BENEPOWER, INC.

MASTER SUBSCRIPTION AGREEMENT

This Benepower, Inc. Master Subscription Agreement (“MSA”) is effective as of the effective date set forth on the applicable signed order form ( “Order Form” and such date the “Effective Date”) and is by and between Benepower, Inc., a Delaware corporation (“Benepower”), and the client that executes the Order Form and thereby accepts this MSA (“Client”).  This MSA is incorporated by reference into each Order Form to form a binding agreement between Benepower and Client (the “Agreement”). Benepower and Client are referred to individually herein as a “Party” and collectively as the “Parties”. In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form shall control.

1. General.  This Agreement provides Client with a limited license to access and use Benepower’s proprietary on-line suite of web and mobile applications, tools and modules known as the “Benepower SaaS Platform” (the “Platform”). “Services” means the Platform, which is provided as a service, as well as other software applications and services that are agreed upon by the Parties and set forth in an Order Form.

2. Other Services. From time-to-time Benepower may provide client with other services that are set forth in one or more Statements of Work signed by Client and Benepower (each, and “SOW”).  Each SOW is incorporated by reference into this MSA as if set forth in full herein.  To the extent that the terms and conditions of any SOW are inconsistent with the terms and conditions of this MSA, this MSA will control unless otherwise expressly stated in such SOW. Benepower may provide services to help enable billing, invoicing or payments on behalf of Clients.  At no time should services offered by Benepower or the Platform be construed as a loan, or facilitating a loan, or other forms of financing by Benepower. Additionally, Benepower may add or deduct fees, taxes and processing charges, as applicable, while enabling payments.

3. Third Party Services. Benepower may from time to time engage other third parties to provide all or part of Services (“Third Party Services”). Third Party Services may be subject to additional or different terms and conditions (“Third Party Service Terms”). When a Member uses Third Party Services, that Member may be required to (i) enroll separately with the Third Party Service provider, (ii) download and use a separate application provided by or on behalf of the Third Party Service provider and/or (iii) accept or otherwise agree to abide by  Third Party Service Terms from such the Third Party Service provider.

4. Service Standards.  All Services provided hereunder shall meet all applicable industry standards and be performed by Benepower and its agents and subcontractors, if any, in accordance with the applicable Order Form or SOW and in a professional manner by qualified personnel trained and skilled in the performance of the specific services involved. The foregoing Services standards shall not apply to Third Party Services. The applicable services standards and warranties for Third Party Services, if any, shall be as set forth in the applicable Third Party Service Terms. 

5. License to Benepower Platform.  Subject to the terms of this Agreement, including any license package definitions or limitations set forth in the Order Form, Benepower hereby grants to Client for the term specified in this Agreement, a worldwide, revocable, non-transferable, non-sublicensable, non-exclusive right and license to access and use the Platform, solely to manage, provision or administer employee benefits or similar services for Client and Client’s customers.  

6. Prohibited Uses. Client and Members using the Platform will not: (a) “frame,” distribute, resell, or permit access to the Platform or Services by any third party other than as allowed by the features and functionality of the Platform or Services; (b) use the Platform or Services in violation of applicable laws; (c) interfere with, disrupt, or gain unauthorized access to the Platform or Services; (d) successfully or otherwise, attempt to: decompile, disassemble, reverse engineer, discover the underlying source code or structure of, or copy the Platform or Services; (e) provide Benepower any Client Data or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party intellectual property rights; (f) transfer to the Platform or otherwise use on the Platform any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Platform; (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Platform; (h) provide access to the Platform or Services to an individual associated with a Benepower Competitor (defined below); (i) extract information from the Platform or Services in furtherance of competing with Benepower; (j) encumber, sublicense, transfer, rent, lease, time-share or use the Platform or Services in any service bureau arrangement or otherwise for the benefit of any third party; (k) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Platform or Services; (l) introduce into the Platform or Services any software containing a virus, worm, “back door,” Trojan horse or similarly harmful code; or (m) permit any third party to engage in any of the foregoing proscribed acts. A “Benepower Competitor” is any entity that provides the same or similar goods and services to those provided by Benepower, as would be determined by a commercially reasonable individual. Client will promptly notify Benepower of any violations of the above prohibited uses by a Member or a third party and require such Member or third party to immediately cease any such use. Benepower reserves the right to suspend Client and/or any Member’s access to the Platform or Services in the event Benepower suspects Client or an Authorized User is in breach of this Agreement.

