Habitu8 General Terms and Conditions

This Habitu8 General Terms and Conditions (this “Agreement”) is by and between Habitu8, Inc., a Delaware corporation (“Licensor”) and the entity identified on the applicable order form attached hereto (“Licensee”) (individually a “party” and collectively the “parties").

WHEREAS, Licensor is the developer and owner of certain video content relating to computer security and

WHEREAS, Licensee wishes to use Licensor's content and related materials for its internal business purposes in conformance with the terms of this Agreement;

NOW, THEREFORE, the parties agree as follows:

1. Definitions

1.1      “Licensed Users” means the Licensee employees, agents, subcontractors and consultants permitted to access and/or view the Product, up to the number of individuals specified in the Order Form.

1.2      “Licensor Trademarks” means the trademarks, trade names, service marks, logotypes, or brand identifiers of Licensor.

1.3      “Product” means the Licensor-owned video content and related materials identified in the order form, purchase order or other ordering document issued by Habitu8 that is attached to this Agreement and incorporated by reference (the “Order Form”), as may be amended by the parties.

2. License

2.1      License Grant. Subject to the terms and conditions of this Agreement, Licensor grants to Licensee during the Term:

(a)       a non-exclusive, worldwide license to use, reproduce, distribute, display and transmit the Product in electronic form via the Internet and third party networks (including, without limitation, telephone and wireless networks) solely for Licensee’s internal business purposes; and

(b)      a right to modify the Product, which shall be limited to modifications reasonably necessary to conform the Product to Licensee’s business format and standards, subject to the trademark usage requirements of Section 2.3.

2.2      License Restrictions. Licensee may not (i) rent, lease, sell, assign or otherwise transfer rights in or to the Product; (ii) use the Product for timesharing or service bureau purposes or for any purpose other than for its own internal business purposes; or (iii) publish, distribute, or make available the Product to any party other than a Licensed User.

2.3      Trademark Usage. Licensor hereby grants Licensee a limited, non-exclusive, royalty-free license to Licensor Trademarks during the Term. Such license is granted solely in connection with Licensee's rights and obligations under this Agreement. All uses of Licensor Trademarks will comply with any written trademark guidelines that Licensor may provide to Licensee from time to time. Licensee is prohibited from removing or altering any Licensor Trademarks displayed with or in the Product except with Licensor’s written consent. Licensee agrees that it will not in any way suggest or imply by the use of Licensor Trademarks that Licensee is affiliated with or endorsed or sponsored by Licensor.

3. Product

3.1      Product Ownership. Licensee acknowledges and agrees that:

(a)       as between Licensor and Licensee, Licensor owns all right, title and interest in the Product (including all derivative works thereof) and the Licensor Trademarks;

(b)      nothing in this Agreement shall confer to Licensee any right of ownership in the Product or the Licensor Trademarks; and

(c)       Licensee shall not now or in the future contest the validity of the Licensor Trademarks.

3.2      Product Delivery. Licensor shall deliver the Product to Licensee in accordance with the delivery terms set forth in the Order Form. Licensor shall provide Licensee with reasonable prior notice of any significant enhancements that generally affect the content, format or other features of the Product and shall make such enhancements available to Licensee upon request.

3.3      Product Security and Breach Notifications. Product Licensee shall ensure that the Product is protected from any access, use or disclosure by any third parties and agrees to implement appropriate physical, administrative and technical safeguards for that purpose. If Licensee becomes aware of an actual or potential breach of this Section 3.3 or the license restrictions of Section 2.2, Licensee shall immediately notify Licensor by phone and in writing. Licensor shall have the right to take any and all actions it determines appropriate in its reasonable discretion to mitigate any damages caused or threatened to be caused by Licensee’s breach of this Section 3.3 or Section 2.2, including but not limited to blocking Licensee’s access to the Product, deleting any Product that may have been posted or distributed by Licensee, and terminating this Agreement without liability to Licensee.

4. Payment and Reporting

4.1      License Fees. In consideration for the rights granted to the Product, Licensee hereby agrees to pay Licensor the amounts set forth in the Order Form (the “License Fees”). All License Fees shall be due thirty (30) days after receipt of Licensor's invoice.

