STORYUP, INC. DBA HEALIUM

ENTERPRISE LICENSE AND SUBSCRIPTION AGREEMENT

THIS ENTERPRISE LICENSE AND SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS BETWEEN CUSTOMER (“CUSTOMER” OR “YOU”) AND STORYUP, INC. DBA HEALIUM, (“HEALIUM”) AND GOVERNS YOUR USE OF HEALIUM’S HEALIUM SOFTWARE AND SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE AND SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR ICON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDERING DOCUMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE BETWEEN CUSTOMER AND HEALIUM AS OF THE DATE OF YOU ACCEPTING THIS AGREEMENT.

  1. DEFINITIONS

In addition to the terms defined elsewhere in this Agreement, the following capitalized and underlined terms shall have the meaning set forth in this Section for purposes of this Agreement:

Authorized User” shall mean the individual(s) authorized by Healium or Customer to use the Services as permitted pursuant to an Order Form and to this Agreement.

Data” shall mean all data, measurements, numbers, statistics, figures, calculations, signals and all other information collected, received, compiled, derived, or generated in connection with the use of the Healium Software, including but not limited to, electroencephalogram (EEG) data, electromyogram (EMG) data, electro-oculogram (EOG) data, electrocardiogram (ECG) data, and other brainwave data (e.g., alpha, beta, gamma, delta, and theta brainwave signals), accelerometer and/or gyroscope data, blood pressure data, heart rate data, respiratory and/or breathing pattern data, skin conductance and/or skin temperature data, and other performance data, age, gender, height, weight, geographical location (ZIP code), session dates, live stream and recorded video, audio and virtual reality content, all other information collected and generated in connection with the use of the Healium Software and Services. Data shall also include any information provided by Customer or an Authorized User to Healium in connection with Customer’s or an Authorized User’s use of the Healium Software and Services, including but not limited to, name, address, email, phone number, and login credentials. Data shall not be considered Confidential Information.

Fees” shall mean all fees specified in an Order Form executed and agreed to by the parties for Customer’s and its Authorized Users’ use of the Healium Software and Services.

Hardware” shall mean the third-party virtual reality hardware products, devices and other accessories that are used by Customer to download, access, and/or use the Healium Software, including but not limited to a mobile device, virtual reality headset, brain sensing headband or cap, and other connected devices, all of which are owned by third parties and not Healium. The Hardware does not include the Healium Software or any Healium Materials.

Healium Software” shall mean the software and mobile application that Healium makes available to subscribers via the internet and all items of documentation relating to the Healium Software provided by Healium, along with any updates, fixes or modifications provided by Healium.

Order Form” shall mean the purchase order or other document entered into by the Customer and Healium for subscription access to the Healium Software and Services offered by Healium.

Personal Data” shall mean any Data that constitutes personally identifiable information, including a Customer’s or Authorized User’s name, address, email, telephone number, and login credentials.

Services” shall mean the provision of and making available for access by Customer the Healium Software via the internet through Customer’s login credentials, along with the features, functionality and services available through the Healium Software.

Healium Materials” shall mean the Healium Software, any manuals, instructions, documentation, data or other information provided in connection with the Healium Software and Services, all content and data made available through the Healium Software and Services, all technologies, developments, materials and inventions associated with the Healium Software and Services, and all plans, reports, metrics, data and information provided or used by Healium in connection with the Healium Software and Services.

Subscription Term” shall mean period of time during which Healium permits Customer and its Authorized Users to access the Healium Software and Services as specified in an Order Form and as set forth in this Agreement.

  1. FEES, PAYMENT AND TAXES

    1. Fees. Except as otherwise specified herein or in an Order Form, (a) Fees are quoted and payable in United States Dollars, (b) Fees are based on subscriptions purchased and not actual usage, and (c) payment obligations are non-cancelable and Fees paid are non-refundable..

    1. Invoicing and Payment. Healium will invoice Customer in advance and in accordance with the applicable Order Form. Unless otherwise stated in an Order Form, undisputed invoiced charges will be paid no more than thirty (30) days after the date of electronic delivery of an invoice. Customer is responsible for maintaining complete and accurate billing and contact information with Healium.

    1. Taxes. Customer is solely responsible for any and all U.S. based taxes, levies, charges and fees incurred or that may be payable to any U.S. based taxing authority in connection with the transactions hereunder, other than any income tax incurred by Healium. All fees stated herein are net of any applicable taxes.

