14299262v1

EXHIBIT A 

TO 

DEFENDANT’S THIRD PARTY COMPLAINT 

CASE NO.: 1:20-cv-22977 

Case 1:20-cv-22977-UU Document 17-1 Entered on FLSD Docket 10/01/2020 Page 1 of 16
PUNCHH SERVICES AGREEMENT 

This Services Agreement (the “Agreement”) is entered into on __________ (the “Effective Date”) between

Punchh, Inc., a Delaware corporation having its principal office at 530 Lakeside Dr Suite 240, Sunnyvale, 

CA 94085 (“Punchh”), and CiCi Enterprises LP (“Customer”) with corporate headquarters located at 1080 

West Bethel Road, Coppell, TX 75019.

Pursuant to the terms set forth herein, Punchh will provide an online and mobile interface for 

Customer, develop and host a private-label mobile application for Customer and provide such other services 

as set forth herein. 

NOW, THEREFORE, in consideration of the terms and conditions contained herein, the parties 

agree as follows: 

1. DEFINITIONS. 

1.1 “App Store” means the app store or distribution platform where a mobile application must 

be uploaded, submitted, or subject to approval of a third party for inclusion and availability on the applicable 

mobile platform, (e.g., the Apple App Store, and Google Play). 

1.2 “Customer Content” means all information, data, text, visuals, graphics, artwork, 

animation, video content, or other content or materials, including any Updates thereto, as further described in 

Exhibit A attached hereto. 

1.3 “Customer Locations” means an individual storefront specifically set forth in Exhibit C, 

attached hereto. 

1.4 “Customer Web Dashboard” means the website Punchh.com accessible via the internet 

which is intended for use only by Customer’s owners, employees or other authorized designees to administer

Customer’s Promotional Programs.

1.5 “Customized Content” means content created and/or developed by Punchh that (i) utilizes

Customer Content, (ii) is created solely for Customer for use in the Private Label App and (iii) excludes any 

Punchh Software. 

1.6 “IPR” means patent rights (including patent applications and disclosures), copyrights,

Marks, trade secrets, know-how and any other intellectual property rights recognized in any country or 

jurisdiction in the world. 

1.7 “Marks” means the trademarks, service marks, logos or trade names used by a party to 

identify itself and/or its products and services during the Term.

1.8 “Order Form” means an appendix to this Agreement that describes the commercial terms 

of the products that the Customer agrees to purchase from Punchh. 

1.9 “Private-Label App” means the mobile application that incorporates the Customer Content

and is accessed independently from the Punchh App. 

1.10 “Promotional Programs” means any of Customer’s customer acquisition, customer 

retention, and/or marketing programs that are incorporated into the Private-Label App and other promotional 

use of the Private-Label App by Customer. 

1.11 “Punchh App” means the Punchh mobile application that Punchh develops for all mobile 

handheld devices on all platforms, and any and all Updates, Upgrades and future enhancements that Punchh 

develops for such mobile application. 

Mar 31, 2015

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1.12 “Punchh Software” means any Punchh or third party software used by Punchh to provide 

the development, processing, hosting and analytic services provided by Punchh in connection with Punchh’s

business, the Punchh App and Private-Label App. 

1.13 “Statement of Work” also known as “SOW” means an appendix to this Agreement that

describes the commercial terms and project plan that the Customer agrees to purchase from Punchh. 

1.14 “Update” means a software download for the Private-Label App through the iPhone App 

Store or Android Play for the Private-label app to address bug fixes and dependency based updates like a 

mobile operating system.

1.15 “Upgrade” means a software download for the Private-Label app through the iPhone App 

Store or Android Play Store to address new or additional customer requirements. 

1.16 “User” means an individual who downloads the Private-Label App on his/her mobile 

handheld device and registers with Punchh to use the Private-Label App. 

1.17 “User Data” means all (a) non-personally identifiable, aggregate User data, including any 

aggregate or statistical information relating to User’s usage of the Private-Label App, obtained or collected 

by Punchh in connection with the Private-Label App; and (b) opt-in user registration data or other personal 

User information, obtained or collected by Punchh in connection with the Private-Label App. 

