BACKGROUND: StudentCaringContacts (SCC, We, Us, Our) is a service from HopeCheck org LLC that is offered to school Counselors (counselor, advisor, faculty, staff, psychologist, etc) through their sponsoring Subscriber (K-12 school, college, university, or other institution). Subscribers complete an Order Form establishing the length of the service and number students covered in the service. The role of the service is to ask students caring contact questions. A caring contact is a proactive check-in with a student to see how they are doing. The goal for a caring contact question is to: 1) identify issues students may be struggling with, 2) follow-up with age-appropriate educational content to help those students manage the issue, and 3) direct those students who may need additional support to appropriate resources. After We capture student responses to a caring contact question, We create and send the appropriate school Counselor a report showing all their students’ responses. The Counselor can use the service to send a response to participating students with a message of support, education, referral, etc. This constitutes Our Caring Contact Service. The Subscriber and SCC enter into this Subscription Agreement (SA) pursuant to which sponsoring school Subscribers subscribe to the Caring Contact Service. These Terms and Conditions create this Agreement.
 
1 RIGHT TO USE REPORT SERVICE
1.1 Caring Contact Service. Subject to the terms and conditions of this Agreement, SCC hereby grants Subscriber the limited, nonexclusive, nontransferable, non-sublicensable right to access and use the Caring Contact Service during the Term solely for Subscriber’s use (including use by Subscriber’s Counselors) who are collectively Authorized User.
1.2 Limitations. The following limitations and restrictions will apply to the Caring Contact Service:
(a) Subscriber will not provide access to the Caring Contact Service to any person who is not a Counselor or contractor of Subscriber or an Authorized User.
(b) Except as expressly permitted hereunder, Subscriber will not and will not permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Caring Contact Service; (ii) modify, translate or create derivative works based on the Caring Contact Service; (iii) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Caring Contact Service; (iv) use the Caring Contact Service for time sharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Caring Contact Service or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (vi) remove or obscure any proprietary notices or labels of SCC or its suppliers on the Caring Contact Service.
 
2 OWNERSHIP; RESERVATION OF RIGHTS
2.1 Subscriber Data Ownership. Subscriber owns (a) any data on the Caring Contact Service which the Subscriber inputs or transmits into the Caring Contact Service (including all student data) and any survey responses provided by Subscriber’s related students (“Data”), and (b) any other data and content provided by Subscriber or Authorized Users to SCC or input into the Service (“Other Data”, and, together with the Data, “Subscriber Data”). Subscriber hereby grants to SCC a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (through multiple tiers) (i) right and license during the Term to copy, distribute, display and create derivative works of and use the Subscriber Data to perform SCC’s obligations under this Agreement; (ii) perpetual, irrevocable right and license to copy, modify and use Subscriber Data to create aggregated, non-personally identifiable data or information (“Blind Data”) and copy, distribute, display, create derivative works of and use the Blind Data for benchmarking, research or development purposes, including published research. Subscriber reserves any and all right, title and interest in and to the Subscriber Data other than the licenses therein expressly granted to SCC under this Agreement.
2.2 SCC Ownership. SCC retains all right, title and interest in and to the Caring Contact Service, all copies or parts thereof (by whomever produced) and all intellectual property rights therein. SCC grants no, and reserves any and all, rights other than the rights expressly granted to Subscriber under this Agreement with respect to the Caring Contact Service.
2.3 Feedback. Subscriber may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to SCC with respect to the Caring Contact Service. SCC has full discretion to determine whether to proceed with development of the requested enhancements, features or functionality. Subscriber hereby grants SCC a royalty-free, fully paid-up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback in whole or in part; and (b) use the Feedback in whole or in part, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and lease products or services that practice or embody, or are configured for use in practicing, the Feedback in whole or in part.
2.4 Subscriber Responsibilities. Subscriber will (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Caring Contact Service and notify SCC promptly of any such unauthorized access or use, and (b) use the Caring Contact Service only in accordance with the documentation and applicable laws and regulations.
2.5 Data Security. SCC will implement and maintain reasonable administrative, physical and technical safeguards (“Safeguards”) which attempt to prevent any collection, use or disclosure of, or access to Subscriber Data that this Agreement does not expressly authorize, including, without limitation, an information security program that meets commercially reasonable industry practice to safeguard Subscriber Data. Such information security program includes (a) physical security of all premises in which Subscriber Data will be processed and/or stored; and (b) reasonable precautions taken with respect to the employment of, access given to, and education and training of any and all personnel furnished or engaged by SCC to perform any part of the Caring Contact Services hereunder.
2.6 Privacy Policy. SCC cares deeply about privacy, and we recognize that it is important to the Subscriber, students, parents, guardians, and others we serve. Please see our Privacy Policy for more information about how we protect the privacy of those we serve.
2.7 Right to Data Destruction. If requested by the Subscriber, during or after the term of this agreement, SCC will make reasonable efforts to destroy or otherwise render Subscriber Data inaccessible.
 