  1. USE OF SOFTWARE AND SERVICES

    1. Subscription Grant. Subject to compliance with the terms and conditions of this Agreement, Healium grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license to access and use the Healium Software and Services on the Hardware on which it is installed or otherwise accessed from, and to use the Healium Materials provided in connection with the Healium Software and Services for Customer’s internal business purposes during the Subscription Term of this Agreement. The license granted herein authorizes Customer to grant access to use the Healium Software and Services to a designated number of Authorized Users as provided in an executed Order Form. Customer shall at no time exceed the total number of Authorized Users permitted under an Order Form. Customer shall be solely responsible for ensuring that all Authorized Users use and access the Healium Platform and Services in accordance with these terms and conditions.

    1. Authorization to Use Software and Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance and performance in accordance with the terms and conditions of this Agreement, Healium hereby authorizes Customer and its Authorized Users to access and use during the Subscription Term, the Healium Software and Services Healium supplies or makes available to Customer, solely for Customer’s internal business purposes and its Authorized Users’ personal, non-commercial purposes through the use of individual login credentials, including a user name and password. This authorization is non-exclusive and non-transferable. Customer shall be responsible for managing the login credentials for each Authorized User and will be responsible for any loss, theft or misuse of the login credentials and/or user name or password.

    1. Access to Software and Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Subscription Term, Healium will provide Customer with the Services in accordance with the terms and conditions hereof, including hosting, managing, operating and maintaining the Healium Software associated with the Services for remote electronic access and use by Customer and its Authorized Users 24 hours a day, 7 days a week, except for during periods of: (a) scheduled system back-up or other on-going maintenance as required and scheduled in advance, (b) unscheduled maintenance or repairs due to unexpected unavailability or disruption to the Services, (c) any disruption due to force majeure or to which is beyond Healium’s reasonable control, including excessive internet traffic, internet outages, unavailability of hosting services and failure of internet service providers, (d) Customer’s or any of its Authorized Users’ misuse of the Healium Software or Services, or use of the Healium Software or Services other than in compliance with the express terms and conditions of this Agreement, or (e) any suspension or termination of Customer’s access to or use of the Services as permitted by this Agreement.

    1. Use Restrictions. Customer’s and its Authorized Users’ access and license to the Healium Software and Services is limited to Customer and its Authorized Users only, and Customer and its Authorized Users shall be prohibited from authorizing any third party or unauthorized person from using and/or accessing the Healium Software and the Services through Customer’s or its Authorized Users’ login credentials. Customer shall not, nor shall Customer permit any of its Authorized Users’ or any other person to, do any of the following: (a) use the Healium Materials and Services for any purpose, or in any manner not specifically authorized by this Agreement, (b) copy, distribute or otherwise transfer the Healium Materials to any third party, (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, or otherwise make available any of the Healium Materials or Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service, (d) modify, adapt, alter, translate, or create derivative works of the Healium Materials, (e) decompile, disassemble, reverse engineer or otherwise derive source code, or attempt to derive source code, from the Healium Materials, (f) refer to or otherwise use the Healium Materials as part of any effort to develop a program to compete with Healium or any other purpose that is to Healium’s detriment or commercial disadvantage, (g) remove, delete, alter or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Healium Materials, (h) bypass or breach any security device or protection used by any of the Healium Materials or access or use the Healium Materials other than through the use of Customer’s or its Authorized Users’ own then valid access credentials, (i) input, upload, transmit or otherwise provide to or through Healium’s computer or network infrastructure or the Healium Software, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code, or (j) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, the Healium Software, Healium’s computer or network infrastructure or Healium’s provision of services to any third party, in whole or in part.

    1. Verifying Compliance. Customer agrees to create, retain, and provide to Healium and its auditors accurate written records and other system information sufficient to provide auditable verification that Customer’s and its Authorized Users’ use of the Healium Software and Services is in compliance with this Agreement and the number of Authorized Users permitted under an Order Form. Upon reasonable notice, exercisable not more than once every twelve (12) months, Healium may verify Customer’s compliance with this Agreement and any Order Form. Healium may audit more than once every twelve (12) months if there has already been a previous audit that disclosed a disclosed a discrepancy in payment. Healium will notify Customer in writing if any such verification indicates that Customer has used the Healium Software or Services in excess of its allowed user count or is otherwise not in compliance with this Agreement or an Order Form. Customer agrees to promptly pay directly to Healium the charges that Healium specifies in an invoice for 1) any such excess use, and 2) any additional charges and other liabilities determined as a result of such verification. If any such audit discloses a shortfall in payment to Healium of more than five percent (5%) for any given twelve (12) month period, Customer shall promptly reimburse Healium for the fees and expenses of such audit.