2. PRIVATE-LABEL APP 

2.1 Development of the Private-Label App. Subject to Customer’s payment of applicable fees,

Punchh shall develop the Private-Label App to include the Customer Content and Customer Marks as 

described in Exhibit A. Customer will provide Customer credit card details or other payment method details 

to Punchh on or before the Effective Date. Upon completion of the Private-Label App, Punchh shall deliver a 

copy of the Private-Label App to Customer. After receiving the copy of the Private-Label App, Customer 

shall distribute the Private-Label App in accordance with Section 2.5 below. 

2.2 License to Private-Label App. Subject to Customer’s compliance with the Agreement, and 

without additional royalties Punchh hereby grants solely to Customer, its affiliates or third parties operating 

on its behalf a non-exclusive worldwide, transferable and sublicensable right to: (i) distribute the Punchh 

Software as part of the Private Label App by uploading it to the App Store; (ii) modify, monitor and manage 

the Punchh Software as part of the Private Label App; and (iii) manage, organize and perform Promotional 

Programs utilizing the Punchh Software as part of the Private Label App. 

2.3 License to Customer Content. Customer hereby grants to Punchh a non-exclusive, 

non-transferable, royalty-free, worldwide license, ,to reproduce, digitize, adapt or modify format (without 

any change to the text expression or substantive content thereof), transmit, distribute, perform, publicly 

display, create derivative works based on, and otherwise use the Customer Content solely in connection with 

(a) creating, operating, maintaining, servicing, displaying, supporting and hosting the Private-Label App, and 

(b) permitting Users to access, display and transmit the Customer Content via the Private-Label App. Upon 

termination or expiration of this Agreement, Punchh will have no obligation to remove such Customer 

Content from any User’s mobile handheld device, provided that upon such termination or expiration, the

User will not receive new or refreshed Customer Content for the Private-Label App. 

2.4 Restrictions. Customer acknowledges that the Private-Label App contains Punchh 

Software, which is licensed, not sold. Except as authorized herein, Customer shall not: (i) copy, reverse 

engineer, decompile or disassemble the Punchh Software (as incorporated into the Private-Label App); (ii) 

make the Private-Label App, in whole or in part, available to any other persons, entity, or business, except 

affiliates, service providers and other representatives of Customer, and other end users of Customer; (iii) 

modify the Private-Label App or Punchh Software (as incorporated into the Private-Label App); or (iv) 

combine the Punchh Software (as incorporated into the Private-Label App) with any other software services 

not provided or approved by Punchh. 

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2.5 Distribution. Customer will manage distribution of the Private-Label App for the 

Customer Locations during the Term. Customer shall upload and/or submit the Private-Label App along with 

any required documents to the applicable App Store for listing and/or approval. Customer shall register 

and/or submit the Private-Label App to App Stores under Customer’s name or shall request Punchh to submit 

the Private-Label App. The Private-Label App may only be distributed through App Stores. Customer shall 

be responsible for providing terms of use and a privacy policy that govern the Private-Label App, subject to 

Punchh’s approval. Customer acknowledges and agrees that its ability to exploit and distribute the 

Private-Label App is dependent upon and subject to third parties, including the operators of App 

Stores. Customer shall enter into and maintain all applicable development agreements with the App Stores 

(collectively, the “App Store Agreements”). If Customer, with reasonable assistance from Punchh, is not able 

to get its Private-Label App accepted to the App Stores, Punchh will refund the setup fee and this Agreement 

will be terminated so that the Customer is not liable for any further fees. 

2.6 Hosting. The parties agree that Punchh (or Punchh’s subcontractors or sub-licensees) will 

be responsible for hosting and operating the Private-Label App in accordance with the Service Level 

Commitment in Exhibit B. Notwithstanding anything to the contrary, Customer acknowledges and agrees 

that Punchh is not responsible for and will not be liable for any failure by, error of, or defect in, any 

third-party (including and Users’) network or hardware which may contribute to the functionality or

availability of the Private-Label App. 