4.2      Taxes. Licensee is responsible for paying any and all applicable sales taxes, use taxes, value added taxes, customs and duties imposed by any jurisdiction on any License Fees or with respect to use of the Product.

5. Term and Termination

5.1      Initial Term and Renewals.

(a)       Initial Term. This Agreement will be effective for an initial term, commencing on the License Start Date specified in the Order Form and continuing for the term specified in the Order Form (the “Initial Term”).

(b)      Renewal Term. After the Initial Term, this Agreement will automatically renew for successive additional one (1) year periods (each period, a “Renewal Term”), unless terminated by either party by giving notice to the other party not less than sixty (60) days prior to the end of a Term. “Term” means the Initial Term and any Renewal Term(s).

5.2      Termination for Cause. This Agreement may be terminated by either party upon written notice if the other party: (a) becomes insolvent; (b) files a petition in bankruptcy; (c) makes an assignment for the benefit of its creditors; or (d) breaches any of its obligations under this Agreement in any material respect, which breach is not remedied within thirty (30) days following written notice to such party.

5.3      Effect of Termination. Any termination shall be without any liability or obligation of the terminating party, other than with respect to any breach of this Agreement prior to termination. The provisions relating to property rights and confidentiality shall survive any termination or expiration of this Agreement. Upon termination or expiration of this Agreement for any reason, Licensee shall promptly and permanently erase or destroy any Product that is on Licensee’s computer systems or otherwise in Licensee’s possession or under Licensee’s control.

6. Representation and Warranties

Each party represents and warrants to the other party that (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and (d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party.

7. Confidentiality

7.1      Confidential Information. The parties acknowledge that each of them may have access to confidential and proprietary information relating to the other party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (the “Confidential Information”). The Confidential Information of Licensor includes the Product. Each party agrees to preserve and protect the confidentiality of the Confidential Information of the other party, not to disclose such Confidential Information to any third party without the prior written consent of the other party, and not to use such Confidential Information except for the purpose of exercising its rights and fulfilling its obligations under this Agreement.

7.2      Non-Confidential Information. The restrictions of Section 7.1 shall not apply to information that is:

(a)       publicly available;

(b)      was known by or in the possession of the receiving party prior to being disclosed by the disclosing party pursuant to this Agreement; or

(c)       independently developed by the receiving party without reference to the disclosing party's Confidential Information.

7.3      Either party may disclose any Confidential Information (i) to such party's agents, attorneys and other representatives who have a need to know such information and agree to keep it confidential; or (ii) to any court of competent jurisdiction or any other party empowered hereunder as reasonably required to resolve any dispute between the parties. Both parties agree all aspects of this Agreement are confidential and shall not be disclosed to any third party except as required by law.

8. Certain Obligations of the Parties

8.1      Licensee Obligations. Licensee:

(a)       agrees to comply with all legal requirements in connection with the use of the Product;

(b)      agrees that all rights in and to the Product not expressly licensed are reserved to Licensor;

(c)       agrees not to sublicense, assign, transfer, pledge, offer as security, or otherwise encumber the Product or any of the rights granted in this Agreement in any way other than as expressly provided in the Agreement;

(d)      agrees not to use the Product in any manner or for any purpose in violation of the terms of this Agreement; and

(e)       acknowledges and agrees that it shall not at any time during the Term or thereafter (i) challenge the title or any other rights of Licensor or its licensors in or to the Product or any parts, derivatives or variations thereof; (ii) contest the validity of the copyrights or other proprietary interests in or to the Product; or (iii) claim any right, title or interest in or to the Product or any parts, derivatives or variations thereof except as explicitly granted in this Agreement.

8.2      Licensor Obligations. Licensor agrees to provide reasonable on-going assistance to Licensee with regard to technical, administrative and service-oriented issues relating to the utilization, encoding, transmission and maintenance of the Product, as Licensee may reasonably request. Licensor will make commercially reasonable efforts to ensure that the Product is timely, accurate and comprehensive.