    1. Changes to Healium Materials and Services. Healium reserves the right, in its sole discretion, to make any changes to the Healium Materials and Services (including the Healium Software) that Healium deems necessary or useful to maintain or enhance the quality, delivery, competitive strength, efficiency and performance of the Healium Materials and Services, or to comply with applicable laws.

  1. PROPRIETARY RIGHTS

    1. Healium Materials and Services. All right title and interest in and to all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world (the “Intellectual Property Rights”) in the Healium Software, Services and Healium Materials, including any third party materials (but excluding for the avoidance of doubt, Personal Data) belong solely and exclusively to Healium or its suppliers or licensors. Customer acknowledges that the Healium Software (including all methods, concepts or techniques utilized therein) and related documentation are commercially valuable to Healium and are treated as confidential, proprietary and containing of trade secrets. All rights not expressly granted to Customer under this Agreement are reserved by Healium.

    1. Hardware. All right title and interest in and to the Hardware and any associated Intellectual Property Rights therein belong to the applicable third-party providers of such Hardware. Healium does not manufacture, own or control any Hardware that may be used in connection with the Healium Software and Services, and Customer and its Authorized Users accept all risks responsibility with respect to its use of such Hardware. Customer and its Authorized Users shall use the Hardware in accordance with the terms and conditions provided by the third-party providers of such Hardware.

  1. COLLECTED AND GENERATED DATA

The parties acknowledge that Customer and its Authorized Users will provide and generate Data in connection with their use of the Healium Software and Services. This Data may include different types of biometric information relating to Authorized Users during Customer’s and its Authorized Users’ use of the Healium Software and Services, including but not limited brainwave activity, heart rate, blood pressure, and similar metrics. When connected to Wi-Fi this data will be initially processed on the user’s local device and sent to the cloud for further processing and storage. When not connected to Wi-Fi, local device processing will take place and will queue the data for processing in the cloud once a Wi-Fi connection becomes available. This Data may also include live stream and recorded audio, video and virtual reality content created during Customer’s and its Authorized Users’ use of the Healium Software and Services in the event Customer or its Authorized Users elect to live stream or record Customer’s or Authorized Users’ use of the Healium Software and Services through the Healium Software’s functionality. In order to access and utilize the Healium Software and Services, Customer and its Authorized Users hereby agrees to the following:

    1. Grant of License. Customer and each Authorized User hereby grants to Healium (to the extent of Customer’s or its Authorized Users’ rights therein, if any) a non-exclusive, royalty-free, worldwide, irrevocable, perpetual right and license to collect, host, use, modify, adapt, copy, store, transmit, adapt, de-identify, reproduce, process, aggregate, analyze and create derivative works from any and all Data created, generated and/or provided by Customer or its Authorized Users during Customer’s and its Authorized Users’ use of the Healium Software and Services for the purposes set forth in this Section 5.

    1. Use and Disclosure of Data. Except as otherwise expressly provided herein, Healium will only use Data collected from Customer and its Authorized Users to provide the Healium Software and Services to Customer. Healium may also use the Data (a) for its own internal legitimate business purposes and (b) to provide anonymized and aggregated forms of the Data to third parties, provided that such anonymized and aggregated data forms shall not include any Personal Data from Customer or its Authorized Users. Healium will disclose Data of Authorized Users to Customer through the Services; however, Healium will not disclose the Data in any format to any third parties except as expressly provided herein or pursuant to a court order, subpoena or as otherwise compelled by law.

    1. Rights in Customer Data. Customer is responsible for ensuring that all Authorized Users are fully informed of the data practices and obligations associated with use of the Healium Software and Services and that such Authorized Users have consented and agreed to such data practices in writing. Customer represents and warrants that it has the rights and licenses necessary to grant the license in Section 5.1 to Healium in connection with Customer’s and its Authorized Users’ use of the Healium Software and Services and that by providing to and allowing Healium to collect Data (including, without limitation, Data of its Authorized Users), Customer will not violate any intellectual property or privacy rights of any third parties, confidential relationships, contractual obligations or applicable laws.

  1. TERM AND TERMINATION

    1. Term; Renewals. This Agreement will remain in effect during the Subscription Term specified in an Order Form unless terminated sooner in accordance with this Agreement. [Upon expiration of the initial Subscription Term, unless otherwise stated on an applicable Order Form, the ordered access to the Healium Software and Services will automatically renew for additional consecutive Subscription Terms of one (1) year each, unless and until either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term.]