3. FEES AND REPORTS.

3.1 Fees. Terms that are not otherwise defined in this Agreement have the meanings and values 

set forth in the attached Order Form. Customer shall pay to Punchh the applicable fees for the Services as set 

forth in the attached Order Form. Fees are due and payable at the beginning of the Term unless otherwise 

specified in the Order Form. If Customer provides credit card information to Punchh, Customer authorizes 

Punchh to bill such credit card at the time Customer orders any Services, for all Services and the amount set 

forth in the Order Form, and at the time of any renewal, for the amount charged for any renewal Term(s) as 

mutually agreed by the parties. If Customer did not pay by credit card, Punchh shall bill Customer through 

invoice, in which case payment for undisputed charges is due 30 days from the invoice date or as described in 

the Order Form, which shall in no event be less than 30 days from the invoice date. Delinquent payments for 

undisputed charges that remain past due 30 days after Customer has received notice thereof are subject to late 

payment fees equivalent to 1.5% of the overdue balance per month (or the maximum permitted by law, 

whichever is lower), plus any expenses associated with collections. Fees are exclusive of all taxes, levies, 

and duties imposed by taxing authorities, and Customer is responsible for all such taxes, excluding taxes 

based solely on Punchh’s income. If and when additional locations are added to Customer’s account as 

agreed by the parties in writing, Customer will be invoiced for such additional locations, which will be 

prorated for the balance of the then-current Term. Any billing disputes must be reported to Punchh in writing 

within 60 days of the date of the invoice. All fees paid are non-refundable, except as provided herein. If 

Customer’s account is past due 30 days or more after Customer receives notice thereof (except with respect to 

fees or charges for which there is a reasonable and good faith dispute), Punchh may suspend the Services 

upon prior written notice without liability until such amounts are paid in full, in addition to any of its other 

rights or remedies; provided that Punchh shall resume suspended Services immediately upon payment of 

such overdue amount. 

3.2 Reports. Punchh will, during the Term, make its online reporting system available to 

Customer via the Customer Web Dashboard so that Customer can monitor usage of the Private-Label App. 

4. INTELLECTUAL PROPERTY RIGHTS. 

4.1 Proprietary Rights. Punchh acknowledges that Customer or its licensors are the sole 

owners of all IPR in and to the Customer Content and the Customer Marks. Punchh will not acquire any 

rights in the Customer Content and the Customer Marks by virtue of this Agreement, except as expressly set 

forth in this Agreement. Customer acknowledges that Punchh or its licensors are the sole owners of the 

Punchh Software. Customer will not acquire any rights in the Punchh Software, except as expressly set forth 

in this Agreement. 

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4.2 Customized Content. Subject to receipt of full payment, Punchh hereby assigns and 

transfers to Customer any and all of Punchh’s right, title and interest in Customized Content created pursuant 

to the terms of this Agreement. If any portion of the Customized Content cannot, by operation of law, be 

deemed a “work made for hire”, then Punchh grants to Customer an exclusive, perpetual, royalty-free license 

to use such portion(s) of the Customized Content for all purposes deemed necessary or desirable by 

Customer. 

4.3 User Data. To the extent permitted by (a) applicable law and (b) Punchh’s privacy policy

in effect at the time such data was collected, Punchh will provide User Data to Customer, periodically or 

within two (2) days of Customer’s request during the Term in a format that is mutually acceptable to the 

parties. All User Data will be owned by Customer. Punchh will not share the User Data with any third parties 

for any purpose. Punchh retains the right to use the User Data for its internal purposes to modify, improve 

and/or enhance the Punchh services and Punchh Software, including but not limited to the Private-Label App 

and Punch App. Punchh can also use the aggregate data to consolidate with other customers data, in order to 

create aggregate reports that do not refer to any specific customer but provide statistics on an industry 

segment. 

4.4 Trademark Licenses. During the Term, (i) Customer grants to Punchh a personal, non-exclusive, 

non-transferable license to use the Customer Marks solely in connection with Punchh’s creation, marketing,

promotion, and distribution of the Private-Label App pursuant to this Agreement and (ii) Punchh grants to 

Customer a non-exclusive, non-transferable license to use the Punchh Marks solely in connection with 

Customer’s promotion of the Private-Label App pursuant to this Agreement. Any and all goodwill and other 

proprietary rights that are created by or that result from a party’s use of the other’s Marks hereunder inure 

solely to the benefit of the owner of such Marks. Each party shall at all times recognize the validity of 

the marks owned by the other party and the rights and title of the owner therein. The parties shall 

not, during the term of this Agreement or thereafter, attack, impair or put in issue the title or any 

rights of licensor in and to it marks or attack the validity of the license granted herein. Each party 

agrees to assist the licensor in the protection and defense of any of its rights in its marks, in the 

filing and prosecution of any trademark applications, renewals, and the like, in the recording of this 

Agreement or any other relevant agreements, and in the doing of any other acts with respect to the 

licensor’s marks, including the prevention of the use thereof by any unauthorized persons, that in 

the judgment of the licensor may be necessary or desirable under any law, regulation or decree of 

the United States. Each party agrees to notify the other party promptly in writing of any 

infringements or imitations by others of the other party’s marks which come to its attention and the 

licensor shall have the sole right to determine whether or not any action shall be taken on account of 

any such infringements or imitations. Each party shall not have any rights against the other party 

(or any parents, subsidiaries or other affiliates thereof, and the respective officers, directors, 

owners, agents and employees of each of them) for damages or other remedy by reason of owner’s

failure to prosecute any alleged infringements or imitations by others of it marks. Each party agrees 

that it will never take or continue any action which it knows or has reason to know would result in 

or cause a boycott of any product or service bearing the other party’s marks, or threaten to injure or 

diminish the image or reputation of the party that owns the marks or any products or services 

offered under such Marks. In the event any action taken or continued by the party licensed to use 

the other party’s marks hereunder results, or threatens to result, in any such injury, then the party 

licensed to use the other party’s marks agrees to promptly take all steps reasonably necessary to 

avoid or stop the occurrence of such injury. 

5. CONFIDENTIAL INFORMATION. Each party shall retain in confidence the terms of this 

Agreement and all non-public information and know-how of the other party disclosed to or acquired by such 

party (the “Receiving Party”) in connection with this Agreement which is either designated as confidential or

which by the nature of the circumstance ought in good faith to be treated as confidential, including, 

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non-public pricing and cost information, business plans and sales information (“Confidential Information”).

Each party may, notwithstanding the foregoing, disclose the terms and conditions of this Agreement to its (i) 

affiliates and the consultants and agents of such party and its affiliates, as reasonably necessary in the 

ordinary course of its business or (ii) as compelled by court order, subpoena or similar instrument compelling 

disclosure or as otherwise required by law, provided that the party being compelled to make the disclosure 

shall (to the extent legally permitted) provide prompt written notice of such required disclosure to the other 

party and allow such other party the opportunity to seek a protective order. Each party agrees to hold and to 

cause its affiliates and the consultants and agents of such party and its affiliates, to hold, any and all such 

Confidential Information of the other party in confidence, and to protect the Confidential Information of the 

other party from unauthorized disclosure, employing precautions at least as great as those taken to protect its 

own confidential information of a similar nature. Notwithstanding the foregoing, Confidential Information 

shall not include any information that: (i) was known by the Receiving Party prior to disclosure thereof by the 

other party; (ii) was in or entered the public domain through no fault of the Receiving Party and not in 

violation of this Agreement; (iii) is disclosed to the Receiving Party by a third party legally entitled to make 

such disclosure without violation of any obligation of confidentiality; or (iv) is independently developed by 

the Receiving Party without reference to any Confidential Information of the other party. 

6. TERM AND TERMINATION 

6.1 Term. The term of this Agreement (the "Term") will commence upon the Activation Date 

and will, unless terminated as provided herein, continue for 24 months. After 12 months from the Activation 

Date, Customer may cancel with 180 days advanced written notice. After 24 months, the Agreement will 

continue automatically and Customer may cancel upon 30 days written notice, while Punchh may cancel 

upon 60 days written notice. The Agreement shall also extend for the length of any outstanding Order Form. 

