applicable fees, Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the subscription term to access and use the Services solely for Customer’s internal business purposes and in accordance with the applicable Order Form.
7.3 Feedback
Customer may, from time to time, provide Company with suggestions, comments, ideas, improvements, or other feedback relating to the Services (“Feedback”). Customer hereby grants Company a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, transferable license to use, modify, exploit, and incorporate Feedback into the Services or any other Company products or services, without any obligation or restriction.
8. Term and Termination
8.1 Term
This Agreement commences on the Effective Date and continues for the initial subscription term specified in the applicable Order Form. Unless otherwise stated in an Order Form, this Agreement will automatically renew for successive terms of equal duration unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
8.2 Termination for Cause
Either party may terminate this Agreement upon written notice if the other party materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice describing the breach in reasonable detail. Notwithstanding the foregoing, Company may terminate this Agreement immediately upon written notice if Customer (a) violates Section 3 (Restrictions and Responsibilities), Section 5 (Confidentiality), Section 12 (Coins and Virtual Currency), or Section 13 (Platform Conduct and Misuse); (b) fails to pay undisputed amounts when due and such failure continues beyond the notice period set forth in Section 4.6; or (c) engages in any conduct that, in Company’s reasonable judgment, poses a material risk to the Services, Company’s systems, other customers, or any individual.
8.3 Termination for Convenience by Company
Company may terminate this Agreement or any Order Form at any time, for any reason or no reason, upon thirty (30) days’ prior written notice to Customer. In the event of termination for convenience by Company under this Section 8.3, Company will refund to Customer a pro-rated portion of any prepaid fees corresponding to the unused portion of the then-current subscription term. Customer acknowledges that Company’s right to terminate for convenience is a material term of this Agreement.
8.4 Termination for Material Change
If Company materially modifies this Agreement pursuant to Section 15.11 and such modification has a material adverse effect on Customer, Customer may terminate this Agreement by providing written notice to Company prior to the effective date of such modification. In such event, Company will refund to Customer a pro-rated portion of any prepaid fees corresponding to the unused portion of the then-current subscription term.
8.5 Effect of Termination
Upon expiration or termination of this Agreement for any reason: (a) all rights and licenses granted to Customer hereunder will immediately terminate; (b) Customer and its Authorized Users will cease all use of the Services and delete or return any Company materials in their possession; (c) all outstanding payment obligations of Customer will become immediately due and payable; and (d) each party will comply with its obligations regarding Confidential Information and Customer Data as set forth herein.
8.6 Survival
Sections 1 (Definitions), 3.2 (User Content), 3.3 (Customer Representations), 4 (Fees and Payment, with respect to amounts accrued prior to termination), 5 (Confidentiality), 6.1 (Customer Data Ownership), 6.6 (Aggregated Data), 6.7 (Data Return and Deletion), 7 (Intellectual Property), 8.5 (Effect of Termination), 8.6 (Survival), 9 (Warranties and Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12 (Coins and Virtual Currency), 13 (Platform Conduct and Misuse), 14 (Dispute Resolution), and 15 (Miscellaneous) will survive termination or expiration of this Agreement.
9. Warranties and Disclaimer
9.1 Mutual Warranties
Each party represents and warrants that (a) it is duly organized and validly existing under the laws of its jurisdiction of organization; (b) it has the full power and authority to enter into and perform this Agreement; and (c) its execution and performance of this Agreement does not and will not conflict with any other agreement to which it is bound.
9.2 Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ALL RELATED COMPONENTS, FEATURES, AND MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE FROM HARMFUL CODE; THAT DEFECTS WILL BE CORRECTED; THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; OR THAT THE SERVICES WILL BE COMPATIBLE WITH ANY PARTICULAR HARDWARE, SOFTWARE, OR THIRD-PARTY SYSTEMS. CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR ITS SELECTION OF THE SERVICES AND FOR ANY RESULTS OBTAINED FROM USE OF THE SERVICES.
10. Indemnification
10.1 Company’s Indemnity
Company will defend Customer from and against any third-party claim alleging that the Services, as provided by Company and used in accordance with this Agreement, infringe a valid United States patent, copyright, or trademark or misappropriate a trade secret of a third party (an “IP Claim”), and Company will indemnify Customer for damages and reasonable attorneys’ fees finally awarded against Customer (or agreed to in settlement) directly resulting from such IP Claim, subject to the limitations in Sections 10.2, 10.3, and 11.
10.2 Mitigation Options
If the Services become, or in Company’s reasonable opinion are likely to become, the subject of an IP Claim, Company may, at its option and expense: (a) procure for Customer the right to continue using the Services; (b) modify or replace the Services so that they become non-infringing while providing substantially equivalent functionality; or (c) if neither (a) nor (b) is commercially reasonable, terminate this Agreement or the applicable Order Form upon written notice to Customer and refund any prepaid fees corresponding to the unused portion of the then-current subscription term. The remedies set forth in this Section 10 are Customer’s sole and exclusive remedies, and Company’s sole and exclusive liability, for any IP Claim.
