Subscription Agreement
HABIT STORY SUBSCRIPTION AGREEMENT
This Subscription Agreement (“Agreement”), a binding agreement between KJG Technology, Inc. dba Two Story (“Two Story”), and you (“Subscriber”). Two Story and Subscriber are each referred to as a “Party” hereunder and together, as the “Parties.” Subscriber is an organization or distribution partner that uses behavioral assessments to evaluate its personnel and prospective personnel for certain business and character attributes in hiring and/or professional development. Two Story is in the business of, among other things, providing the HABIT STORY Product to its customers on a subscription basis to allow subscribers to review results of a proprietary assessment of certain business and character attributes. Subscriber desires to utilize the HABIT STORY Product as a tool to facilitate the evaluation of personnel and of prospective candidates by Subscriber, its members, and its and their affiliates. The Parties therefore agree as follows:
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. Subscriber’s Confidential Information shall include Subscriber Data. 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 Product registration forms, fee schedules, order forms, or manuals relating to the HABIT STORY Product, Improvements, or support services. “End Users” shall mean individuals who are authorized to use the HABIT STORY Product under this Agreement and under the HABIT STORY Product End User License Agreement and who have been supplied user identifications and passwords by Two Story (or by Subscriber to the extent authorized by Two Story). “HABIT STORY Order” shall mean a written or electronic order of the HABIT STORY Product submitted to Two Story by Subscriber, which shall contain terms relating to the License Fee and the Term and may contain other terms and conditions as may be agreed upon by the Parties. “HABIT STORY Product” 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 Subscriber hereunder, including all copies thereof made by Subscriber or End Users. “HABIT STORY Product End User License Agreement” shall mean Two Story’s standard end user license agreement entered into by End Users as a condition to accessing and using the HABIT STORY Product. “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 Product. “Hosted Service” shall mean such access as Two Story shall provide to Subscriber or to End Users under this Agreement to use the HABIT STORY Product via the Internet. “Improvements” shall mean all customizations, translations, modifications, updates and/or improvements made to the HABIT STORY Product pursuant to this Agreement during the Term. “Licensee Data” shall mean, as applicable, Respondent Data and/or Subscriber Data provided by Subscriber or End Users.
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“Permitted Users” shall mean (1) the Subscriber and its members, and their respective shareholders, directors, members, managers, officers, and employees; (2) any entity of which any of the persons enumerated in clause (1) holds a current or prospective ownership interest along with such entity’s shareholders, directors, members, managers, officers, and employees; and (3) each Respondent; each of which are End Users designated by Subscriber under this Agreement and provided with a unique login identification and password to access the HABIT STORY Product, which is confidential and may not be shared with anyone. For the avoidance of doubt, each Respondent shall be considered a separate licensee notwithstanding the fact that the Respondent is using the HABIT STORY Product at the request of Subscriber and will enter into the HABIT STORY Product End User License Agreement as a condition to using the HABIT STORY Product. “Privacy Policy” shall mean Two Story’s privacy policy relating to the HABIT STORY Product, 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 any End User whose use of the HABIT STORY Product is sponsored by, or that agrees to share its Respondent Data with, Subscriber. “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 Product. ”Subscriber Data” shall mean data and information that is uploaded or inputted by Subscriber and stored on the Hosting Servers for use in connection with the HABIT STORY Product. “System Data” shall mean data collected by Two Story regarding the HABIT STORY Product that may be used to generate logs, statistics and reports regarding the performance, availability, integrity and security of the HABIT STORY Product. System Data shall not include Respondent Data or Subscriber Data. 2. Ownership of the HABIT STORY Product. 2.1 Proprietary Rights. 2.1.1 The HABIT STORY Product is a trade secret of Two Story, its affiliates and/or its licensors, and is their confidential information. The HABIT STORY Product 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, Subscriber owns all right, title and interest in and to the Subscriber Data and Subscriber’s Confidential Information, and Two Story exclusively owns all right, title and interest in and to the HABIT STORY Product, System Data, Two Story’s Confidential Information, and any derivative products created by Two Story.
