End User License Agreement v2

CONSUMER

HABIT STORY END USER LICENSE AGREEMENT v2

This License Agreement (“Agreement”) is a binding agreement between KJG Technology, Inc. dba Two Story (“Two Story”) and you (“End User”, “you”) as the end user of the HABIT STORY Software (as hereinafter defined). KJG Technology, Inc. and End User are each referred to as a “Party” hereunder and together, as the “Parties.”

BY SELECTING “I ACCEPT” BELOW, YOU ARE AGREEING THAT YOUR USE OF THE HABIT STORY SOFTWARE SHALL BE GOVERNED BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT SELECT “I ACCEPT” BELOW AND DO NOT USE THE HABIT STORY SOFTWARE.

Two Story reserves the right to modify this Agreement from time to time upon reasonable notice to you. Your continued use of the HABIT STORY Software after any such modification will constitute acknowledgment and agreement to the Agreement, as amended. Your use of the HABIT STORY Software may be subject to terms and conditions including our fee schedule and privacy policy, available at https://docs.twostory.com/habit-story/v/legal/privacy-policy/.

1. Definitions. As used in this Agreement, the following terms shall have the following meanings when used in initial capital letters:

“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure, including, but not limited to, any personally identifiable information, Documents, copyright, patent, design right, trade secret, or any other proprietary rights notices relating to the HABIT STORY Software. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Documentation” shall mean all documentation provided by Two Story hereunder, including all guides, instructions, HABIT STORY Software registration forms, fee schedules, order forms, or manuals relating to the HABIT STORY Software, Improvements, or support services.

“End Users” shall mean the individual(s) who are authorized to use the HABIT STORY Software under this Agreement and who have been supplied user identifications and passwords by Two Story.

“Improvements” shall mean all customizations, translations, modifications, updates and/or improvements made to the HABIT STORY Software pursuant to this Agreement.

“HABIT STORY Software” shall mean any and all HABIT STORY software as a service products as well as Documentation, Improvements, and any and all derivative works, bug fixes or updates licensed by Two Story to End User hereunder, including all copies thereof made by End User.

“Hosting Server” shall mean any secure server owned by Two Story and/or a reputable third-party hosting service provider and used by Two Story to provide the HABIT STORY Software.

“Hosted Service” shall mean such access as Two Story shall provide to End User under this Agreement to use the HABIT STORY Software via the Internet.

“End User Data” shall mean, as applicable, Respondent Data provided by End User.

“Privacy Policy” shall mean Two Story’s privacy policy relating to the HABIT STORY Software, which is found at https://docs.twostory.com/habit-story/v/legal/privacy-policy, as it may be amended from time to time in accordance with the Privacy Policy.

“Respondent” shall mean the End User that completes part or all of the data assessment provided as part of the HABIT STORY Software.

“Respondent Data” shall mean data and information that is uploaded or inputted by Respondent and stored on the Hosting Servers for use in connection with the HABIT STORY Software.

“System Data” shall mean data collected by Two Story regarding the HABIT STORY Software that may be used to generate logs, statistics and reports regarding the performance, availability, integrity and security of the HABIT STORY Software. System Data shall not include Respondent Data.

2. Ownership of the HABIT STORY Software.

2.1 Proprietary Rights.

2.1.1 The HABIT STORY Software is a trade secret of Two Story, its affiliates and/or its licensors, and is their confidential information. The HABIT STORY Software is protected by United States, and other national and international copyright laws and treaties, as well as other foreign laws and treaties.

2.1.2 As between the parties, End User owns all right, title and interest in and to the End User Data and End User’s Confidential Information, and Two Story exclusively owns all right, title and interest in and to the HABIT STORY Software, System Data, Two Story’s Confidential Information, and any derivative products created by Two Story based on the End User Data.

2.1.3 None of the HABIT STORY Software is being sold. All ownership, license, intellectual property, and other rights and interests in the HABIT STORY Software shall remain solely with Two Story, its affiliates or its licensors. End User agrees to cooperate fully in providing information, completing forms, performing actions and obtaining any necessary signatures or assignments required to enforce Two Story’s rights in the HABIT STORY Software.