7. Intellectual Property Rights.  

7.1. Ownership. Each Party will retain all rights, title and interest in any of its software, patents (and applications therefor), inventions, copyrights (and applications therefor), trademarks (and applications therefor), domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (“Intellectual Property Rights”). Benepower retains all Intellectual Property Rights in and to its Confidential Information, the Platform, the Services and all work product arising from provision of the Platform or any Services (including, without limitation, all standard, optional and custom enhancements, modifications, concepts, methods, algorithms, tools, plug-ins, design changes, software updates and all related technical documentation)] (the “Services Information”). Customer retains all Intellectual Property Rights in and to its Confidential Information, including, but not limited to, all Client Data. “Client Data” means all data submitted by Client or Client’s customers to the Platform in the course of using the Platform or other Services.

7.2. Feedback. Customer may, under this Agreement, provide suggestions, enhancement requests, recommendations about the Services, or other feedback to Benepower (the “Feedback”). Customer provides Benepower a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Platform or Services, or otherwise use any Feedback. Benepower also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback.

7.3. Licenses. Customer hereby grants Benepower a non-exclusive, non-transferable, non-sublicensable right and license to use the Client Data, solely to provide the Services to Customer.

7.4. Authorized Users. Customer may designate and provide access to the Platform and Services to employees, agents, or authorized contractors (each an “Authorized User”). Customer is responsible for all use and misuse of the Services by Authorized Users and for adherence to all terms of this Agreement by any Authorized Users, and references to Customer herein will be deemed to apply to Authorized Users as necessary and applicable. Customer agrees to promptly notify Benepower of any unauthorized access or use of which Customer becomes aware. Authorized Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of this Agreement by Customer.

8. Confidentiality.   

8.1 Definition. For the purposes of this Agreement, the Parties define “Confidential Information” to mean any of the information disclosed under this Agreement that is designated by the disclosing party as proprietary or confidential, or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Confidenital Information includes, without limitation, proprietary and/or confidential intellectual property, data, source code, object code, methods, processes, technical or financial data, customer names or other information related to customers, products under development, trade secrets, policies or procedures.  Benepower’s Confidential Information includes any technical, pricing, or performance information about the Platform and Services. Client’s Confidential Information includes the Client Data.

8.2. Obligations. As receiving party, each party will (a) hold in confidence and not disclose Confidential Information to third parties except as permitted in this Agreement, (b) will treat all Confidential Information of the other Party with the same degree of care as it accords its own Confidential Information, but in no event less than reasonable care and (c) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors, subcontractors, and other representatives having a legitimate need to know such Confidential Information, provided the receiving party remains responsible for their compliance with this Section 8 (Confidentiality) and such parties are bound to confidentiality obligations no less protective than this Section 8 (Confidentiality). The obligations concerning Confidential Information set forth herein will survive the termination or expiration of this Agreement.

8.3. Exclusions. These confidentiality obligations do not apply to information that the receiving party can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by law, subpoena, or court order, provided (if permitted by law) it notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment.

8.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which monetary damages alone may be an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 8 (Confidentiality).

9. Term and Termination.  Unless otherwise set forth in the applicable Order Form, the initial term of this Agreement shall be one (1) year, commencing on the Effective Date (the “Initial Term”).  Unless otherwise set forth in the applicable Order Form, following the Initial Term and each Renewal Term, the term of this Agreement shall automatically renew for successive one-year renewal terms (each a "Renewal Term"), unless a Party notifies the other Party in writing of its desire not to renew this Agreement at least thirty (30) days prior to the expiration of the then-current term.  Following the Initial Term, this Agreement may be terminated by Client at any time by giving Benepower at least thirty (30) days prior written notice. This Agreement may be terminated immediately by either Party upon the material breach by the other Party of any term or condition hereof that has not been cured within ninety (90) days after the breaching Party receives written notice thereof.  Upon expiration or termination hereof, any amounts owed to Benepower hereunder shall be immediately due and payable.  Those Sections which by their nature are intended to survive termination or expiration of this Agreement shall so survive.