2.1.3 None of the HABIT STORY Product is being sold. All ownership, license, intellectual property, and other rights and interests in the HABIT STORY Product shall remain solely with Two Story, its affiliates or its licensors. 2.2 Machine Learning. Subscriber acknowledges that Two Story utilizes machine learning for the purpose of providing and improving the HABIT STORY Product and that Two Story will use (during and after the term hereof) Respondent Data to train its algorithms through machine learning techniques and/or manual analysis and adjustments in accordance with the HABIT STORY Product End User License Agreement. 3. HABIT STORY Product License. 3.1 License Grant. 3.1.1 Subject to full payment of the License Fee (if applicable) and the terms and conditions of this Agreement, Two Story hereby grants to Subscriber and the Permitted Users during the Term a limited, non-exclusive, non-transferable license to access and use the HABIT STORY Product for the purpose for which it is made available to Subscriber and the Permitted Users and otherwise in accordance with the terms of this Agreement. Only Subscriber and the Permitted Users will have access to or use of the HABIT STORY Product. All of the Permitted Users will be bound by the terms and conditions of the HABIT STORY Product End User License Agreement. Notwithstanding the foregoing, Subscriber may share reports generated by use of the HABIT STORY Product by Subscriber and the Permitted Users with the members,
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managers, shareholders, directors, officers, employees, representatives, consultants, contractors, or agents of Subscriber, its members, and its and their affiliates and prospective affiliates (each an “Authorized Reviewer”).
3.1.2 The HABIT STORY Product will reside on a Hosting Server and Two Story will provide Subscriber and the Permitted Users with access to those portions of the Hosted Service designated for Subscriber’s and the Permitted Users’ use. Subscriber and the Permitted Users shall be solely responsible for connecting to the Hosting Server (and all third-party fees associated therewith), and Subscriber and the Permitted Users shall be solely responsible for resolving all issues relating to its and their computer systems and/or firewall in conjunction therewith.
3.1.3 Subscriber 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 Subscriber and the Permitted Users via the Internet, Subscriber 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 Subscribers or the Permitted Users’ Internet service provider.
3.1.4 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 Product for periods of time. Two Story will endeavor to (i) conduct such maintenance during off-peak use hours and (ii) advise users of such maintenance in advance. 3.1.5 Subscriber hereby grants to Two Story a non-exclusive license to use, copy, store, modify and
display Subscriber Data solely to the extent necessary to provide the HABIT STORY Product. 3.2 Licensee Data. 3.2.1 Subscriber understands that, under the HABIT STORY Product End User License Agreement, Respondents will provide a license to Two Story to; (a) evaluate the Respondent Data; (b) create reports, charts, spreadsheets, analyses, and other derivative works from the Respondent Data (“Two Story Analyses”); and (c) disclose the Respondent Data and/or any Two Story Analyses derived from the Respondent Data to Subscriber and that Two Story will be permitted to use the Respondent Data to, among other things: (x) improve the efficiency of Two Story’s algorithm or algorithms; (b) demonstrate the fairness of the Two Story Analyses through adverse impact studies and other means; and (c) for commercial purposes as determined in Two Story’s sole discretion and as permitted in the HABIT STORY Product End User License Agreement and the Privacy Policy. Subscriber understands that 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 Product) by emailing data-rights@twostory.com.
3.2.2 At all times Two Story shall use the same standard of care to protect the Licensee Data as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care. At all times Two Story shall handle such information in accordance with this Agreement, the HABIT STORY Product End User License Agreement and the Privacy Policy. 3.3 Subscriber Restrictions. 3.3.1 Except as otherwise expressly permitted under this Agreement, Subscriber shall not (i) publish, reproduce and/or otherwise distribute the HABIT STORY Product (including the data contained in the HABIT STORY Product) 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 Product (including the data contained in the HABIT STORY Product) or any portion thereof to any third party, (iii) copy, modify, translate, reverse engineer, decompile, disassemble the HABIT STORY Product, or create derivative works based on the HABIT STORY Product (including the data contained in the HABIT STORY Product) or Documentation, (iv) create, or attempt to create, archival or derivative works based on the HABIT STORY Product (including the data contained in the HABIT STORY Product) or any portion thereof, (v) attempt to interfere with the access to the HABIT STORY Product or Hosting 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 Product or Hosting Services, (vii) attempt to access or collect data from the HABIT STORY Product using automated means or access data that Subscriber does not have permission to access (for example, the data of other licensees or respondents), (viii) use or attempt to use the HABIT STORY Product for any unlawful purpose or in a manner that is violative of any third party’s rights, and/or (ix) request HABIT STORY Product credentials for, or provide HABIT STORY Product credentials to, individuals that are not Permitted Users.
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3.3.2 Unless otherwise agreed to in writing by Two Story, the HABIT STORY Product shall be used exclusively as permitted in this Agreement. For the avoidance of doubt, Subscriber and the Permitted Users may publish, reproduce and/or otherwise distribute reports generated using the HABIT STORY Product, including the Two Story Analyses, or any components thereof only as provided in this Agreement. For the avoidance of doubt, Subscriber may share any Two Story Analyses with a Respondent who is the subject of such Two Story Analyses and the Respondent shall be considered a licensee for the purpose of this paragraph. In addition, Subscriber may share Two Story Analyses and reports with any employer or prospective employer of an employee or prospective employee to which the Two Story Analyses and reports relate. Subscriber shall take commercially reasonable precautions to prevent access to the HABIT STORY Product or any component thereof by third parties using Subscriber’s access credentials and prevent any unauthorized distribution or redistribution of the HABIT STORY Product using Subscriber’s access credentials.