6.2 Termination for Breach. Either party may terminate this Agreement upon 15 days written 

notice if the other party is in material breach of any of its obligations under this Agreement and such party 

fails to remedy the breach within such 15 day period. 

6.3 Effect of Termination or Expiration. Upon any termination of the Agreement, Punchh will 

cease the functionality of the Private-Label App. Punchh shall have no liability to Customer related to failure 

of the Private-Label App to operate after such termination. Upon any termination of the Agreement, Punchh 

will return the database of User Data to the Customer. 

6.4 Survival. Sections 4, 5, 7.3, 8 and 9 shall survive any expiration or termination of this 

Agreement. 

7. REPRESENTATIONS AND WARRANTIES. 

7.1 Customer. Customer represents and warrants that (i) it has the necessary rights to grant the 

licenses granted hereunder; (ii) the Customer Content and Customer Marks, and the use thereof as 

contemplated and authorized in this Agreement, do not and will not infringe upon the IPR of any third party; 

(iii) the Customer Content and Customer Marks, and the use thereof as contemplated and authorized in this 

Agreement, do not and will not violate the publicity or privacy right of any third party, or defame any third 

party; (iv) all Promotional Programs are in compliance with all applicable laws and no consent or other 

permissions or authorizations are required for the operation of such Promotional Programs; and (v) it shall 

enter into and maintain compliance with all applicable App Store Agreements. Customer will have no 

obligation or other liability with regard to any non-compliance with these representations and warranties that 

is caused by Punch’s negligence or the misuse or improper use of the User Data or Customer Marks by or on 

behalf of Punchh. 

7.2 Punchh. Punchh represents and warrants that (i) the Private-Label App (excluding 

Customer Content and Customer Marks), Punchh Software, Punchh App and Punchh Marks will not infringe 

upon the U.S. copyright, patent, trademark or trade secret rights of any third party, and (ii) its services will be 

performed in a good and workmanlike manner and in compliance with all applicable laws and regulations, 

and (iii) the Private-Label App shall substantially conform to the documentation provided. Punchh will have 

no obligation or other liability with regard to any non-compliance with these representations and warranties 

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that is caused by Customer’s negligence or the misuse or improper use of the Private-Label App by or on 

behalf of Customer. 

7.3 Limitations. THE REPRESENTATIONS AND WARRANTIES OF CUSTOMER AND 

PUNCHH AS SET FORTH IN THIS SECTION 7 OR OTHERWISE IN THIS AGREEMENT ARE THE 

SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY THE PARTIES. 

EACH PARTY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL 

OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR 

STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR 

A PARTICULAR PURPOSE, - AND DATA ACCURACY. THE PARTIES AGREE THAT PUNCHH IS 

NOT INVOLVED IN SELECTING THE ELEMENTS OF THE PROMOTIONAL PROGRAMS AND 

DISCLAIMS ANY AND ALL LIABILITY RELATING THERETO. 

8. INDEMNIFICATION; LIMITATION OF LIABILITY.

8.1 Indemnification. Each party (an “Indemnifying Party”) shall indemnify, defend and hold

the other party, its affiliates and each of its officers, directors, employees and agents harmless from any and 

all claims or damages incurred or suffered by such party arising out of, or in connection with any third party 

claim based upon or arising out of or alleging facts constituting any breach of this Agreement by the 

Indemnifying Party or the Indemnifying Party’s gross negligence or willful misconduct.