10.3 Exclusions
Company will have no obligation under Section 10.1 for any claim arising from or relating to: (a) use of the Services in combination with software, hardware, data, or services not provided by Company, where the alleged infringement would not have occurred but for such combination; (b) modifications to the Services made by anyone other than Company; (c) use of the Services other than in accordance with this Agreement or applicable documentation; (d) Customer Data or User Content; (e) Customer’s continued use of an allegedly infringing version of the Services after Company has made a non-infringing version available; (f) any open source software or third-party components incorporated into the Services; or (g) any obligation arising from compliance by Company with Customer’s specifications or instructions.
10.4 Customer’s Indemnity
Customer will defend, indemnify, and hold harmless Company and its officers, directors, employees, agents, and affiliates from and against any third-party claim, damages, losses, costs, and expenses (including reasonable attorneys’ fees) arising from or relating to: (a) Customer’s or any Authorized User’s use of the Services in violation of this Agreement or applicable law; (b) any Customer Data or User Content, including any claim that Customer Data or User Content infringes, misappropriates, or violates any third-party right; (c) any breach by Customer of its representations, warranties, or obligations under this Agreement; (d) any claim by an Authorized User or any individual whose data is included in Customer Data, including without limitation any employment-related, privacy, harassment, or compensation-related claim; (e) any claim that Customer’s Coin allocations, rewards, Battles, Challenges, or other incentive programs administered through the Services violate any applicable law, including wage and hour, taxation, gambling, sweepstakes, or anti-discrimination laws; or (f) any impersonation, harassment, data fabrication, or other prohibited conduct described in Section 13 attributable to Customer or any Authorized User.
10.5 Indemnification Procedures
The indemnification obligations in this Section 10 are conditioned on the indemnified party: (a) promptly notifying the indemnifying party in writing of the claim (provided that failure to provide prompt notice will not relieve the indemnifying party of its obligations except to the extent it is materially prejudiced thereby); (b) granting the indemnifying party sole control over the defense and settlement of the claim (provided that the indemnifying party will not settle any claim that requires admission of liability or the payment of any amount by the indemnified party without the indemnified party’s prior written consent); and (c) providing reasonable cooperation in the defense at the indemnifying party’s expense.
11. Limitation of Liability
11.1 Cap on Direct Damages
EXCEPT AS PROVIDED IN SECTION 11.2, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM (THE “GENERAL CAP”).
11.2 Limited Carve-Outs
The General Cap will not apply to (a) Customer’s payment obligations under Section 4; (b) Customer’s indemnification obligations under Section 10.4; (c) either party’s breach of Section 5 (Confidentiality); or (d) either party’s gross negligence or willful misconduct. Notwithstanding clauses (c) and (d) above with respect to Company, Company’s aggregate liability under such clauses will not exceed two (2) times the General Cap. For the avoidance of doubt, Company’s liability under Section 10.1 (IP Indemnity) is capped at two (2) times the General Cap, and the remedies in Section 10.2 are Customer’s sole and exclusive remedies for IP Claims.
11.3 Exclusion of Consequential Damages
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION WILL NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.
11.4 Allocation of Risk
The parties acknowledge that the limitations and exclusions of liability in this Section 11 are a fundamental basis of the bargain between them, that the fees reflect this allocation of risk, and that these limitations will apply notwithstanding the failure of essential purpose of any limited remedy.
12. Coins and Virtual Currency
12.1 Nature of Coins
The Services include a virtual currency feature (“Coins”) used solely within the platform for incentive, reward, and gamification features such as Battles, Challenges, and the Power Wheel. Coins are a feature of the licensed Services. Coins have no monetary value, are not redeemable for cash, do not constitute legal tender, do not constitute property of any kind outside the platform, and confer no rights of ownership or transferability outside the platform. Customer’s payment for Coin-related features represents a payment for a licensed feature of the Services and not a deposit of funds, security, financial instrument, or stored value. Company reserves the right to modify, adjust, suspend, or discontinue Coin-related features at any time upon reasonable notice to Customer.
12.2 No Refunds on Coin Purchases
All purchases of Coins are final and non-refundable. Once Coins are credited to a Customer’s account, no refunds, credits, chargebacks, or exchanges will be issued, including but not limited to in connection with account termination by Customer, failure to use purchased Coins, dissatisfaction with the Services, or changes to platform features. Customer acknowledges and accepts this no-refund policy prior to completing any Coin purchase. Notwithstanding the foregoing, in the event Company terminates this Agreement for convenience pursuant to Section 8.3, or Customer terminates pursuant to Section 8.4, any unused purchased Coins will be refunded on a pro-rata basis as part of the prepaid fee calculation.
