FUYL™ Smart Locker System Subscription Terms & Conditions

Thank you for subscribing to LocknCharge (“Company”) FUYL SMART LOCKER SYSTEM SUBSCRIPTION.  By subscribing to the FUYL Smart Locker System Subscription Solution, you (“Customer”) are accepting and agreeing to the Terms and Conditions (“Terms”) herein, and agreeing to the Company’s Terms of Service https://www.lockncharge.com/terms-of-service/.  Company and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

1. SUBSCRIPTION.

Company hereby licenses the right to use to Customer and Customer hereby licenses the right to use from Company the equipment, software, services (“Products”) described in any subscription contract ("Subscription Contract"). Each Subscription Contract shall incorporate by reference the terms and conditions of this Agreement, which shall be binding upon Customer, and contain such other terms as are agreed by Customer and Company. Each Subscription Contract signed or otherwise authenticated by Customer and Company shall constitute a separate subscription of Products ("Subscription”). In the event of any conflict between the terms of a Subscription Contract and the terms of this Agreement, the terms of the Subscription Contract shall prevail. Company reserves all rights to the Products not specifically granted to the Customer in this Agreement or in a Subscription Contract.

2. TERM.

 The initial term (“Primary Term”) for each subscription shall begin on the date set forth on the Subscription Contract as the Commencement Date (“Commencement Date”) and continue for the number of months set forth in the Subscription Contract.  The period beginning on the Commencement Date and ending on the last day of the Primary Term, together with any renewals or extensions thereof, is defined as the “Subscription Period”.  The Subscription Contract is non-cancellable by the Customer for any reason, unless it is terminated by the Customer in writing but only due to Company’s breach of its material obligations of this Agreement which are not cured within thirty (30) days following written notice from the Customer to Company.

3. FEES; TAXES; PAYMENT OBLIGATION.

3.1 Fees.  The non-cancellable subscription payment amount ("Fees") and the payment period for each installment of Fees ("Payment Period") shall be stated in the Subscription Contract.  All Fees and other amounts due and payable under this Agreement or any Subscription Contract shall be paid to the Payment Recipient when due as set forth on the Subscription Contract at the payment address or at such other address as the Payment Recipient may designate from time to time in writing. Whenever Fees and other amounts payable under a Subscription Contract are not paid when due, they will be subject to interest and penalties as prescribed separately by the Payment Recipient in the order documents or otherwise upon a payment breach, CUSTOMER SHALL BE RESPONSIBLE HEREUNDER TO PAYMENT RECIPIENT FOR THE COST OF COLLECTION, INCLUDING ATTORNEY FEES AND EXPENSES.

3.2 Taxes.  In addition to Fees, Customer shall pay to Payment Recipient upon demand sales, use, personal property, added value or other taxes (excepting taxes based on Payment Recipient’s income), fees, levies or assessments (collectively, "Taxes"). 

3.3 Customer’s Obligation.  CUSTOMER’S OBLIGATION TO PAY ALL FEES AND OTHER AMOUNTS WHEN DUE AND TO OTHERWISE PERFORM AS REQUIRED UNDER THIS AGREEMENT AND EACH SUBSCRIPTION CONTRACT SHALL BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SET-OFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER

WHETHER ARISING OUT OF ANY CLAIMS BY CUSTOMER AGAINST COMPANY, PAYMENT RECIPIENT, OR THE SUPPLIER OR MANUFACTURER OF THE PRODUCTS, TOTAL OR PARTIAL LOSS OF THE PRODUCTS OR THEIR USE OR POSSESSION, OR OTHERWISE.

4. DESCRIPTION.

4.1 FUYL Subscription. Pursuant to this Agreement and the Subscription Contract, Company will provide Customer with the Products described in the Subscription Contract, and the right to use the Products as applicable.

4.2 Products. The Products provided as part of the Subscription Contract will be the sole property of Company or its licensors or service providers. Customer will have no rights whatsoever in or to the Products other than the right to use during the Term as provided in the Subscription Contract. Customer acknowledges and agrees that the Contract is a subscription to use, and nothing herein will be deemed or construed as a lease or other grant or transfer of any real or personal property.  Specifically, Customer acknowledges and agrees that Customer has not been granted any real or personal property interest in any Product listed in the Subscription Contract and Customer has no rights under any real or personal property or landlord/tenant laws, regulations, or ordinances pursuant to the Subscription Contract.  Upon execution of the Subscription Contract, Customer shall be granted a non-exclusive, non-transferable and non-sublicensable license for the Primary Term to use the quantities of each item of the Products identified in the Subscription Contract.

4.3 Use; Location; Inspection.  Customer shall: (a) comply with all terms and conditions of any Products provided under the Subscription Contract; and (b) possess and operate the Products only (i) in accordance with this Agreement and the Subscription Contract and any maintenance and operating manuals (“Documentation”) and applicable laws; and (ii) for the business purposes of Customer.  Customer may move Products from the location specified in the Subscription Contract provided that the Customer notifies in writing Company within ten (10) days of such movement, identifying the old and new location, and then only to a location within the United States and Canada and at Customer's expense.  Provided Company complies with Customer's reasonable security requirements, Customer shall allow Company to inspect the premises where the Products are located from time to time during reasonable hours after reasonable notice in order to confirm Customer's compliance with its obligations under this Agreement.