    1. Termination. Either party may terminate this Agreement for any reason, or no reason, if there is no Subscription Term then in effect under the terms of an Order Form. Either party may terminate this Agreement by written notice to the other party in the event that the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after written notice thereof. In the event that termination is due to Customer’s material uncured breach, Customer will pay any Fees then due, including Fees remaining for the full then-current Subscription Term. In the event of termination due to Healium’s material uncured breach, Customer shall receive a refund of any prepaid, unused Fees and such termination will be effective thirty (30) days from the date of Customer’s termination notice to Healium. In the event that either party makes a general assignment for the benefit of creditors, is adjudicated as bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may terminate the Agreement immediately upon written notice. Upon expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will terminate immediately.

    1. Survival. The following Sections will survive termination or expiration of this Agreement: 1, 3.4, 4, 5, 6.3, 7, 9, 10, 11 and 12.

  1. CONFIDENTIALITY

    1. Restrictions on Disclosure. Each party agrees that during the term of this Agreement, including any initial and renewal Subscription Terms, and at all times thereafter, it will not disclose the other party’s Confidential Information (defined below) to any person or entity, except to its own personnel having a legitimate need to know and who have entered into a written agreement with the receiving party containing confidentiality provisions as restrictive as those set forth in this Section 7. Each party will not use or permit its personnel to use any Confidential Information for purposes other than the performance of its duties under this Agreement. Each party will use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event will a party use less than reasonable diligence and care. To the extent the receiving party is required by subpoena or otherwise by law to disclose Confidential Information it received from the disclosing party, the receiving party shall provide the disclosing party with prompt written notice of such requirement and shall cooperate with the disclosing party in taking such steps as may be reasonably indicated to maintain the confidentiality of the information subject to disclosure. Upon termination of this Agreement, each party will cease using the other party’s Confidential Information for any purpose and, unless otherwise instructed in writing, will promptly return to the other party all documents or other materials in its possession that contain the other party’s Confidential Information in whatever format, whether written or electronic, including any and all copies or reproductions of the other party’s Confidential Information.

    1. Confidential Information Defined. As used herein, the term “Confidential Information” shall mean, with respect to a party hereto, all information and documentation relating directly or indirectly to the business, business practices, trade secrets or affairs of a party, including but not limited to, information that (a) is marked “Confidential”, “Restricted,” or “Proprietary Information” or other similar marking, and (b) pertains to the internal business, financial and marketing information of either party, (c) pertains to the contractual terms, fees and pricing relating to this Agreement, (d) pertains to the software, firmware, and all technology, training content, and know-how associated with the Healium Software, Services or Healium Materials provided to Customer hereunder, (e) is known by the parties to be considered confidential or proprietary, or (f) should be known or understood to be confidential or proprietary by an individual exercising reasonable commercial judgment in the circumstances. Confidential Information does not include information to the extent that such information: (w) is or becomes generally known to the public by any means other than a breach of the obligations of a receiving party hereunder, (x) was previously known to the receiving party as evidenced by its written records, (y) is rightly received by the receiving party from a third party who is not under an obligation of confidentiality, or (z) is independently developed by the receiving party without reference to or use of the other party’s Confidential Information.

  1. SUPPORT AND MAINTENANCE

    1. Maintenance and Support. Healium will provide standard maintenance and support services (“Standard Maintenance”) for the Healium Software and Services during a Subscription Term. The Standard Maintenance shall include (a) correcting material defects in the Healium Software and Services that impair Customer’s use of the Healium Software and Services, (b) providing periodic patches, repairs, and fixes to minor bugs, errors and defects in the Healium Software and Services, (c) providing basic technical support to Customer during Healium’s normal business hours to reasonably assist Customer with any issues regarding the operation, functionality or performance of the Healium Software and Services, and (d) providing any other standard maintenance and support for the Healium Software and Services that Healium provides standard to other customers. Except as otherwise provided herein, the Standard Maintenance does not include any major upgrades, modifications, improvements or enhancements to the Healium Software and Services.

    1. Contacting Healium for Support. In the event Customer requires technical support for the Healium Software and Services, Customer shall contact Healium via email at hello@tryHealium.com, or other address or method that Healium may designate in the future.

  1. REPRESENTATIONS AND WARRANTIES

    1. Mutual Representations and Warranties. The parties each represent, warrant and covenant to the other that (a) such party has the full power and authority to execute, deliver and perform this Agreement and to carry out the transactions contemplated hereby, and (b) the execution, delivery and performance by such party of this Agreement does not and will not materially conflict with any legal, contractual, or organizational requirement of such party.