12.3 Non-Transferability of Coins
Coins are non-transferable and may only be used by the account or individual Authorized User to whom they were issued or allocated. Customer and its Authorized Users may not sell, trade, gift, transfer, exchange, or assign Coins to any other user, account, or third party, whether within or outside the platform, except through functionality explicitly provided and authorized by Company within the Services. Any attempted transfer in violation of this Section is void, and Company reserves the right to revoke the applicable Coins and suspend or terminate the relevant account without liability.
12.4 Coin Integrity
Customer is responsible for ensuring that Coins are allocated, distributed, and used in accordance with the intended purpose of the platform and the terms of this Agreement. Any use of Coins that circumvents the integrity of the platform’s reward system, including bulk self-allocation, collusion between users, or artificial inflation of Coin balances, constitutes a material breach of this Agreement and may result in immediate account suspension, forfeiture of all Coins, and termination of this Agreement.
12.5 Customer Responsibility for Compliance
Customer acknowledges that Coins are an internal platform feature and that any monetary or non-monetary benefits ultimately distributed to Authorized Users by Customer in connection with Coins are determined and provided by Customer. Customer is solely responsible for ensuring that any such distributions comply with all applicable laws, including without limitation laws governing wages, hours, employee compensation, taxation, withholding, sweepstakes, contests, gambling, and lotteries. Company is not a party to any reward, contest, or compensation arrangement between Customer and its Authorized Users.
13. Platform Conduct and Misuse
13.1 Prohibited Conduct
Customer agrees that neither Customer nor any Authorized User will engage in any of the following while using the Services:
• Impersonation or misrepresentation: Creating accounts, company profiles, or user identities that falsely represent another company, organization, individual, or entity, or that are otherwise fraudulent, misleading, or deceptive;
• Harassment of employees or users: Using the Services to harass, intimidate, demean, bully, threaten, or otherwise harm any individual employee or user, including through public leaderboards, in-platform messaging, Challenges, Battles, or any other feature;
• Unauthorized use of company or employee data: Inputting, displaying, or otherwise using the name, data, performance metrics, or identifying information of any company or individual without proper authorization, including competitor data, third-party employee information, or data obtained through unauthorized means;
• Data fabrication to trigger rewards: Submitting, entering, or manipulating false, fabricated, or inaccurate performance data, sales figures, activity metrics, or any other inputs for the purpose of triggering Coin rewards, winning Battles or Challenges, achieving leaderboard rankings, or otherwise obtaining platform benefits that would not otherwise be legitimately earned;
• Systematic gaming of platform features: Coordinating with other users or exploiting platform mechanics to artificially influence outcomes, rankings, or reward distributions in a manner inconsistent with the good-faith competitive use of the Services; or
• Use of the Services in violation of any applicable law, including without limitation labor, employment, anti-discrimination, anti-harassment, privacy, gambling, sweepstakes, securities, or consumer protection laws.
13.2 Customer Responsibility for Authorized Users
Customer is solely responsible for the conduct of all Authorized Users accessing the Services through Customer’s account, including employees, contractors, and any other individuals granted access by Customer. Customer represents and covenants that it has implemented and will maintain reasonable internal controls (including, where applicable, employee policies and training) designed to prevent the prohibited conduct described in Section 13.1. Any violation of Section 13.1 by an Authorized User will be deemed a violation by Customer.
13.3 No Duty to Monitor
Customer acknowledges that Company has no obligation to monitor, review, screen, moderate, or police User Content, Authorized User conduct, or activity on the platform. Company may, but is not required to, do so at its sole discretion, and any decision by Company to monitor or to take any action with respect to platform activity does not create any duty or undertaking by Company to Customer, any Authorized User, or any third party. Customer is solely responsible for monitoring the conduct of its Authorized Users and for compliance with applicable laws relating to workplace conduct, harassment, and discrimination.
13.4 Reporting and Investigation
Upon becoming aware of suspected violations of this Section 13, Company may investigate and take any of the following actions at its sole discretion: (a) issue a written warning to Customer; (b) suspend or restrict the access of individual Authorized Users; (c) revoke Coins or rewards obtained through prohibited conduct; (d) suspend Customer’s account pending investigation; or (e) terminate this Agreement immediately for cause pursuant to Section 8.2. Company’s exercise of any remedy under this Section does not limit its right to seek additional remedies available at law or in equity.
14. Dispute Resolution
14.1 Governing Law
This Agreement is governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
14.2 Exclusive Jurisdiction
Subject to Section 14.5, the parties irrevocably submit to the exclusive jurisdiction of the state and federal courts located in New Castle County, Delaware for the resolution of any disputes arising under or in connection with this Agreement. Each party waives any objection to venue in such courts and any claim that such courts are an inconvenient forum.