4.4 Installation.  Customer acknowledges and agrees that it is responsible for the installation of the Product in accordance with the Documentation provided by Company with the Product.  Customer further indemnifies Company from any indirect, incidental or consequential damages arising from the incorrect installation of the Product and or non-conformance with the Documentation, including but not limited to the unintended use or misuse of the Product.

4.5 Return.  If Customer decides not to renew a Subscription at the expiration of the Primary Term of any Subscription Contract, Customer will notify Company of its desire not to extend the Subscription and shall; (a) remove all proprietary data from the Products and (b) return them to Company in good condition and order at a place within the contiguous United States designated by Company.  Customer agrees to uninstall and package the Products for return in a manner which will protect them from damage.  Company will provide the Customer with all necessary packaging materials and shall pay all costs associated with the return of the Products.   Customer shall be responsible for missing or damaged Products or operating system Software that would be deemed beyond reasonable wear and tear, and shall promptly reimburse Company for such costs and expenses. Any renewal of the Subscription Period shall be in writing pursuant to a new Subscription Contract. 

4.6 Risk of Loss; Maintenance; Insurance.  (a) From the date the Products are delivered to Customer's ship to location until the Products are returned to Company's designated return location, Customer agrees: (i) to assume the risk of loss or damage to the Products; (ii) to maintain the Products in good operating condition and appearance, ordinary wear and tear excepted; (iii) to comply with all requirements necessary to enforce all warranty rights; and (iv) to promptly repair any repairable damage to the Products, and to promptly advise Company of such damage and repair in writing.  At all times, Customer shall provide the following insurance: (i) casualty loss insurance for the Products for no less than the Stipulated Loss Value (defined below) naming Company as loss payee; and (ii) liability insurance with respect to the Products in an amount as required by Company, naming Company as an additional insured. Upon Company's prior written consent, Customer may provide this insurance pursuant to Customer's existing self-insurance policy. Customer shall either provide Company with an annual certificate of third-party insurance or a written description of its self-insurance policy, as applicable. The certificate of insurance will provide that Company shall receive at least ten (10) days prior written notice of any material change to or cancellation of the insurance policy.(b) If the Products are lost, stolen, destroyed, damaged beyond repair or in the event of any condemnation, confiscation, seizure or expropriation of any Products ("Casualty Products"), Customer shall promptly reimburse Company for at the replacement cost of the Product.

4.7 Standard Support. Company will provide Support which will include remote technical support for the Products exclusively by e-mail or web-support form notification within two (2) business days of receipt of the Customer’s e-mail or web-support form submission. All Support inquiries must be communicated to Company via the following: e-mail support@lockncharge.com, or at web support https://www.lockncharge.com/support.

4.8 Scope of Support.  Company will provide Support to the Customer within the terms and conditions defined in Sections 4.7 and 4.8 and the Subscription Contract ensuring that the Product is operating for its intended purpose and subject to the terms and conditions of the Warranty Section 5 of this Agreement.  Customer will be responsible for all reasonable costs that are not considered as covered under the Warranty Section which may arise from but not limited to misuse, damage or general wear and tear.

4.9 Additional Services.  Additional services requested by and provided to Customer which are not specifically described in the Subscription Contract will be charged to Customer at Company’s standard rates at the time of providing the out-of-scope service.

5. WARRANTY.

5.1 Company warrants that during the applicable Primary Term of the Subscription Contract, the Products will be free from any material defects in materials or workmanship. This warranty shall not apply to any non-conformance (i) that Company cannot recreate after exercising commercially reasonable efforts to attempt to do so; (ii) caused by misuse of the Products or by using the Products in a manner that is inconsistent with this Agreement, the Subscription Contract or the Documentation; (iii) arising from the modification of the Products by anyone other than Company; (iv) resulting from damage, or other than normal wear and tear, to the Product by Customer or any third party; or (v) caused by any problem or error in third party software or hardware not provided by Company with Products regardless of whether or not the Products are designed to operate with such third party software or hardware.  Company’s sole obligation and Customer’s sole and exclusive remedy for any breaches of the warranty stated in this Section shall be for Company to repair or replace the Products.

5.2 IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, SUBSCRIPTION TO PRODUCTS, USE OF PRODUCTS, EVEN IF THE COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OR CERTAINTY OF SUCH DAMAGES AND EVEN IF CUSTOMER ASSERTS OR ESTABLISHED FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT AND COMPANY’s LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE PAST TWELVE (12) MONTHS.

