Revision 1.1: Updated ‘Note Taking Express Inc.’ and all related abbreviations to ‘Habitat Learn Inc.’ or ‘Habitat Learn’ (Jul 5th, 2021)
This Institution Subscription Agreement (“Agreement”) is entered into as of the date this Agreement is fully executed (“Effective Date”) by and between Habitat Learn Inc. (“Company”) and the educational institution or entity identified below (“Customer”), and sets forth the terms and conditions pursuant to which Habitat Learn will provide Customer access to the Service.
In consideration of the mutual promises and upon the terms and conditions set forth below, the parties agree as follows:
1.1. "Authorized User" means an individual who is authorized by Customer to access and use the Service during a given academic term and who is either: (a) currently enrolled as a full time or part time student of Customer, (b) a member of the staff or faculty of the Customer, or (c) Customer's service provider who has a bona fide need to access the Service to perform services for Customer.
1.2. "Customer Data" means any information, recordings, content, written works, or other materials provided by Customer or an Authorized User to Company via the Services.
1.3. "Service" means Habitat Learn's NTEHub note taking and management solution and related services, as indicated on a Confirmation.
Access to Service.
2.1. Grant. Subject to Customer's full and ongoing compliance with the terms of this Agreement, Company hereby authorizes Company to access and use the Service, and to authorize Authorized Users to access and use the Service subject to the terms of this Agreement. Customer shall not allow access to the Service by any person other than an Authorized User.
2.2. Reservation of Rights. Customer acknowledges that it is only granted access to the Service during the Term in accordance with Section 2.1 and agrees that it shall not use the Service except as permitted under Section 2.1. Customer acknowledges that Company retains title to the Service. Company hereby reserves all rights to the Service or any copyrights, patents, trademarks or other intellectual property rights embodied or used in connection therewith, except for the rights expressly granted herein.
2.3. Additional Restrictions. Customer shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) transfer, distribute, sell, lease, license or sublicense access to the Service; (b) attempt to decompile, disassemble, or reverse engineer the Service, in whole or in part; (c) allow access to the Service by any person other than an Authorized User; (d) write or develop any derivative software or any other software program based upon the Service or Company's Confidential Information; (e) use the Service to provide processing services to third parties, or otherwise use the Service on a 'service bureau' basis; or (f) provide, disclose, divulge or make available to, or permit use of the Service by any third party without Company's prior written consent.
2.4. Accounts. Customer may provision Authorized Users with accounts through which Authorized Users may access the Service or manage other Customer-controlled accounts and their permissions (each an "Account"). Customer is responsible for safeguarding and maintaining the confidentiality of its Accounts and associated login credentials and remains responsible for any and all activities conducted on its Accounts. Customer agrees to promptly notify Company in the event it believes that any of its Accounts are no longer secure. Company reserves the right to immediately suspend any or all Authorized Users' access to the Service if Company believes, in its sole discretion, that an Authorized User has misused the Service. Each Service account login provided to an Authorized User is personal to that specific individual and may not be transferred, sold or otherwise assigned to or shared with any other individual or entity.
2.5. Support. Company may provide support to Customer in accordance with its standard practices and during its standard support hours via email and live chat and may, on a case by case basis, agree to provide support to Customer via phone.
2.6. Feedback. From time to time, Customer may provide to Company feedback, suggestions or comments related to the Service (collectively, "Feedback"). Customer hereby grants Company a worldwide, perpetual, irrevocable, fully paid-up, royalty free, transferrable and sublicensable to use, modify or otherwise exploit such Feedback to improve Company's products or services.
Customer Data; Storage.
3.1. Customer Data. Customer hereby grants to Company a worldwide, nonexclusive, nontransferable, license to use, store, prepare derivative works of, or modify the Customer Data in connection with the provision of the Service to Customer and Authorized Users. Customer warrants that the transfer of Customer Data to Company, and Company's use or modification thereof as contemplated hereunder shall not violate any applicable law or regulation, or the rights of any third party. In the event this Agreement is terminated, then upon Customer's request, Company shall make available to Customer a copy of any Customer Data in Company's possession within 30 days of termination.