8.2 LIMITATION ON LIABILITY. EXCEPT FOR EACH PARTY’S INDEMNIFICATION

OBLIGATIONS, IN NO EVENT WILL (1) EITHER PARTY’S TOTAL LIABILITY TO THE OTHER 

UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF 

LIABILITY, EXCEED THE AMOUNT OF PAYMENTS ACTUALLY MADE BY CUSTOMER TO 

PUNCHH UNDER THIS AGREEMENT DURING THE 12 MONTHS PRIOR THE CLAIM ARISING 

AND (2) EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, 

PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST 

PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWIILL) ARISING OUT OF OR IN 

CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE 

APPLICATIONS OR ARISING OUT OF ANY SERVICES PROVIDED BY PUNCHH HEREUNDER, 

WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF 

CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT 

LIABILITY OR OTHERWISE, AND WHETHER OR NOT PUNCHH HAS BEEN ADVISED OF THE 

POSSIBILITY OF SUCH DAMAGE. 

9. GENERAL 

9.1 Assignment. Neither party may assign or transfer this Agreement without the other party’s

express prior consent; provided however, that either party may assign or transfer this Agreement with notice 

in connection with (i) the merger of the assigning party with another entity; (ii) the sale of the majority of 

voting stock of the assigning party; or (iii) the sale of all or substantially all of the assigning party’s assets or 

business to which this Agreement relates. Any attempt to assign or transfer this Agreement without such 

consent will be null and of no effect. Subject to the foregoing, this Agreement will bind and inure to the 

benefit of each party’s permitted successors and assigns. 

9.2 Governing Law and Jurisdiction. This Agreement will be governed by and construed in 

accordance with the laws of Delaware, excluding conflict of law principles. Any legal action or proceeding 

arising under this Agreement will be brought exclusively in the federal or state courts, including, but not 

limited to, the Delaware Court of Chancery located in New Castle County, Delaware, and the parties hereby 

irrevocably consent to personal jurisdiction and venue therein; provided, however, that either party may seek 

interim or temporary injunctive relief in any court of competent jurisdiction to remedy or prevent any actual 

or threatened breach of confidentiality pending ultimate resolution of the dispute as described above. 

9.3 Severability. If a court of competent jurisdiction finds any provision of this Agreement 

invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent 

permissible and the other provisions of this Agreement will remain in full force and effect. 

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EXHIBIT A - Punchh Order Form

Customer: CiCi Enterprises LP. (“Customer”) with corporate headquarters located at the address 1080 West 

Bethel Road, Coppell, TX, 75019. 

Summary Pricing Info: 

Subscription Services Punchh Marketing Automation 

Platform 

Services Activation 

Date 

Professional Services 

Design Private-Label Mobile app; 

design of loyalty program card and 

collateral as well as managed 

services of project implementation 

and ongoing program efficacy and 

user experience 

Payment Terms Net 30 days upon 

receipt of invoice 

Contract term: 

24 months from this initial order and 

subsequent orders from affiliated 

concepts or brands will be 

co-terminus with this initial order 

Purchase Order # 

Subscription Services Details: 

Services: Punchh 

Marketing 

Automation 

Platform & 

Private-label 

Mobile Apps 

(Terms set forth in 

this Order Form 

shall supersede any 

conflicting terms in 

any other 

agreement between 

parties) 

See below for both a one-time set up fee for CiCi’s private label app and subscription monthly 

services. 

Private-label Mobile App Fees:

Private-Label App One-time Setup 

Private Label Mobile App Design and Maintenance Included 

POS Integration (Xpient, Granbury, Datapoint) Included 

CRM & Analytics Integration Included 

One-time setup $ 75,000 

One-time Setup Cost - Optional App Modules 

Third Party Integration for Online Ordering Waived 

Third Party Integration for Mobile Payments* $ 10,000 

iBeacon Installation** $ 7,500 

Surveys $ 10,000 

inMoment Integration TBD 

Gamification (in - house re-skin) $15,000 

3rd Party Gaming Integration $2,000 

*Third Party Integration for Third Party Mobile Payments does not cover the transaction 

fee or additional hardware. 

**Beacon installation does not include physical cost of Beacons @ ~$42 per device 

One Time Set Up Cost for Optional App Modules – Pricing will not change for these 

additional modules for the lifetime of the contract. 