3.3.3 Two Story may suspend access to the HABIT STORY Product if Two Story (i) reasonably believes that there has been unauthorized access to the HABIT STORY Product or a material violation of the forgoing restrictions, (ii) detects a material security threat to the HABIT STORY Product or Hosting 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 Subscriber of the action taken by Two Story and the reasons therefor; and provided further, that except in cases of Subscriber’s material breach of this Agreement, Two Story will refund the License Fee relating to any portion of the Term during which such suspension applies if such period exceeds three (3) business days in any calendar year. 4. License Fees. Subscriber shall pay to Two Story the license fees specified in the HABIT STORY Order, without setoff or deduction (the “License Fee”) in accordance with the terms of the HABIT STORY Order. The HABIT STORY Product license is conditional upon Subscriber making timely and complete payment to Two Story of all License Fees and applicable taxes. All License Fees and applicable taxes due to Two Story under this Agreement and the HABIT STORY Order shall be payable in US dollars. All applicable taxes shall be borne by Subscriber. If Subscriber’s payment plan as provided in the HABIT STORY Order includes an ongoing subscription that is automatically renewed periodically, Subscriber hereby authorizes Two Story to bill Subscriber’s payment instrument in advance on such periodic basis in accordance with the terms of the applicable Documentation until the expiration or termination of the applicable Documentation, and Subscriber further agrees to pay any and all charges so incurred. Except as otherwise specified in this Agreement or in the HABIT STORY Order, fees paid are non-refundable. 5. Limited Warranties. Two Story warrants to Subscriber that the HABIT STORY Product will perform substantially in accordance with its accompanying documentation during the Term. Two Story’s entire liability, and Subscriber’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 Product giving rise to such breach within a commercially reasonable period of time, failing which Two Story shall refund the License Fees paid to Two Story by Subscriber hereunder which are attributable to the portion of the HABIT STORY Product giving rise to the breach. The warranty in this Section 5 shall not apply to any breach caused by: (a) any change to the HABIT STORY Product, except where such changes were made by Two Story in relation to the provision of maintenance and support services; (b) any telecommunications medium used by Subscriber or Permitted Users; (c) Subscriber’s or Permitted Users’ own computer system; or (d) failure of Subscriber and/or Permitted Users to comply with the Documentation. Two Story does not warrant that the HABIT STORY Product 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 OF EVERY KIND PERTAINING IN ANY WAY TO HABIT STORY PRODUCT 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, REGARDING THE ADEQUACY OF THE HABIT STORY PRODUCT FOR ANY PARTICULAR PURPOSE, OR THE ADEQUACY OF THE HABIT STORY PRODUCT TO PRODUCE ANY PARTICULAR RESULT. TWO STORY IS NOT RESPONSIBLE FOR THE USE BY SUBSCRIBER OR ANY PERMITTED USER OF TWO STORY ANALYSES, INCLUDING ANY DECISIONS MADE BY SUBSCRIBER AFTER RECEIVING THE TWO STORY ANALYSES.
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LIMITATION OF OVERALL TWO STORY LIABILITY. EXCEPT FOR ANY BREACH OF TWO STORY’S OBLIGATIONS RELATING TO CONFIDENTIAL INFORMATION UNDER SECTION 8 AND EXCEPT FOR TWO STORY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, NOTWITHSTANDING ANY AND ALL BREACHES BY TWO STORY OF THIS AGREEMENT (INCLUDING FUNDAMENTAL BREACH), THE TERMINATION BY TWO STORY OF THIS AGREEMENT, OR ANY OBLIGATION THAT TWO STORY MAY HAVE IN CONTRACT, TORT, EQUITY, AT LAW, OR OTHERWISE, IN NO EVENT SHALL TWO STORY BE LIABLE OR OBLIGATED TO SUBSCRIBER OR ANY AUTHORIZED REVIEWER FOR: (A) ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY, OR PUNITIVE DAMAGES; OR (B) ANY LOST SALES, LOST REVENUE, LOST PROFITS, LOST DATA, 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. EXCEPT FOR ANY BREACH OF TWO STORY’S OBLIGATIONS RELATING TO CONFIDENTIAL INFORMATION UNDER SECTION 8 AND EXCEPT FOR TWO STORY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TWO STORY’S TOTAL, CUMULATIVE, AND AGGREGATE LIABILITY AND OBLIGATION TO SUBSCRIBER: (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 OR THE TOTAL AMOUNT OF LICENSE FEES RECEIVED BY TWO STORY FROM SUBSCRIBER UNDER THIS AGREEMENT WITHIN THE TWELVE (12) MONTHS PRECEDING THE DATE OF SUCH CLAIM.