3.2. Storage. In the event that the size of Customer Data exceeds the maximum size indicated on Company's website, Customer shall pay Company storage fees for such excess storage at Company's then-current rates ("Storage Fees"). Company shall use commercially reasonable efforts to safeguard Customer Data, provided, however, that Company shall not be liable for the deletion, destruction, damage, or loss of, or unauthorized access to any Customer Data.
Note Taking Services. Upon an Authorized User's request, Company may provide summaries of recordings submitted by such Authorized User through the Service ("Note Taking Services"). For clarity, such recordings shall be considered Customer Data. Except as otherwise specified in an order, Company will provide the Note Taking Services at Company's then-current rates. Company will use commercially reasonable efforts to perform the Note Taking Services within the specified turn-around time indicated on the Confirmation, calculated from the date Company receives the applicable recordings in a format reasonably requested by Company, provided, however, that Company shall not be responsible for any delays caused by issues with the provided recording that render the recording unplayable or unintelligible to the average listener. Upon delivery of the summaries, Company hereby assigns (and will assign) all of its right, title, and interest in and to such summaries. The summaries shall be deemed to be Customer Data upon delivery. Customer acknowledges that Company provides these summaries "as-is" and makes no warranties regarding the summaries or their accuracy or efficacy.
Purchase Orders and Confirmation.
5.1. Customer may issue a purchase order or other ordering document requesting Services ("Purchase Order"). Customer shall provide to Company information requested by Company in connection with that Purchase Order (e.g., desired turnaround times, order volumes, etc.). After Company's receipt of the Purchase Order and all information requested by Company, Company will issue an order confirmation summarizing the Services Company offers Customer as a result of Customer's Purchase Order, if any ("Confirmation"). Customer will, within 5 days of its receipt of the Confirmation, either accept or reject that Confirmation in writing (email is sufficient). Confirmations not accepted or rejected within that period will be deemed accepted. If Customer accepts a Confirmation, then subject to Section 5.3, that Confirmation will be binding on the parties.
5.2. Company, as a courtesy to Customer, on a case-by-case basis in its sole discretion, and in all cases subject to Section 5.3, may use Customer's Purchase Order in place of issuing a separate Confirmation, in which case references to the Confirmation shall instead be deemed to refer to such Purchase Order.
5.3. Despite anything to the contrary, and regardless of whether Company has opted to use Customer's Purchase Order in lieu of a Confirmation, Company expressly rejects any terms and conditions contained, attached, included, or referenced within or provided with any Purchase Order, whether or not conflicting with the terms of this Agreement, and any such terms and conditions shall have no effect.
Fees and Payment.
6.1. Usage Based Fees. Certain features of the Service, including Note Taking Services, may be subject to additional fees, as indicted on a Confirmation ("Usage-based Fees"). Customer shall be responsible for the payment of any Usage-based Fees incurred by Customer or an Authorized User. Without limiting the foregoing, Customer may manage the use of such features by Authorized Users, including by limiting an Authorized User's ability to access or use such features.
6.2. Subscription Fees. In consideration of the access granted pursuant to Section 2.1, Customer shall pay Company the subscription fees indicated on the Confirmation ("Subscription Fees").
6.3. Invoices and Payment. Company shall invoice Customer for all fees incurred by Customer in connection with the Services, including Subscription Fees, Storage Fees, and Usage-based Fees monthly in arrears. In the event Customer, in good faith, disputes the accuracy of an invoiced amount, Customer shall notify Company in writing within 15 days of receipt of the invoice stating the reasons why Customer believes the disputed amount is incorrect, along with supporting documentation. Customer shall pay any amounts not disputed in accordance with the preceding sentence within [60 days] of receipt of the applicable invoice. Any overdue amounts will be subject to interest of the lesser of 1.5% per month and the maximum amount allowed under applicable law.
Pricing Updates. Company may update its pricing for any portion of the Service upon 30 days' notice to Customer, provided, however, that, with respect to any changes to Subscription Fees, such updated pricing shall be effective at the beginning of the following Renewal Term.