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Monthly Pricing (Per Location Per Month): Monthly subscription fees will be based on the 

Variable Price Schedule below, paid quarterly: 

Monthly Fees Per Locations 

CRM & Analytics Included 

Reviews + Sentiment Analysis Included 

Referrals Included 

Loyalty Included 

Total per Location $55 

Monthly Fee per Location – Optional App Modules 

Mobile Payments Support & Maintenance $ 5 

Data Insights Analyst $ 5 

Mobile Ordering Support & Maintenance $ 5 

Gaming Integration $ 5 

Surveys $ 5 

inMoment Integration TBD 

Beacon $ 5 

The private-label app will include features and integration with Xpient, Granbury, & Datapoint 

POS systems as mutually agreed by both parties in the design phase of the project setup. 

Other Modules & Services not included in this order: Any modules not specifically listed in 

this order form are available as an option to the Customer for commercial terms mutually agreed 

upon by both parties in a signed order form. 

Monthly Invoicing of subscription services will be invoiced in advance of each month upon 

seven (7) days written notice between the parties identifying the total number of Customer 

locations expected to participate in the programs for the month. 

(1): Timing for beginning of payments: 

! Setup fees: The setup fee will be due within 30 days of entering this agreement. 

! Activation date: Punchh and Customer will mutually agree upon an activation date for 

this solution, within 14 days of signing this contract. Customer agrees to (and provide 

permission for Punchh to) activate the solution by the mutually agreed upon activation 

date. 

! Monthly subscription services start date: Customer agrees to start payments for 

monthly subscription services starting on the activation date. The payments will be due 

even if, for any reasons other than readiness of the solution, Customer decides to 

postpone the activation date of the solution. 

POS Integration: Punchh will provide the integration packet, documentation, training, and 

support for POS integration. Customer is required to distribute and install the Punchh-provided 

POS integration. Punchh may provide full distribution and terminal installation services for a 

separate fee. 

Email Campaigns: Campaigns that include email distribution will be distributed through a 

third party provider at cost. 

! We are currently fully integrated with and recommend Sendgrid

Number of 

Locations: 

All current and future locations. Current locations: 457 

We expect all locations to go live & opt-in to additional modules, but if for some reason a significant subset of the 

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EXHIBIT B – SERVICE LEVEL AGREEMENT 

1. Additional Terms. Capitalized terms not defined below will have the meaning ascribed to them in 

the Agreement. Additional terms used in this Service Level Commitment are defined below. References 

herein to days are business days (Monday through Friday excluding federal bank holidays) and references to 

hours during a business day. 

1.1 “Downtime” means any period of time during Service Hours in which any Customer is 

entitled to access but is unable to transmit or receive information from the Services due to a problem with the 

Services. 

1.2 “Monthly Service Hours” means the total of the Service Hours within the Service Month.

1.3 “Problem” means a failure of the Private-Label App to function properly. 

1.4 “Scheduled Downtime” means (i) upgrades of hardware or software to the Punchh 

Software, (ii) upgrades to increase capacity, (iii) daily backups and other daily processing, and (iv) other 

activity to maintain or improve the systems supporting Customer, including any reconfiguration of the 

Services, as requested by Customer, for which Customer has been given forty-eight (48) hours advance 

notice. Downtime will be scheduled during non-peak usage hours except for agreed upon emergencies. 

1.5 “Service Hours” are 24 hours a day, 365 days a year excluding Scheduled Downtime. 

1.6 “Service Level” means a percentage calculated by subtracting the aggregate number of

hours of Service Outage (or fraction thereof) from the Monthly Service Hours (each within a Service Month), 

and dividing the remainder by the Monthly Service Hours in such Service Month. 

1.7 “Service Month” is the period beginning on the first business day of the calendar month and

ending on the last business day of the calendar month. 

1.8 “Service Outage” means any period of Downtime experienced by multiple Users during 

Service Hours, that is not related any of the following: (i) any Content provided by Customer or User; (ii) 

suspension of the Services for performance of illegal activities, spamming, or virus propagation by Customer 

or User; (iii) virus, worm, Trojan horse, or other contaminating or destructive feature contained in any 

Content; (iv) Scheduled Downtime; (v) attacks including, but not limited to, denial of services, viruses and 

hacking that are due to Customer’s policies, actions or negligence.