9. Indemnification

9.1      Indemnification by Licensor. Licensor, at its own expense, will indemnify, defend and hold harmless Licensee and its employees against any claim, suit, action, or other proceeding brought against Licensee based on or arising from (i) a claim that the Product as delivered to Licensee infringes in any manner any intellectual property right of any third party or contains any material or information that is obscene, defamatory, libelous, slanderous, that violates any person's right of publicity, privacy or personality, or has otherwise resulted in any tort, injury, damage or harm to any person; or (ii) any breach by Licensor of this Agreement.

9.2      Indemnification by Licensee. Licensee, at its own expense, will indemnify, defend and hold harmless Licensor and its employees against any claim, suit, action, or other proceeding brought against Licensor based on or arising from (i) a claim that the Product as modified by Licensee infringes in any manner any intellectual property right of any third party or contains any material or information that is obscene, defamatory, libelous, slanderous, that violates any person's right of publicity, privacy or personality, or has otherwise resulted in any tort, injury, damage or harm to any person, where there would be no such claim but for such modification; or (ii) any breach by Licensee of this Agreement.

9.3      Third Party Claims. A party entitled to indemnification for a claim shall give the indemnifying party reasonably prompt notice of a claim brought by a third party and reasonable support in the defense of the claim.

10. Limited Liability

Under no circumstances shall either party be liable to the other party for indirect, incidental, consequential, special or exemplary damages arising from this Agreement, even if a party has been advised of the possibility of such damages, including but not limited to loss of revenue or anticipated profits or lost business.

11. General Provisions

11.1   Notices.

(a)       Form of Notice. All notices, requests, claims, demands and other communications between the parties shall be in writing.

(b)      Method of Notice. All notices shall be given: (i) by delivery in person; (ii) by a nationally recognized next day courier service; (iii) by first class, registered or certified mail, postage prepaid; or (iv) by facsimile or email, with confirmation of receipt, to the principal business address (including fax numbers and email address) of a party or to such other address as a party may specify in writing.

11.2   Assignment. Neither party may assign this Agreement or any right or obligation of this Agreement, by operation of law or otherwise, without the prior written consent of the other party, which shall not be unreasonably withheld; except that Licensor may assign this Agreement, upon written notice to Licensee, to an affiliate or to a purchaser of all or substantially all of the stock or assets of Licensor or to an entity into which Licensor is merged.

11.3   Governing Law. This Agreement shall be governed, construed, and enforced in accordance with the laws of the state of California, without regard to its conflict of laws rules.

11.4   Dispute Resolution. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Los Angeles Country, California, in accordance with the Streamlined Arbitration Rules and Procedures (the “Rules”) of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one neutral JAMS arbitrator who: (a) has substantial experience in resolving intellectual property and commercial contract disputes; (b) is selected from the appropriate list of JAMS arbitrators in accordance with the Rules; and (c) to the extent possible under the Rules, is a retired California judge.

Judgment upon the award so rendered may be entered in a court of competent jurisdiction (federal or state) in Los Angeles County, California. Application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.

11.5   Audit Rights. During the term of this Agreement and for two (2) years thereafter, Licensor or an independent auditor may, upon reasonable advance written notice and during normal business hours, audit Licensee’s records (including electronic records) solely to the extent reasonably necessary to verify that Licensee has complied with its obligations under this Agreement. Licensee will provide Licensor or the auditor with any information and documentation that Licensor or the auditor may reasonably request in connection with such audit.

11.6   Severability. A determination that any provision of this Agreement is invalid or unenforceable shall not affect the validity or enforceability of any other provision hereof.

11.7   Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

11.8   Counterparts. The Order Form may be executed in counterparts, each of which will be deemed to be an original, but all of which, taken together, constitute one and the same agreement. A counterpart of the Order Form may be delivered to or by either party by any means, including by fax, email or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., DocuSign) or as otherwise enforceable under applicable law. If a party's signature is transmitted by fax or in a PDF file by email, the signature on the counterpart creates a valid and binding obligation of the party executing it (or on whose behalf the signature is made) with the same effect as if the fax or PDF signature page was an original.

Habitu8 General Terms & Conditions Version 2018-07-01