Taxes. All charges and fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse Company for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of Company).
Limited Warranty; Limitation of Liability.
7.1. Mutual Warranties. Each party represents and warrants that: (i) it has the organizational right, power and authority to enter into this Agreement and to fully perform all of its obligations hereunder, (ii) the entering into this Agreement does not violate any other agreement existing between such party and any third party, and (iii) it will comply with all applicable law and regulation in connection with the performance of its obligations under this Agreement.
7.2. Company Warranties. Company warrants that the Service will perform materially in accordance with the applicable documentation for the Service.
7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE SERVICES, OR THE NOTE TAKING SERVICES, OR ANY PORTION THEREOF WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND COMPANY DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND THAT COMPANY IS NOT RESPONSIBLE FOR CUSTOMER’S OR ITS AUTHORIZED USERS’ USE OF THE SERVICES, AND THAT CUSTOMER AND ITS AUTHORIZED USERS DO SO AT THEIR OWN RISK.
7.4. Limitation of Liability. . TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. COMPANY’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT FOR DAMAGES WILL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE EVENTS GIVING RISE OT THE CLAIM.
Indemnification by Company.
8.1. Indemnity. Company hereby agrees to indemnify, defend, and hold harmless Customer from and against any actual or threatened third party claims alleging that the Service infringes or misappropriates such third party's intellectual property rights, except to the extent such claim is based on: (a) Customer's or an Authorized User's use of the Service in violation of the terms of this Agreement, (b) the combination of the Service with any other materials or technology, or (c) modifications to the Service not made by or at the direction of Company. The foregoing obligation is contingent upon Customer: (i) promptly notifying Company of the claim, (ii) granting Company full and complete control over the defense and settlement of the claim, and (iii) assisting Company with the defense and settlement of the claim as Company may reasonably request. The foregoing is Customer's sole and exclusive remedy, and Company's sole and exclusive liability for the actual or alleged infringement or misappropriation of a third-party intellectual property right by the Service.
8.2. Options. In the event any such infringement, claim, action or allegation is brought or threatened, Company may, at its sole option and expense: (a) procure for Customer the right to continue use of the Service or infringing part thereof; or (b) modify or amend the Service or infringing part thereof, or replace the Service or infringing part thereof with other software having substantially the same or better capabilities; or, (c) if neither of the foregoing is commercially practicable, terminate this Agreement and repay to Customer a pro rata portion, if any, of any pre-paid subscription fees. Company and Customer will then be released from any further obligation to the other under this Agreement, except for the obligations of indemnification provided for above and such other obligations that survive termination.
8.3. Indemnification by Customer. Solely to the extent permitted under applicable law, Customer hereby agrees to indemnify, defend and hold harmless, Company from and against any and all third party claims arising out of or related to: (a) Customer's breach of this Agreement; (b) Customer's use of the Service; and (c) an Authorized User's use of the Service.
9.1. Confidentiality**.** Customer or an Authorized User may, from time to time, receive or have access to information about Company, the Service, product plans, promotions, pricing information, or other technical or non-technical information which Company considers to be confidential, including the terms of this Agreement ("Confidential Information"). To the fullest extent permitted by law, Customer agrees not to, and shall require Authorized Users not to: (a) disclose Confidential Information to any third party, except as strictly necessary to perform its obligations or exercise any of its rights under this Agreement, or (b) use any Confidential Information except as expressly permitted by the terms of this Agreement. The foregoing obligation shall not apply to any information which is (i) already known to Customer or Authorized User prior to receipt or exposure, (ii) is or becomes publicly available or generally known through no wrongful action of Customer or Authorized User, (iii) is rightfully obtained from a third party without a duty of confidentiality, or (iv) is independently developed by Customer or Authorized User prior to or independent of the disclosure.
9.2. Destruction of Confidential Information. Upon termination or expiration of this Agreement, Customer shall, and require each Authorized User to, promptly destroy any copies of Confidential Information remaining in its possession.