1.9 “Services” means the access to Punchh’s platform, including hosting and other services 

performed pursuant to the Agreement and related to the Private-Label App. 

1.10 “Support Hours” are 8am – 6pm PST, excluding holidays and any Scheduled Downtime. 

2. Technical Support. Punchh will provide email support services to Customer’s designated support

contact during Support Hours, Monday through Friday excluding Federal Bank holidays. 

3. Response Times. Punchh use best efforts to respond to the problem report according to the severity 

and response times described below. 

Case 1:20-cv-22977-UU Document 17-1 Entered on FLSD Docket 10/01/2020 Page 12 of 16
Severity Level Description Response Times 

Severity 1 Problem that causes a catastrophic failure of 

the Services, or renders the Services 

inoperative by any Customer such that no 

business can be conducted using the Private 

Label App. 

Punchh will begin to investigate 

the Problem within two (2) 

hours of receiving a Problem 

report. Punchh will attempt to 

resolve Problem within 

twenty-four (24) hours of 

receiving a Problem Report. 

Severity 2 Problem that causes the performance of the 

Services to be degraded (such as a loss of 

some functionality where there is a 

workaround), not directly affecting 

Customer’s business, but where all or

substantially all Customers can still use the 

Private-Label App. 

Punchh will begin to investigate 

the Problem within twenty-four 

(24) hours of receiving a 

Problem report. Punchh will 

attempt to resolve Problem 

within one (1) week of receiving 

a Problem Report. 

Severity 3 Problem in which certain elements of 

usability or certain functionality are 

impacted but most operations of the Services 

function normally. 

Punchh will begin to investigate 

the Problem within one (1) 

week of receiving a Problem 

report. Punchh will attempt to 

resolve Problem within a 

mutually agreed upon time 

period. 

4. Availability. The Services will be available 99.9% of the time, per Service Month during the 

Service Hours, excluding any Scheduled Downtime (the “Required Service Level”). 

5. Service Outages. Punchh will monitor the Services and promptly record any Service Outage 

detected and notify Customer based on the Problem severity within the response times set forth below. 

Punchh will make commercially reasonable efforts to resolve each Problem reported under the terms herein 

that is found by Punchh to be due to a defect or error in the Services. If the Problem reported by Customer is 

not due to a problem in the Services, Punchh will so notify Customer. 

6. Service Credit. If the Service Level during any three consecutive Service Months is less than the 

Required Service Level, then Punchh will provide a proportional refund of the next month’s Subscription 

Fees following the one in which such shortfall occurred (a “Service Credit”). If the Service Level has less 

than 93% uptime in any given Service Month, then Punchh shall refund all Subscription Fees for that month. 

Such Service Credits shall be applied only to the month following the month in which the Service Outage 

occurred and; provided, however, that the Service Credits shall not exceed the total of Subscription Fees paid 

by Customer in that month. 

7. Updates and Upgrades. Following delivery of the Private Label App, Punchh shall provide a 

maximum of 3 Updates to the Private Label App upon request of Customer, excluding bug fixes to resolve 

Severity 1 or Severity 2 issues as defined in this Exhibit B. These 3 Updates shall be limited to support 

functionality improvement(s) and incremental operating system compatibility. Any Upgrades are not 

included in the Agreement. Punchh and Customer shall negotiate reasonable commercial terms for any 

Upgrades and/or Updates beyond the 3 provided for in this section. 

Case 1:20-cv-22977-UU Document 17-1 Entered on FLSD Docket 10/01/2020 Page 13 of 16
EXHIBIT C - FUTURE RATE CONFIRMATION 

Assuming the current number of locations (+400) Punchh will extend the current Monthly Subscription Fees 

(as stated in Exhibit A) to future Services Agreements to be executed at the expiration of this contract. 

Case 1:20-cv-22977-UU Document 17-1 Entered on FLSD Docket 10/01/2020 Page 14 of 16