10. Fees; Payment Terms; Taxes.  Fees pertaining to this Agreement are set forth in the Order Form.  Unless otherwise agreed upon by the Parties, all setup fees and initial license fees are due upon execution of this Agreement.  Commencement of work by Benepower is subject to receipt of all initial fees.  Subsequent invoices remitted by Benepower to Client hereunder shall be due and payable within 30 calendar days of the invoice date unless otherwise provided in an applicable SOW.  If Client accrues unpaid balance(s) over 10 days past due, Benepower, at its sole discretion and in addition to other remedies including by not limited to the right to recover collection costs, may suspend the Services until such past due balances are paid. Any unpaid balances over 30 days net due will accrue a 1% service charge per month until paid.  Invoicing will begin on the Effective Date.  Except for Benepower’s federal and state income taxes and related costs, all taxes and tax-related costs arising from Client’s use of the Platform and/or the Services shall be the responsibility of the Client.

11. HIPAA Compliance: Benepower will comply with the applicable laws and rules for the storage, transmission and release of any “protected health information” (used herein as such defined in HIPAA). Notwithstanding any other provision of this Agreement, Benepower shall not be required to do any act which in its judgment violates HIPAA.

12. Client Data. Ownership of Client Data used on the Platform shall remain with Client. Client retains any and all right, title, interest, and ownership in and to any data imported or entered directly into Benepower systems, excluding any derivative products or technology created by Benepower from the use of such data. Benepower agrees not to use any Client Data that is identifiable to any individual, employer, administrator or client of Benepower, including Client, except for the specific purpose of performing the Services and fulfilling its obligations under this Agreement. Furthermore, Benepower reserves the right to offer additional Services, or for use in aggregated, anonymized form for purposes of monitoring the performance of the Platform and its delivery of the Services, along with enhancing or creating derivative analytical or software products for the use of its customers.  Benepower further agrees not to make Client Data available to any third party without Client’s prior written consent, except to authorized party under BAA and/or NDA where applicable for providing the Service. Provided that Client is current in its payment of fees described in Agreement, Benepower agrees to provide Client with access to all existing Client Data for a period of sixty (60) days following termination of this Agreement.

13. Legal Compliance.  Each Party shall comply with all applicable governmental, legal and regulatory requirements pertaining to this Agreement.  In its use of the Platform and Services, Client shall not distribute any Client Content that: (a) infringes on the intellectual property rights of any third party; (b) violates any federal, state or local law, statute, ordinance or regulation; or (c) is unsolicited, including without limitation junk mail or unsolicited bulk e-mail or SMS messages, or other advertising material to persons or entities that have not specifically agreed to receive Content or messages by opting-in in a lawful manner as permitted by participating mobile service providers and wireless carriers.  Client shall be responsible for its use of the Platform, including but not limited to obtaining any necessary licenses, permissions and/or campaign certifications.  

14. Disclaimer of Warranties.  EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 4 (SERVICE STANDARDS), THE PLATFORM AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT).