    1. Customer Warranty. Customer represents and warrants that Customer (a) has all necessary rights and licenses to the Hardware not provided by Healium that Customer and its Authorized Users use in connection with the Healium Software and Services, (b) will not allow or authorize any third party or person not designated as an Authorized User to use or access the Healium Software and Services, and (c) will comply with all other obligations and restrictions with respect to the use of the Healium Software and Services as set forth herein.

    1. Healium Warranty. Healium represents and warrants that the Healium Software and Services, when used in accordance with the documentation, manuals and specifications provided in connection with the Healium Materials and when used as authorized herein, will perform and operate as intended and substantially in conformance with the documentation, manuals and specifications provided. Healium’s sole obligation and Customer’s exclusive remedy for any breach of this warranty is limited to Healium’s reasonable commercial efforts to correct the non-conformance at no additional charge to Customer.

    1. Data Security Warranty. Healium represents and warrants that it will use commercially reasonable efforts and industry-standard methods, products and protocols to maintain the security of any Customer Data and prevent the unauthorized disclosure of Personal Data.

    1. High-Risk Activities. The Healium Software and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the Healium Software or Services, or any Hardware utilized in connection with the Healium Software and Services could lead directly to death, personal injury, loss of chance of recovery or severe physical or property damage (collectively, “High-Risk Activities”). Healium expressly disclaims any express or implied warranty of fitness for High-Risk Activities. The Healium Software and Services are not designed or intended to be used independently to provide medical analysis or advice or in lieu of the advice of a medical professional.

    1. DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND TO THE GREATEST EXTENT ALLOWED BY LAW, HEALIUM HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE HEALIUM SOFTWARE, SERVICES AND HEALIUM MATERIALS PROVIDED HEREUNDER INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY RIGHTS OR ANY OTHER MATTER. UNLESS OTHERWISE EXPRESSLY SET FORTH HEREIN, HEALIUM DOES NOT WARRANT THAT THE HEALIUM SOFTWARE AND SERVICES WILL PERFORM ERROR FREE OR WITHOUT INTERRUPTIONS, NOR DOES HEALIUM WARRANT THAT THE HEALIUM SOFTWARE AND SERVICES WILL MEET ALL CUSTOMER REQUIREMENTS OR THAT ALL ERRORS OR FAILURES WILL BE CORRECTED. THE WARRANTIES CONTAINED HEREIN SET FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF A DEFECT IN WORKMANSHIP OR MATERIALS AND WILL NOT BE DEEMED TO HAVE FAILED ITS ESSENTIAL PURPOSE SO LONG AS HEALIUM IS WILLING AND ABLE TO CARRY OUT THE TERMS OF THIS EXCLUSIVE WARRANTY.

    1. [MEDICAL DISCLAIMER. THE HEALIUM SOFTWARE AND SERVICES PROVIDED BY HEALIUM, INCLUDING ANY DATA, INFORMATION OR CONTENT PROVIDED BY HEALIUM IN CONNECTION WITH THE HEALIUM SOFTWARE AND SERVICES, ARE NOT INTENDED IN ANY WAY TO BE MEDICAL TREATMENT FOR ANY DISEASE OR CONDITION, AND ARE NOT INTENDED IN ANY WAY TO INDEPENDENTLY PROVIDE MEDICAL ADVICE OR IN LIEU OF THE ADVICE OF A MEDICAL PROFESSIONAL.]

  1. INDEMNIFICATION

    1. By Healium. Healium will indemnify, defend at its own expense, and hold harmless Customer against any loss, damage or expense (including reasonable attorneys’ fees) incurred by Customer as a result of claims, actions, or proceedings brought by any third party alleging that the Healium Software or Services infringes the intellectual property rights of such third party, provided, however, that (1) Customer must give Healium prompt written notice of such claim, demand, suit or action, and (2) Healium will have control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof. Notwithstanding the foregoing, Healium will have no liability hereunder or any obligation to indemnify, defend or hold Customer harmless for any infringement action or claim that is based upon or arising from (x) Customer’s or its Authorized Users’ use of the Healium Software or Services or any component thereof beyond the scope of permitted use set forth herein, (y) Customer’s or its Authorized Users’ unauthorized modification of the Healium Software or Services or any component thereof, (z) Customer’s or its Authorized Users’ combination of the Healium Software or Services or any component thereof with Hardware or other products, equipment, software, or data not supplied by Healium. If Customers’ right to use the Healium Software and Services is enjoined, Healium will (i) procure for Customer the right to use the Healium Software and Services, (ii) replace the Healium Software and Services with a functionally equivalent product, or (iii) modify the Healium Software and Services such that Customer has the right to use the Healium Software and Services. If (i), (ii) or (iii) are not commercially reasonable in both parties’ discretion, Healium will (without prejudice to any other rights and remedies of Customer) refund all fees paid by Customer to Healium, as applicable, during the previous 12 months for the Healium Software and Services.