2.2 Machine Learning. End User acknowledges that Two Story utilizes machine learning for the purpose of providing and improving the HABIT STORY Software. Notwithstanding anything to the contrary in this Agreement, End User hereby grants Two Story the right to use (during and after the term hereof) Respondent Data to train its algorithms through machine learning techniques and/or manual analysis and adjustments.

3. HABIT STORY Software License.

3.1 License Grant.

3.1.1 Subject to the terms and conditions of this Agreement, Two Story hereby grants to End User a limited, personal, non-exclusive, non-sublicensable, non-transferable license to access and use the HABIT STORY Software for its own purposes. Only End User will have access to or use of the HABIT STORY Software. Each End User shall treat the End User’s unique access credentials to the HABIT STORY Software as confidential and none of the same shall share an End User’s unique access credentials with any party other than the End User.

3.1.2 End User acknowledges and agrees that the license granted pursuant to Section 3.1.1. shall be limited to the access and use of the HABIT STORY Software. Access to any reports or other deliverables generated by the HABIT STORY Software, such access, reports, and other deliverables being provided on a limited, personal, non-exclusive, non-sublicensable, non-transferable basis, are subject to End User’s full payment of the License Fee. End User is bound by the terms and conditions of the licenses described in Section 3.1.1 and 3.1.2.

3.1.3 The HABIT STORY Software will reside on a Hosting Server and Two Story will provide End User with access the Hosted Service. End User shall be solely responsible for connecting to the Hosting Server and for resolving all issues relating to End User’s computer systems and/or firewall in conjunction therewith.

3.1.4 End User understands and agrees that connections to the Internet are subject to unexpected downtime. Because of the foregoing, and also because the Hosted Services are accessed by End User via the Internet, End User agrees and understands that Two Story shall have no responsibility for downtime due to hardware problems or technical problems relating to the Internet, or downtime experienced due to End User’s Internet service provider.

3.1.5 Two Story may conduct scheduled maintenance on the Hosting Servers or the Hosted Services, resulting in unavailability of the Hosted Services and the HABIT STORY Software for periods of time. Two Story will endeavor to (i) conduct such maintenance during off-peak use hours.

3.2 End User Data.

3.2.1 End User warrants that it either owns or has the right to use and license all End User Data as contemplated hereunder, and End User hereby grants to Two Story a perpetual, worldwide, royalty-free, non-exclusive, assignable, and sub-licensable license to use End User Data.

3.2.2 End User hereby grants to Two Story a perpetual, worldwide, royalty-free, non-exclusive, assignable, and sub-licensable license to; (a) evaluate the Respondent Data; and (b) create reports, charts, spreadsheets, analyses, and other derivative works from the Respondent Data (“Two Story Analyses”). Respondent understands that Two Story may use the Respondent Data to, among other things: (x) improve the efficiency of Two Story’s algorithm or algorithms; (y) when applicable, demonstrate the legal and regulatory compliance of the Two Story Analyses through adverse impact studies and other means; and (z) for commercial purposes as determined in Two Story’s sole discretion. Respondent may opt to restrict the commercial use by Two Story of any Respondent Data that identifies or can reasonably be identified to the Respondent (except as authorized by Respondent through the HABIT STORY Software) by emailing [e-mail].

3.2.3 At all times Two Story shall use the same standard of care to protect the End User Data as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care.

3.2.4 To the extent Two Story processes any personal information in the provision of the HABIT STORY Software, the privacy policy at https://docs.twostory.com/habit-story/v/legal/software-agreements/privacy-policy (“Privacy Policy”) (and as the Privacy Policy may be updated by Two Story from time to time) is hereby incorporated by reference and shall apply, and the parties agree to comply with the terms of the Privacy Policy.