Term and Termination. This Agreement will commence on the date provided in the HABIT STORY Order and will continue until terminated as provided in the HABIT STORY Order or as set forth below. A Party may terminate this Agreement for default if the other Party breaches any provision of this Agreement provided: (i) the non-breaching Party provides the breaching Party with written notice of breach and a thirty (30) day period to cure the breach (“Cure Period”); and (ii) the breaching Party fails to cure each breach by the end of the Cure Period. Any termination of this Agreement shall be without prejudice to each right or remedy which a Party may possess against the other Party under this Agreement, at law, in equity, or otherwise. Subject to the last sentence of this paragraph, upon any termination or expiry of this Agreement: (a) all licenses granted by Two Story herein shall immediately terminate; (b) Subscriber shall immediately cease all use of the HABIT STORY Product; (c) Subscriber must either deliver to Two Story or destroy all originals and copies of Documentation and Two Story Confidential Information in Client’s possession, custody or control; and (d) Two Story shall deliver to Subscriber or destroy all originals and copies of Subscriber Confidential Information in Two Story’s possession, custody or control. Within fifteen (15) days after such termination, one of each Party’s authorized officers must certify in writing to the other Party that all such originals and copies have been so delivered or destroyed. Sections 2, 4, 5, 6, 8, 9, and 10 of this Agreement shall survive any termination of this Agreement. Notwithstanding the foregoing, reports resulting from the use of the HABIT STORY Product 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.
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
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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. 9.1 Indemnification by Subscriber 9.1.1 Subscriber, 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 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 Subscriber Data.
9.1.2 Subscriber shall indemnify and hold harmless each Two Story Indemnified Party 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 arising from the misuse of the HABIT STORY Product by Subscriber or Subscriber’s Permitted Users. During the Term and for two (2) years thereafter, Subscriber shall maintain electronic and/or other records sufficient for Two Story to confirm that Subscriber has complied with this Agreement. 10. Release. Subscriber releases Two Story and it’s affiliates from all claims, demands and damages (both actual and consequential) of every kind and nature, known and uknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes between Subscriber and third parties. 11. Order of Precedence. This Agreement and the HABIT STORY Order contain the complete agreement between Two Story and the persons enumerated in clause (1) of the definition of “Permitted Users” above, and no additional or conflicting terms, including the HABIT STORY Product End User License Agreement, will be binding among such parties (except as expressly incorporated herein or in the HABIT STORY Order). In addition, if this Agreement or the HABIT STORY Order conflicts with any term or condition in the HABIT STORY Product End User License Agreement, then this Agreement and the HABIT STORY Order will control in that order of precedence. 12. Miscellaneous Provisions. Two Story and Subscriber are independent contractors. Neither Two Story nor Subscriber 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 Subscriber, in whole or in part, without Two Story’s prior written consent. All provisions of the United Nations Convention On Contracts For The International Sale of Goods are hereby rejected by the Parties and excluded from this Agreement in their entirety. Subscriber and Two Story 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 Missouri, 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 a Party commences any litigation or proceeding against the other Party related to this Agreement, the prevailing Party shall be entitled to an award of its reasonable attorney’s fees and court costs. Except for payment obligations (including License Fees) or any obligations relating to the protection of or restrictions applicable to the other Party’s confidential information or intellectual property, neither Party shall be liable to the other or be in breach of this Agreement due to any failure or delay in performance of its obligations to the extent the failure or delay arises (and only for the duration that the affected Party is precluded from performing) 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 that Party. 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. Subscriber acknowledges that HABIT STORY Product is subject to U.S., foreign, and
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international export control, import, and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including, but 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”). Subscriber 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 Subscriber 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. Subscriber also specifically agrees not to, directly or indirectly, export, reexport, transfer, or otherwise allow access to or use of HABIT STORY Product 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 Subscriber to obtain any required licenses or other authorizations to export, reexport, transfer, or import HABIT STORY Product. This Agreement, together with the HABIT STORY Order, sets forth the entire agreement between Two Story and Subscriber 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, except that Permitted Users other than Respondents are intended beneficiaries of 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 Subscriber hereunder shall be deemed effective when sent to the address specified on the HABIT STORY Order.
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