    1. By Customer. Customer will indemnify, defend and hold harmless Healium against any loss, damage or expense (including reasonable attorneys’ fees) incurred by Healium as a result of claims, actions, or proceedings brought by any third party arising from (a) Customer’s or its Authorized Users’ use of the Healium Software and Services or any component thereof beyond the scope of permitted use set forth herein or for purposes for which it is not intended, (b) a breach or alleged breach of any representation or warranty of Customer under this Agreement, or (c) injury to person or property arising from acts of negligence, bad faith, willful misconduct or reckless disregard by Customer or its Authorized Users relating to this Agreement, provided, however, that (1) Healium must give Customer prompt written notice of such claim, demand, suit or action, and (2) Customer will have control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof, unless the claim involves or relates to an intellectual property right of Healium, in which case Healium may elect to have sole control over the defense or settlement of such claim.

  1. LIMITATION OF LIABILITY

NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST REVENUE, LOST DATA, REPLACEMENT GOODS, OR INTERRUPTION OF USE OF THE HEALIUM SOFTWARE AND SERVICES, WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT FOR (1) ANY BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7, OR (2) THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES UNDER SECTION 10, NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY LOSSES, CLAIMS, BREACHES OR DAMAGES UNDER THIS AGREEMENT WILL EXCEED THE TOTAL AMOUNT RECEIVED BY HEALIUM FROM CUSTOMER, AS APPLICABLE, UNDER THE AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. THE LIMITATIONS ON DAMAGES IN THIS PARAGRAPH WILL APPLY UNDER ALL THEORIES OF LIABILITY OR CAUSES OF ACTION, INCLUDING CONTRACT, WARRANTY (INCLUDING WARRANTY REMEDIES UNDER THE WARRANTY PARAGRAPH ABOVE), TORT OR STRICT LIABILITY. THE ABOVE LIMITATIONS WILL INURE TO THE BENEFIT OF HEALIUM’S SUPPLIERS, AGENTS AND SUBCONTRACTORS.

  1. MISCELLANEOUS PROVISIONS

    1. Excusable Delays in Performance. Neither party shall be liable to the other for any delay in the performance of its obligations hereunder which is unavoidable with reasonable diligence, which occurs without its fault or negligence, and which is caused by an event, act of God, or third party not within its reasonable control; provided, however, that the party so delayed in performance shall promptly notify the other party of the delay and its expected duration.

    1. Assignment and Subcontracting. Customer may not assign this Agreement or any of the rights or obligations hereunder without the prior written consent of Healium, which will not be unreasonably withheld. Healium may freely assign this Agreement or any of the rights or obligations hereunder. Healium may subcontract work to be performed under this Agreement, but will retain responsibility and liability for such work.

    1. Disputes and Choice of Law. This Agreement shall be construed in accordance with Missouri law without giving effect to the choice or conflicts of law provisions thereof. The parties agree that any legal proceedings which arise under this Agreement shall be brought in the state and federal courts in the state of Missouri.

    1. Miscellaneous Terms. The section headings contained in this Agreement are inserted for reference purposes only and will not affect the meaning or interpretation of this Agreement. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of any other provision of this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, discussions or representations, whether written or oral. The failure of either party to assert any of its rights under this Agreement, including the right to terminate this Agreement in the event of a breach or default by the other party, will not be deemed to constitute a waiver by that party of its right thereafter to enforce each and every provision of this Agreement in accordance with their terms. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Healium and Customer. Neither party has the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.

BY SIGNING OR CLICKING-THROUGH THIS AGREEMENT OR OTHERWISE AGREEING BY USE, CUSTOMER HEREBY AGREES THAT IT HAS REVIEWED, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND FURTHER AGREES TO ENSURE THAT EACH OF CUSTOMER’S EMPLOYEES AND OTHER END USERS DO THE SAME.

CUSTOMER: HEALIUM (dba for StoryUp, Inc.)

By: By:

Name: Name:

Title: Title:

Date: Date:

No notifications