3.3 End User and Restrictions.

3.3.1 Except as otherwise expressly permitted under this Agreement, End User shall not (i) publish, reproduce and/or otherwise distribute the HABIT STORY Software (including the data contained in the HABIT STORY Software) or any components thereof in any manner (including but not limited to as part of any Internet site), (ii) rent, lease, transfer or otherwise provide access to the HABIT STORY Software (including the data contained in the HABIT STORY Software) or any portion thereof to any third party, (iii) copy, modify, translate, reverse engineer, decompile, disassemble the HABIT STORY Software, or create derivative works based on the HABIT STORY Software (including the data contained in the HABIT STORY Software) or Documentation, (iv) create, or attempt to create, archival or derivative works based on the HABIT STORY Software (including the data contained in the HABIT STORY Software) or any portion thereof, (v) attempt to interfere with the access to the HABIT STORY Software or Hosted Services by others, (vi) attempt to upload viruses or malicious code, or do anything that could disable, overburden, or impair the proper working or appearance of the HABIT STORY Software or Hosted Services, (vii) attempt to access or collect data from the HABIT STORY Software using automated means or access data that End User does not have permission to access (for example, the data of other end users), (viii) use or attempt to use the HABIT STORY Software for any unlawful purpose or in a manner that is violative of any third party’s rights, and/or (ix) request HABIT STORY Software credentials for, or provide HABIT STORY Software credentials to, individuals not employed by End User or individuals that do not have a legitimate business need to access the HABIT STORY Software.

3.3.2 End User shall take all precautions that are reasonably necessary and within its control to prevent access to the HABIT STORY Software or any component thereof by third party using End User’s access credentials and prevent any unauthorized distribution or redistribution of the HABIT STORY Software using End User’s access credentials.

3.3.3 Two Story may suspend access to the HABIT STORY Software if Two Story (i)reasonably believes that there has been unauthorized access to the HABIT STORY Software or a violation of the forgoing restrictions, (ii) detects a security threat to the HABIT STORY Software or Hosted Service, or (iii) otherwise reasonably believes that there is activity that poses a threat to the intellectual property of Two Story or the rights of other Two Story licensees; provided, however, that in such circumstances, Two Story shall immediately notify End User of the action taken by Two Story and the reasons therefore.

3.3.4 End User shall not copy, modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on Two Story’s Confidential Information.

4. License Fees. End User shall pay to Two Story the license fee specified on the website, without setoff or deduction (the “License Fee”). The HABIT STORY Software licenses described in this Agreement is conditional upon End User completing payment to Two Story, of all License Fees and applicable taxes. All License Fees and applicable taxes shall be payable in US dollars.

5. Limited Warranties. Two Story warrants to End User that the HABIT STORY Software delivered to End User under this Agreement will perform substantially in accordance with its accompanying documentation. Two Story’s entire liability, and End User’s sole remedy against Two Story, for each breach by Two Story of the warranty contained herein shall be limited to requiring Two Story to correct or work around the portion of the HABIT STORY Software giving rise to such breach within a commercially reasonable period of time.

The warranty in this Section 5 shall not apply to any breach caused by: (a) any change to the HABIT STORY Software, except where such changes were made by Two Story in relation to the provision of maintenance and support services; (e) any telecommunications medium used by End User; (f) End User’s own computer system; or (g) failure of End User and/or user to comply with the Documentation. Two Story does not warrant that the HABIT STORY Software is error-free or will operate without interruption.

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN THIS SECTION 5, TWO STORY AND ITS LICENSORS DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES AND CONDITIONS OF EVERY KIND PERTAINING IN ANY WAY TO THE MEDIA OR HABIT STORY SOFTWARE LICENSED BY TWO STORY UNDER THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW, USAGE OF TRADE, COURSE OF DEALING, CUSTOM, OR OTHERWISE. NEITHER TWO STORY NOR ITS LICENSORS, MAKE ANY REPRESENTATION, NOR PROVIDE ANY WARRANTY OR CONDITION, REGARDING THE ADEQUACY OF THE HABIT STORY SOFTWARE FOR ANY PARTICULAR PURPOSE, OR THE ADEQUACY OF THE HABIT STORY SOFTWARE TO PRODUCE ANY PARTICULAR RESULT. TWO STORY IS NOT RESPONSIBLE FOR THE USE BY ANY END USER OF TWO STORY ANALYSES. Some jurisdictions do not allow the exclusion of certain implied warranties, limitations on how long an implied warranty may last, or the exclusion or limitation of incidental, consequential, or special damages. If any jurisdiction having applicability to this Agreement does not permit any such exclusion or limitation: (a) each warranty which cannot be excluded shall be limited in time to sixty (60) days from the date of first delivery of the HABIT STORY Software; and (b) Two Story’s total liability to End User for breach of any or all such warranties shall be limited to the amount stated in Section 6 of this Agreement.