6. REPRESENTATIONS AND WARRANTIES OF CUSTOMER.

 Customer represents, warrants and covenants to Company at the time Customer enters into this Agreement and each Subscription Contract that the execution and delivery of and performance under this Agreement, any Subscription Contracts, Certificates of Incumbency or other documents related to the Subscription Contract ("Documents") to which Customer is a party have been authorized by all necessary action and have been executed and delivered on Customer's behalf by persons duly authorized in that regard. The Documents constitute legal, valid and binding agreements of the Customer, enforceable against Lessee in accordance with their respective terms except as limited by bankruptcy or other similar laws.

7. EVENTS OF DEFAULT.

It shall be an event of default hereunder and under any Subscription Contract ("Event of Default") if:
(a) Customer fails to pay any Fees or other amounts payable under this Agreement or any Subscription Contract within terms defined by the Payment Recipient after the date that such payment is due;
(b) Any representation or warranty made by Customer or any guarantor to Company in connection with this Agreement, any Subscription Contract or any other Document is at the time made materially untrue or incorrect;
(c) Customer fails to comply with any other obligation or provision of this Agreement, or any Subscription Contract and such failure shall have continued for 30 days after notice from Company;
(d) Customer (i) is generally not paying its debts as they become due or (ii) takes action for the purpose of invoking the protection of any bankruptcy or insolvency law, or any such taw is invoked against or with respect to Customer or its property and such petition is not dismissed within 60 days.

8. REMEDIES.

Upon an Event of Default under any Subscription Contract, all of Customer's rights (including its rights to use the Products), but not its obligations thereunder, shall automatically be cancelled without notice and Company may exercise one or more of the following remedies in its sole discretion:
(i) require Customer to return any or all Products as provided in Section 4.5 and/or if requested by Company, assemble the Products in a single location designated by Company granting Company the right to enter the premises where such Products are located for the purpose of repossession;
(ii) declare immediately due and payable as a pre-estimate of liquidated damages for loss of bargain and not as a penalty, the Stipulated Loss Value of the Products in lieu of any further Fees, in which event Customer shall pay such amount to Company within 10 days after the date of Company's demand; or
(iii) proceed by appropriate court action either at law or in equity (including an action for specific performance) to enforce performance by Customer or recover damages associated with such Event of Default or exercise any other remedy available to Company in law or in equity.

9. INDEMNIFICATION.

Customer is responsible for losses, damages, penalties, claims, costs (including attorneys' fees and expenses), actions, suits and proceedings of every kind, (collectively "Claims") whether based on a theory of strict liability or otherwise caused by or related to this Agreement, including any breach hereof by Customer or the Products (including any defects in the Products). Upon Company's request Customer will reimburse and defend Company against any Claims.

10. OWNERSHIP; LIENS AND ENCUMBRANCES; LABELS.

As between Company and Customer, title to Products is and shall remain with Company. Products are considered personal property and Customer shall, at Customer's expense, keep Products free and clear of liens and encumbrances of any kind (except those arising through the acts of Company) and shall immediately notify Company if Customer's interest is subject to compromise. Customer shall not remove, cover, or alter plates, labels, or other markings placed upon Products by Company.

11. NON-PERFORMANCE BY CUSTOMER.

If Customer fails to perform any of its obligations hereunder or under any Subscription Contract, Company shall have the right but not the obligation to affect such performance and Customer shall promptly reimburse Company for all out of pocket and other reasonable expenses, including attorneys’ fees and expenses, incurred in connection with such performance, with interest at the Overdue Rate.

12. NOTICES.

All notices shall be given in writing and, except for invoice and communications in the ordinary course of business, shall be delivered by overnight courier service, delivered personally or sent by certified mail, return receipt requested.  Notices to Company by Customer shall be sent to: 4510 Helgesen Drive, Madison, WI 53718 – Attention: Chief Financial Officer, or such other mailing address designated in writing by Company.  Notice to Customer shall be to the address on the Subscription Contract or such other mailing address designated in writing by Customer.

13. ASSIGNMENT.

(a) CUSTOMER MAY NOT ASSIGN THIS AGREEMENT OR ANY SUBSCRIPTION CONTRACT WITHOUT THE PRIOR WRITTEN CONSENT OF COMPANY. No assignment shall in any way discharge Customer's obligations to Company under this Agreement or any Subscription Contract.
(b) Company may at any time and without notice, but subject to the rights of Customer, transfer, assign, or grant a security interest in any Product, this Agreement, any Subscription Contract, or any rights and obligations hereunder or thereunder, in whole or in part.
(c) Subject to the foregoing, this Agreement and each Subscription Contract shall be binding upon and inure to the benefit of Company, Customer and their successors and permitted assigns.

14. GOVERNING LAW; JURISDICTION AND VENUE; WAIVER OF JURY TRIAL.

THIS AGREEMENT AND EACH SUBSCRIPTION CONTRACT SHALL BE GOVERNED BY THE LAWS OF WISCONSIN WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES.  CUSTOMER CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT LOCATED IN DANE COUNTY, WISCONSIN AND WAIVES ANY OBJECTION TO VENUE, AND FURTHER WAIVES ANY RIGHT TO A TRIAL BY JURY.