15. Mutual Indemnification.  

15.1. Indemnification by Benepower. Benepower will indemnify and hold Client harmless from any third party claim against Client arising out of Client’s use of the Platform or Services as permitted hereunder alleging that such Platform or Services infringe or misappropriate a third party’s valid Intellectual Property Rights. Benepower will, at its expense, defend such claim and pay damages finally awarded against Client in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Benepower for such defense, provided that: (a) Client promptly notifies Benepower of the threat or notice of such claim; (b) Benepower will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Benepower will not settle or compromise any claim that results in liability or admission of any liability by Client without prior written consent); and (c) Client fully cooperates with Benepower in connection therewith. If use of the Platform or a Service by Client has become, or, in Benepower’s opinion, is likely to become, the subject of any such claim, Benepower may, at its option and expense, (i) procure for Client the right to continue using the Platform and/or Service(s) as set forth hereunder; (ii) replace or modify the Platform or Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Benepower, terminate this Agreement and repay, on a pro-rata basis, any tees previously paid to Benepower for the corresponding unused portion of the term of this Agreement for the Platform or Services. Benepower will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (x) compliance with designs, data, instructions or specifications provided by Client; (y) modification of the platform or Services by anyone other than Benepower; or (z) the combination, operation or use of the Platform or Services with other hardware or software where the Platform or Services would not otherwise be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Benepower to Client and constitute Client’s sole remedy with respect to an infringement claim brought by reason of access to or use of the Platform o Service by Client or Authorized Users.

15.2. Indemnification by Client. Client will indemnify and hold Benepower harmless against any third party claim arising out of: (a) use of the Platform or Services in breach of this Agreement; or (b) any allegation that Client Data infringes or misappropriates a third party’s valid Intellectual Property Rights; provided (i) Benepower promptly notifies Client of the threat or notice of such claim; (ii) Client will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Client will not settle or compromise any claim that results in liability or admission of any liability by Benepower without prior written consent); and (iii) Benepower fully cooperates in connection therewith.

16. Limitations on Liability.  ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT OF THE LAW, BENEPOWER SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER FORM (HOWEVER ARISING, UNDER ANY THEORY INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, CONTRACT OR STRICT LIABILITY), INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR INTERRUPTED COMMUNICATIONS, LOST DATA, LOST REVENUE, LOST PROFITS, LOSS OF TECHNOLOGY, LOSS OF RIGHTS OR SERVICES AND/OR DAMAGES THAT RESULT FROM USE, INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE PROGRAM OR THE SERVICES, EVEN IF BENEPOWER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN. Subject to the foregoing, in no case shall Benepower’s aggregate liability during any twelve (12) month period during the term of this Agreement under any circumstances exceed the amounts actually paid to Benepower by Client pursuant to this Agreement during such 12-month period. The Parties understand and agree that the limitation of liability set forth in this Agreement represents a reasonable allocation of risks, and each party expressly consents to such allocation. Benepower shall have no liability of any kind in the event Client’s records or other data submitted for processing are lost or damaged.

17. Publicity.  Unless otherwise set forth in the applicable Order Form, Benepower may publicly refer to Client as a client of Benepower as part of its marketing activities, including, but not limited to, displaying Client’s logo on Benepower’s website. Client agrees Benepower may display “powered by Benepower” verbiage on any mobile applications or web enabled applications licensed to Client as part of the Platform and also on any listings in app stores or directory services e.g. on bottom in app store, splash screens, about screen, page footers, etc.

18. Governing Law.  The validity of this Agreement, the construction and enforcement of its terms, and the interpretation of the rights and duties of the Parties shall be governed by the laws of the State of Delaware, without regard to its conflict of laws principles.  

19. Relationship of the Parties.  Benepower shall provide the Services as an independent contractor and  nothing contained herein or otherwise shall be deemed to create any partnership, joint venture, employment, or relationship of principal and agent between the Parties.  

20. Entire Agreement.  This Agreement, together with all Statements of Work and other attachments hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes any and all agreements or understandings, whether written or oral, between the Parties with respect to such subject matter.  Any capitalized term used but not defined in the exhibits to this Agreement shall have the meanings set forth herein. 

21. Force Majeure.  Except for any payment obligations or disaster recovery obligations hereunder, neither Party shall be liable for failure to perform its respective obligations hereunder if such failure is caused by a circumstance beyond its reasonable control, including but not limited to an act of God, war, riots, embargos, government orders, natural disasters, epidemics electrical or power outages, utilities or telecommunication failures, cloud service or other technical disruptions beyond their control.