9.3. Authorized User Information. To the fullest extent permitted by law, Company agrees not to disclose any Customer Data or other information related to an Authorized User (including such Authorized User's personal information) to any third party or use any such information other than in connection with Company's exercise of its rights and performance of its obligations hereunder. Company will follow Customer's reasonable written policies governing the disclosure of personal information about an Authorized User provided by Customer to Company in advance. Other than with respect to personal information about an Authorized User, the obligations in this Section shall not apply to any information which is (i) already known to Company prior to receipt, (ii) is or becomes publicly available or generally known through no wrongful action of Company, (iii) is rightfully obtained from a third party without a duty of confidentiality, or (iv) is independently developed by Company prior to or independent of the disclosure.
Term and Termination.
10.1. Term. Except as otherwise indicated on a Confirmation, this Agreement will take effect on the Effective Date and will remain in force for one year, and will automatically renew for successive one year periods unless either party notifies the other of its intent not to renew at least 60 days prior to expiration of the then-current term ("Term").
10.2. Termination for Cause. Either party may terminate this Agreement in the event the other party materially breaches the terms of this Agreement and fails to cure such breach within 30 days of receiving notice thereof.
10.3. Effect of Termination and Survival. Immediately upon expiration or termination of this Agreement for any reason whatsoever, Customer will cease all access to and use of the Service, and shall use commercially reasonable efforts to ensure that Authorized Users do the same. Sections 2.2, 2.6, 3.1, 5, 7.3, 7.4, 7, 8.3, 9, 10.3, and 11 shall survive any termination or expiration of this Agreement.
11.1. Assignment. This Agreement or any of the rights and obligations under it may not be assigned by Customer without obtaining the prior written consent of Company, such consent shall not unreasonably be withheld or delayed. In any permitted assignment by Customer, the Customer shall procure and ensure that the assignee shall assume all rights and obligations of Customer under this Agreement and agrees to be bound to all the terms of this Agreement. Any assignment in violation of this Section shall be null and void.
11.2. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth beneath the signatures below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
11.3. Force Majeure. Except for a party's payment obligations, Except for a party's payment obligations, either party's failure to perform any term or condition of this Agreement as a result of circumstances beyond the control of the relevant party (including without limitation, war, strikes, flood, governmental restrictions, and power, telecommunications or Internet failures or damages to or destruction of any network facilities ("Force Majeure") shall not be deemed to be, or to give rise to, a breach of this Agreement.
11.4. Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
11.5. Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
11.6. Integration. This Agreement and any Confirmations issued and agreed to hereunder constitute the entire agreement between the parties and supersedes and extinguishes all previous prior and contemporaneous written and oral communications regarding the subject matter hereof, and may not be altered, modified, or amended except by a written amendment executed by both parties
11.7. Purchase Orders. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the Service will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Company to object to such terms, provisions or conditions.
11.8. Interpretation. Each of the parties has participated in the drafting and negotiation of this Agreement, and the parties agree that they have each had the opportunity to consult counsel in connection with the same. If an ambiguity or question of intent or interpretation arises, no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any provision of this Agreement.
11.9. Publicity. Customer acknowledges that Company may desire to use its name in press releases, product brochures and financial reports indicating that Customer is a customer of Company, and Customer agrees that Company may use its name in such a manner, subject to Customer's consent, which consent will not be unreasonably withheld, delayed or conditioned.
11.10. Counterparts. This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.
11.11. Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of New York without regard to its conflicts of law provisions, unless Customer is a public institution of higher education, then the law of the state in which Customer's main campus is located (the "Governing Jurisdiction") shall apply instead. The parties agree that any legal action or proceeding under, arising out of, or related to this Agreement shall be brought exclusively in the state or federal courts located in the Governing Jurisdiction, and each party hereby irrevocably consents to the jurisdiction of such courts.
The parties have executed this Agreement below to indicate their acceptance of its terms.
|Habitat Learn, Inc.|
|Address for Notice:
228 Park Ave S
New York, New York 10003-1502 US
|Address for Notice: