SmartHQ Management Commercial Laundry Services Agreement

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY AS YOU WILL BE BOUND BY ITS TERMS.

THESE TERMS AND THE USE OF THE ASSOCIATED SERVICES AND MATERIALS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.  BY USING THE SERVICES COVERED BY THIS AGREEMENT, YOU AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY OR TO PRESENT YOUR CLAIMS AS A MEMBER OF A GROUP OR CLASS OF ANY TYPE.

This Commercial Laundry Services Agreement ("Agreement") is a binding agreement between you ("End User," “Customer,” or "You") and Haier US Appliance Solutions, Inc., d/b/a GE Appliances ("Provider"). This Agreement governs Your use of the Launderday Application and the SmartHQ Management Platform (including, but not limited to, all related data and documentation, defined below and collectively referred to as the"Services"), as well as the use of the Services by any Authorized User of your subscription and/or access to the Services, as defined in this Agreement.

BY CLICKING THE "AGREE" BUTTON/DOWNLOADING/INSTALLING/USING THE SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD/INSTALL/USE THE SERVICES.

1. Definitions.
   1. "Aggregated Statistics" means data and information related to Customer's and any Authorized Users’ use of the Services that is used by Provider in an aggregate and anonymized manner, including (but not limited to) data and information utilized to compile statistical and performance information related to the provision and operation of the Services.
   2. "Authorized User" means Customer's employees, consultants, contractors, and agents of any type who are authorized, permitted, or otherwise enabled by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement
   3. “Commercial Laundry Appliances” means clothes washers and dryers with payment processing capabilities purchased from Provider by Customer.
   4. “Consumer Data” means information that can be used to identify, directly or indirectly, the individuals who pay to use the Commercial Laundry Appliances.
   5. "Customer Data" means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. 
   6. "Documentation" means any of Provider's user manuals, handbooks, guides, or materials of any type provided in any format (including, but not limited to, electronic copies or materials) relating to the Services provided by Provider to Customer.
   7. "Provider IP" means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but does not include Customer Data.
   8. "Services" means the software-as-a-service offering described in Exhibit A.

1. Access and Use.
   1. Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use only and only for the Customer’s own Commercial Laundry Appliances. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. 
   2. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 11(g)) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
   3. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
   4. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
   5. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer's or any Authorized User's use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 4(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. 
   6.  Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
2. Customer Responsibilities.
   1. General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.

            (b)        Customer is solely responsible for providing adequate, secure wifi infrastructure to support the Services, including appropriate routers and service from an Internet service provider to permit connection of the the Commercial Laundry Appliances to the Internet.

            (c)        Customer agrees to (i) keep and maintain all Consumer Data in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure and (ii) comply with applicable privacy and data protection laws. 

            (d)        Customer agrees to implement and maintain a written information security program including appropriate policies, procedures, and risk assessments that are reviewed at least annually.

            (e)        Customer agrees to immediately notify Provider of any act or omission that compromises either the security, confidentiality, or integrity of Consumer Data or the physical, technical, administrative, or organizational safeguards put in place to protect the security, confidentiality, or integrity of Consumer Data.  Without limiting the foregoing, a compromise shall include any unauthorized access to or disclosure or acquisition of Consumer Data. 

            (f)        Customer expressly acknowledges that the installation, examination, assessment, repair, and/or removal of its Commercial Laundry Appliances presents various risks and dangers, including (but not limited to) the potential for electric shock and mechanical disturbances that could result in serious physical injury and/or death.  Customer expressly acknowledges and agrees that it will ensure that any Authorized User utilizing the Services to perform installation, examination, assessment, repair and/or removal of any Commercial Laundry Appliance will possess the required qualifications, training, experience, and knowledge for performing such action on the Commercial Laundry Appliance and that any such Authorized User will abide by any and all warnings provided via the Services in performing any such action.  Customer also expressly acknowledges that the Services may not identify every danger or warn of every possible hazard related to the installation, examination, assessment, repair, and/or removal of a given Commercial Laundry Appliance.  Customer agrees to communicate these limitations and expectations of qualifications, training, experience, and knowledge to each Authorized User utilizing or accessing the Services in any way.  All Customers and Authorized User(s) of the Services expressly assume all risk of use of the Services, including the risk of property damage, personal injury, or death.  Consistent with the requirements of Paragraph 8(b), Customer agrees to defend and indemnify Provider against any and all actions, claims, or lawsuits of any type for property loss, personal injury, and/or death related to Customer’s and its Authorized Users’ use of the Services to the fullest extent permitted by law, including (but not limited to) claims allegedly arising from Provider’s sole negligence.

1. Fees and Payment.
   1. Fees. Customer shall pay Provider the fees ("Fees") as set forth in Exhibit A without offset or deduction. If Customer fails to make any payment when due, without limiting Provider's other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
   2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.  Where applicable, Provider will add sales tax and similar taxes to the Fees payable by Customer.  Provider will not impose such taxes if and to the extent Customer timely provides Provider with a valid exemption certificate to reduce or exempt the otherwise applicable sales or similar tax.
2. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
3. Intellectual Property Ownership.
   1. Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider.
   2. Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer , and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
4. Limited Warranty and Warranty Disclaimer.
   1. Provider warrants that the Services will be performed in all material respects using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
   2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(a),THE PROVIDER IP IS PROVIDED "AS IS" AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. 
5. Indemnification.
   1. Provider Indemnification.
      1. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, costs (including reasonable attorneys' fees), or liabilities of any type ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights/US patents, copyrights, or trade secrets; provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
      2. If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
      3. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products. 
   2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses related to or resulting from any action, claim, (including Third-Party Claims), or suits of any kind that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates the Customer’s or any such third party’s intellectual property rights,  as well as any actions, claims (including Third-Party Claims), or suits of any kind based on Customer's or any Authorized User's (i) alleged negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (iv) modifications to the Services not made by Provider, (v) claims or allegations that Customer’s use of the Provider IP or Customer Data violates any applicable law, or (vi) property damage, personal injury, or death related to the use of the Services in any way, including (but not limited to) claims alleging arising from Provider’s sole negligence; provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
   3. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER'S LIABILITY UNDER THIS SECTION 9 EXCEED $5,000. 
6. Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (e) FAILURE OR FAULT OF ANY WIFI (OR OTHER COMPUTER OR TELECOM INFRASTRUCTURE) SUPPLIED BY CUSTOMER;  (f) THE INABILITY OF CUSTOMER TO COLLECT PAYMENTS FROM USERS OF THE COMMERCIAL LAUNDRY APPLIANCES; (g) ANY DISPUTE BETWEEN CUSTOMER AND THE THIRD-PARTY PAYMENT PROCESSOR THAT SUPPORTS THE SERVICES; (h) DAMAGE OR LOSS TO PAYMENT PROCESSING MECHANISMS CAUSED BY CUSTOMER OR ANY THIRD PARTY; OR (i) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING PROVIDER’S PARTIAL OR SOLE NEGLIGENCE), OR STRICT LIABILITY EXCEED THE FEES PAID TO PROVIDER IN THE 12 MONTH PERIOD PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY. PROVDER AGREES TO OBTAIN INSURANCE FOR ANY SUCH LIABILITIES IN EXCESS OF THIS AMOUNT AND TO LOOK EXCLUSIVELY TO ANY SUCH INSURANCE FOR RECOVERY RELATED TO SUCH INCIDENT, INCLUDING WAIVING ANY RIGHT OF SUBROGATION AGAINST PROVIDER FOR ANY CLAIMS OR DAMAGES OF ANY TYPE RELATED TO THE EVENT.
7. Term and Termination.
   1. Term. The term of this Agreement begins on the date you begin using the Services and will continue in effect unless terminated earlier pursuant to this Agreement's express provisions (the "Term").
   2. Termination. In addition to any other express termination right set forth in this Agreement:
      1. Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Provider's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 5;
      2. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
      3. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
   3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer's obligations under Section 5, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
   4. Survival. This Section 10(d) and Sections 1, 4, 5, 6, 7(b), 8, 9, and 11 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
8. Miscellaneous.
   1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
   2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
   3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, OTHER POTENTIAL DISASTER(S) OR CATASTROPHE(S), SUCH AS EPIDEMICS, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
   4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
   5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
   6. Governing Law; Dispute Resolution. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any disputes or claims arising hereunder, including any disputes involving third parties, shall be arbitrated, except for claims by Provider for breach of confidentiality, priv acy, or security. Unless otherwise specified or prohibited by law, the specific manner of arbitration shall be as follows: disputes with amounts in controversy under $3,500 shall be arbitrated by the Better Business Bureau in accordance with their rules and procedures. Disputes with amounts in controversy above $3,500 shall be referred to the Center for Public Resources in accordance with their rules and procedures. Each party shall bear its own costs and expenses. For purposes of claims brought by Provider against you, such as for non-payment, breaches of confidentiality, etc., you irrevocably submit to jurisdiction to the courts located in the Commonwealth of Kentucky, County of Jefferson..
   7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
   8. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
   9. US Government Rights. Each of the Documentation and the software components that constitute the Services is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
      1. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. 

Exhibit a

Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.

Pricing is set at a percentage of the gross revenue generated by the use of the Services by commercial laundry users and varies depending on the Service Tier.

To avail itself of the Services, Customer must purchase a payment processing module for each Commercial Laundry Appliance unit (available separately).  To use the Services to process payments using the mobile app and QR code functionality, the Basic Tier of service is required. (If the machine’s payment processing module supports coin and the owner opts to use only coin as their payment method, the Basic Tier of service is not required.)

The Services are bundled in three service-level tiers/packages.