6. LIMITATION OF OVERALL TWO STORY LIABILITY. IN NO EVENT SHALL TWO STORY BE LIABLE OR OBLIGATED TO END USER FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR (B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOST DATA, LOST SALARY, LOST WAGES OR OTHER INCOME, OR REPROCUREMENT AMOUNT; EVEN IF TWO STORY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES ARISING AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY CONTAINED HEREIN.

TWO STORY’S TOTAL, CUMULATIVE, AND AGGREGATE LIABILITY AND OBLIGATION TO END USER: (A) ARISING UNDER THE PROVISIONS OF THIS AGREEMENT; (B) FOR ANY AND ALL BREACHES BY TWO STORY OF THIS AGREEMENT (INCLUDING FUNDAMENTAL BREACH) OR THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY CONTAINED HEREIN; (C) FOR ANY TERMINATION BY TWO STORY OF THIS AGREEMENT; OR (D) FOR ANY OTHER ACT, OMISSION, OR EVENT RELATED IN ANY WAY TO THIS AGREEMENT; SHALL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS.

7. Term and Termination. This Agreement will commence on the date hereof and will continue until terminated as provided in the Documentation or as set forth below (“Term”). Two Story may terminate this Agreement for any reason following ten (10) days prior written notice. Any termination of this Agreement shall be without prejudice to each right or remedy which the Two Story may possess against End User under this Agreement, at law, in equity, or otherwise.

Subject to the last sentence of this paragraph, upon any termination or expiration of this Agreement: (a) all licenses granted by Two Story herein shall immediately terminate; (b) End User shall immediately cease all use of the HABIT STORY Software; and (c) End User must either deliver to Two Story or destroy all originals and copies of HABIT STORY Software, Documentation and Two Story Confidential Information in End User’s possession, custody or control. Within fifteen (15) days after such termination, End User must certify in writing to Two Story that all such originals and copies have been so delivered or destroyed. Sections 2, 4, 5, 6, 7, 8, 9, 10, and 11 of this Agreement shall survive any termination of this Agreement. Notwithstanding the foregoing, reports resulting from the use of the HABIT STORY Software will not be required to be destroyed or returned to Two Story by any person possessing the reports at the time of termination as authorized under this Agreement.

8. Confidentiality. Each Party shall use the other Party’s Confidential Information solely to exercise the Party’s rights or perform its obligations under this Agreement and shall protect the other Party’s Confidential Information from unauthorized use and disclosure using the same degree of care that it uses with respect to its own information of like importance, but no less than a reasonable degree of care. The Party receiving Confidential Information (the “Receiving Party) shall retain the Confidential Information in confidence and shall not disclose Confidential Information to any third party without prior written consent of the Party disclosing the Confidential Information (the “Disclosing Party”). However, the Receiving Party may disclose the Confidential Information to employees, contractors, consultants, and authorized representatives of the Receiving Party who (1) require access to the information to exercise the Party’s rights or perform its obligations under this Agreement, (2) are informed by the Receiving Party of the Receiving Party’s obligations under this Section, and (3) are bound by contract or fiduciary duty to obligations of confidentiality and use restrictions with substantially similar function, purpose, scope, and effect to those of this Section and that are at least as protective of the Confidential Information as this Section. The Receiving Party will be responsible for the breach of this Section (or of such contract or fiduciary duties) by these parties. Notwithstanding the foregoing, a Party may disclose the Confidential Information pursuant to applicable law, regulation or a valid order issued by a court or Governmental Authority of competent jurisdiction, but only after providing written notice to the other Party of its intention to disclose the Confidential Information and providing ten (10) calendar days for to other Party to seek to quash or challenge the obligation to disclose the Confidential Information. If, during the aforementioned ten (10) day period, the other Party commences such legal action as may be necessary to challenge the obligation to disclose the Confidential Information, then the notifying Party shall not disclose the Confidential Information while such challenge is pending.