14.3 Jury Trial Waiver
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
14.4 Class Action Waiver
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE BROUGHT IN A PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE PROCEEDING. EACH PARTY WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, OR REPRESENTATIVE PROCEEDING AGAINST THE OTHER PARTY.
14.5 Equitable Relief
Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court of competent jurisdiction to protect its intellectual property, Confidential Information, or other proprietary rights.
14.6 Limitation Period
Except for actions for non-payment or breach of intellectual property rights or confidentiality obligations, no action arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
15. Miscellaneous
15.1 Entire Agreement
This Agreement, together with all Order Forms and any addenda incorporated by reference, constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, representations, and understandings, whether written or oral. Any pre-printed terms on Customer purchase orders or similar documents are void and of no effect, even if signed or accepted by Company.
15.2 Notices
All notices under this Agreement must be in writing and will be deemed delivered: (a) when received, if personally delivered; (b) when receipt is electronically confirmed by reply, if transmitted by email; (c) the next business day after deposit, if sent via reputable overnight courier with tracking; or (d) upon receipt, if sent by certified mail, return receipt requested. Notices to Company will be sent to the address designated by Company in the applicable Order Form or to info@earniexp.com. Notices to Customer will be sent to the address provided in the applicable Order Form.
15.3 Assignment
Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, whether by operation of law, change of control, or otherwise, without Company’s prior written consent. Company may freely assign this Agreement, including to an affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of its business or assets. Any purported assignment in violation of this Section is void. This Agreement binds and inures to the benefit of the parties and their permitted successors and assigns.
15.4 Publicity
Company may identify Customer by name and logo as a customer of Company in its marketing materials, website, sales presentations, investor materials, and press releases, provided that such use is consistent with any usage guidelines provided by Customer in writing. Joint press releases or other coordinated public announcements regarding the relationship between the parties will require the prior written approval of both parties.
15.5 Third-Party Services
The Services may integrate with or provide access to third-party products, services, or content. Company makes no representations or warranties regarding, and assumes no responsibility for, any such third-party services. Any relationship between Customer and a third-party provider is solely between Customer and that third party, and Company has no liability arising from such relationship.
15.6 Independent Contractors
The parties are independent contractors. Nothing in this Agreement creates any agency, partnership, joint venture, employment, or fiduciary relationship between the parties.
15.7 Severability
If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the remaining provisions will continue in full force and effect, and the invalid or unenforceable provision will be modified to the minimum extent necessary to make it valid and enforceable while preserving the parties’ original intent.
15.8 Waiver
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Any waiver must be in writing and signed by an authorized representative of the waiving party.
15.9 Counterparts; Electronic Signatures
This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. Signatures delivered electronically (including via PDF, DocuSign, or comparable electronic signature platforms) will be deemed original signatures for all purposes.
15.10 Force Majeure
Neither party will be liable for any failure or delay in performance (other than payment obligations) caused by circumstances beyond its reasonable control, including without limitation acts of God, natural disasters, war, terrorism, civil unrest, government action, pandemic or other public health emergency, labor disturbances, internet or telecommunications failures, third-party infrastructure failures, or cyberattacks (each, a “Force Majeure Event”). The affected party will use reasonable efforts to mitigate the effect of the Force Majeure Event and resume performance as soon as reasonably practicable.
15.11 Modifications to the Agreement
The current version of this Agreement is published at earniexp.com/msa. Company may revise this Agreement from time to time. Material changes will be communicated to Customer’s designated contact via email at least thirty (30) days prior to taking effect. If Customer does not agree to a material change, Customer may terminate this Agreement pursuant to Section 8.4. Continued use of the Services following the effective date of any revision constitutes acceptance of the revised terms. Non-material changes (including corrections, clarifications, and updates to reflect changes in features or law) may be made by Company without prior notice. No modification proposed by Customer (including through markups, redlines, or counter-terms in purchase orders) will be effective unless agreed in writing and signed by an authorized representative of Company.
15.12 Export Compliance
The Services may be subject to U.S. export control and economic sanctions laws. Customer represents and warrants that (a) Customer is not located in, organized under the laws of, or ordinarily resident in any country or territory subject to comprehensive U.S. sanctions, (b) Customer is not identified on any U.S. government list of prohibited or restricted parties, and (c) Customer will not access or use the Services in violation of any applicable export control or sanctions law.
15.13 Headings; Interpretation
Section headings are for convenience only and do not affect the interpretation of this Agreement. The words “including” and “includes” mean “including without limitation.” Each party acknowledges that it has had the opportunity to consult with counsel regarding this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the interpretation of this Agreement.