1.   BASIC supports and enables the app/QR code based payment system. At this tier of service the Customer has access to the basic owner’s dashboard. This includes:

• Revenue monitoring
• Machine error notifications
• Customer refund request management
• Service lock/unlock
• Account management
• Three user capability
• Remote price setting

2.   MARKETING is additive to the BASIC tier, and can be used separately or in conjunction with OPERATIONS. MARKETING brings on enhanced functionality such as:

• Multiple user capability
• Remote machine parameter programming
• Marketing and promotion capabilities
• Variable time of day pricing

3.   OPERATIONS is additive to the BASIC tier, and can be used separately or in conjunction with MARKETING. OPERATIONS adds features such as:

• Multiple user capability
• Advanced machine diagnostic/error code reporting
• Advanced financial reporting and automations
• Task assignment and management
• Notification assignment and management
• Remote machine parameter programming

2. FEES:

• The BASIC service delivers a secure payment platform with PCI compliance and fraud protection. A comprehensive 8% Service Fee applies to all user payments processed using the Services. The Basic Service Fee includes the use of the Launderday App to enable QR Code Payments and the accompanying SmartHQ Management portal, payment processing fees, fraud protection services, and bank transfer fees.

• MARKETING: TBD
• OPERATIONS: TBD

C. PAYMENTS

The Service Fee is automatically deducted from every payment processed via the Services. The fee applies to each and every App-based payment made via the Launderday App during the Term of this Agreement.  Upon termination of this Agreement, users will no longer be able to use the Services to pay for use of the Commercial Laundry Appliances.  Customer may monitor and manage their revenues via the SmartHQ Management portal.  Customer may choose the frequency of their payouts, either biweekly or monthly.

GE Appliances has negotiated a single third-party payment processor to manage these payments. GE Appliances reserves the right to pass any payment processing fee increases on to the Customer in the form of increased Service Fees. GE Appliances reserves the right to change third party payment processors. Customer does not have the ability to choose a payment processor of their own, they must use the processor of GE Appliance’s designation.

D.        ADDITIONAL SERVICE TERMS

1. Depending on the model of the commercial laundry unit chosen, the included QR code app payment feature and the corresponding owner portal may be the only method of payment exchange; in some cases, however, other forms of payment may also be available such as coin payments. It is up to the purchaser to understand which equipment they are purchasing. If the unit offers the QR/App payment exchange as the only method of payment exchange, there is no other payment vehicle that can be employed on the machine. They cannot be retrofitted to offer other options. Modification or tampering of GE Appliances’ equipment to enable unintended methods of payment invalidates the warranty.
2. GE Appliances has predetermined the payment processor of choice. This payment processor is activated by Customer when the account is set up in the SmartHQ Management portal for Commercial Laundry. No other third-party payment processor can be utilized with GE Appliances’s proprietary QR Code/App payment system.
3. Customer acknowledges that GE Appliances has no access to users’ personal banking informationor the payment details of any paying user of the Commercial Laundry Appliances. These details are all encrypted and handled by a third-party payment processor.
4. If the equipment model accepts alternate forms of payment, such as coin, Cusotmer is responsible for purchasing the coin mechanisms as they are not included on any GE Appliances models.
5. Pricing for use of the Commercial Laundry Appliances is set by Customer in its own SmartHQ Commercial Laundry portal. The pricing is per cycle or per time increment. Depending on the machine configuration, the time of the cycle may be pre-set or it may be modifiable by Customer. In any case, the price set by Customer is the price charged to the user for the cycle whether it is by timed cycle or pre-programmed cycle with a unmodifiable duration.
6. Refund requests are made by users/consumers via the Launderday App to the Customer. Customer may view the refund requests in their SmartHQ Management portal and are responsible for settling their cycle refunds with the users. GE Appliances has no involvement with or responsibility to Customer’s users.
7. Customer must process all refund requests within five (5) working days, to take place by 11:59PM on the Sunday of each week. Failing to do so automatically declines the user’s refund request unless Customer has opted to approve all refund requests in the SmartHQ management portal.
8. Cycle fees are refunded to Customer minus the Sevice Fees.
9. Customer sets its own frequency of balance payouts to their financial institution of choice in the SmartHQ Management Portal.
10. The SmartHQ Management portal may offer enhanced benefits or services in the future. These may be available for an incremental fee. Please contact your GE Appliances representative for details.
11. The ability of machines to accept payment and execute App-initiated cycles is dependent on the wifi signal provided by Customer of the Commercial Laundry Appliances. These units have wifi on board but they must be linked to an internet service/router within an appropriate range and with appropriate strength and bandwidth. It is solely Customer’s responsibility to provide appropriate wifi functionality to support the Services. Please refer to GE Appliances’ wifi specifications for connected appliances for more details.
12. GE Appliances cannot be held responsible for failures or outages of the Services or Customer’s inability to access the Services due to Customer’s wifi/router service or coverage or other connectivity issues arising from or the responsibility of Customer’s telecom or other similar provider.