9. Indemnification by End User. End User at its expense, will defend, indemnify, and hold Two Story and its directors, officers, members, employees, agents, and representatives (each, an “Two Story Indemnified Party”) harmless from and against any and all damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, against the Two Story Indemnified Party (a) which directly relate to a claim, action, suit, or proceeding made or brought against the Two Story Indemnified Party by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark by way of Two Story’s use of the Licensee Data or (b) arising from End User’s breach of this Agreement and/or the misuse of the HABIT STORY Software by End User.

10. Miscellaneous Provisions. Two Story and End User are independent of the other. Neither Two Story nor End User shall have any authority to bind the other in any manner. This Agreement may be assigned by Two Story to an affiliate of Two Story or to a successor-in-interest/title of Two Story without consent. This Agreement shall not be assigned by End User, in whole or in part, without Two Story’s prior written consent. The Parties agree that the Uniform Computer Information Transactions Act, or any version thereof, adopted by any state located in the United States, in any form (“UCITA”) shall not apply to this Agreement. To the extent that UCITA is applicable, the Parties agree to opt out of the applicability of UCITA pursuant to the opt-out provisions contained therein. This Agreement shall be governed by the laws of the State of Delaware, excluding its conflicts or choice of law rules. For all disputes arising from this Agreement the Parties submit to the exclusive jurisdiction and venue of the courts of the State of Missouri. If Two Story commences any litigation or proceeding against any other Party related to this Agreement, Two Story shall be entitled to an award of its reasonable attorney’s fees and court costs. Two Story shall not be liable to End User or be in breach of this Agreement due to any failure or delay in performance of Two Story’s obligations to the extent the failure or delay arises as a result of acts of God, fire, global or national pandemics, disaster, explosion, vandalism, storm, adverse weather conditions, strikes, labor disputes or disruptions, epidemics, wars, national emergencies, riots, civil disturbances, shortages of materials, actions or inactions of government authorities, terrorist acts, lockout, work stoppages or other labor difficulties, border delays, failures or interruptions of utilities or telecommunications equipment or services, system failures or any other cause that is beyond the reasonable control of Two Story. Should any provision of this Agreement be deemed contrary to applicable law or unenforceable by any court of competent jurisdiction, the provision shall be considered severed from this Agreement but all remaining provisions shall continue in full force. End User acknowledges that HABIT STORY Software is subject to U.S., foreign, and international export control, import, and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, which may include, but is not limited to, the U.S. Export Administration Regulations (“EAR”) and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). End User represents and warrants that it is eligible to receive exports from the United States and that it is not designated on any of the various U.S. government lists of sanctioned/denied parties, nor is End User (if End User is not an individual) 50% or more directly or indirectly owned, in the aggregate, by one or more individuals or entities identified on any of the U.S. government sanctioned/denied parties lists. End User also specifically agrees not to, directly or indirectly, export, reexport, transfer, or otherwise allow access to or use of HABIT STORY Software to, in, by, or for any country/region subject to U.S. embargo or sanctions, any U.S. sanctioned or denied person or entity, or any prohibited end-use under U.S. law without authorization from the U.S. government. It is the sole responsibility of End User to obtain any required licenses or other authorizations to export, reexport, transfer, or import HABIT STORY Software. This Agreement, together with any Documentation, sets forth the entire agreement between Two Story and End User with respect to the subject matter hereof, and supersedes all prior related oral and written agreements and understandings between the Parties. Neither Party is bound by or is liable for any alleged representation, promise, or inducement not expressly stated in this Agreement. No term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person or entity who is not a Party to this Agreement. The Parties acknowledge and agree that each has had an opportunity for legal review of all terms of this Agreement. The Parties therefore agree that, in interpreting any issues which may arise, any rules of construction related to who prepared the Agreement shall be inapplicable, each Party having contributed or having had the opportunity to clarify any issue. In addition, the headings used in this Agreement are for convenience only and do not in any way limit or otherwise affect the meaning of any terms of this Agreement. Notice to Two Story hereunder must be given in writing to the address below and is deemed effective when sent via Federal Express or other commercial courier. Notice to End User hereunder shall be deemed effective when sent to the address specified on your registration form.