3 FEES; PAYMENT TERMS
3.1 Fees; Payment Terms. Unless otherwise indicated on the Offer Form completed by the Subscriber, Subscriber will pay fees to continue a Subscription as shown on the Order Form. If payment of any fee is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Subscriber will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by SCC within thirty (30) days from the time such payment is due, SCC may suspend access to the Caring Contact Service until such payment is made.
3.2 Net of Taxes. All amounts payable by Subscriber to SCC hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively "Taxes"). Subscriber will be solely responsible for payment of any Taxes, except for those taxes based on the income of SCC. Subscriber will not withhold any Taxes from any amounts due SCC.
 
4 TERM, TERMINATION
4.1 Term. The term of this Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Section 4, will continue until the expiration date shown on the Order Form (the “Term”).
4.2 Termination; Effect of Termination. In addition to any other remedies it may have, either party may terminate this Agreement for any reason, at any time. Upon any termination of this Agreement for any reason, SCC may, but is not obligated to, in its sole discretion and without delivery of any notice to Subscriber, delete any Subscriber Data stored or otherwise archived on the Caring Contact Service or on SCC’s network. Subscriber agrees to pay in full any balance due for the use of the Caring Contact Service up to and including the last day of the month in which the Caring Contact Service is provided under a paid subscription. If Subscriber cancels before the full term outlined on their Order Form, they can request and receive a pro-rated refund of paid funds for the unused portion of the Term set on the Order Form.
4.3 Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 2 (Ownership; Reservation of Rights), 3.1 (Fees; Payment Terms), 4.2 (Termination; Effect of Termination), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Limitations of Liability; Indemnification), and 8 (General) will survive.
 
5 CONFIDENTIALITY
5.1 As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective Subscribers’ data, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified.
SCC’s Confidential Information includes, without limitation, include the Caring Contact Service.
Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of a party, and each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the terms of this Agreement, in whole or in part (i) to its employees, officers, directors, professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), existing and prospective investors or acquirers contemplating a potential investment in or acquisition of a party, sources of debt financing, acquirers and/or subcontractors who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as reasonably deemed by a party to be required by law (in which case each party will provide the other with prior written notification thereof, will provide such party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, each Receiving Party agrees to promptly return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party that is in the possession of the Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments thereof.
 
6 REPRESENTATIONS, WARRANTIES AND DISCLAIMER
6.1 Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when approved by both parties.
6.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CARING CONTACT SERVICE IS PROVIDED ON AN “AS-IS” BASIS AND SCC DISCLAIMS ANY AND ALL WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NEITHER PARTY WARRANTS AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY OR AGAINST INFRINGEMENT. NEITHER PARTY WARRANTS THAT THE PRODUCTS OR SERVICES PROVIDED BY SUCH PARTY ARE ERROR-FREE OR THAT OPERATION OF SUCH PARTY’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED. NEITHER PARTY WILL HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF THE OTHER PARTY TO ANY THIRD PARTY.
 
7 LIMITATIONS OF LIABILITY; INDEMNIFICATION
7.1 Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR (A) SUBSCRIBER’S USE OF THE CARING CONTACT SERVICE OTHER THAN EXPRESSLY PERMITTED BY SECTION 1 (RIGHT TO USE) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7.4 AND 7.5 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR (A) SUBSCRIBER’S USE OF THE PLATFORM OTHER THAN EXPRESSLY PERMITTED BY SECTION 1 (RIGHT TO USE) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 7.4 AND 7.5 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY SUBSCRIBER TO SCC UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
7.4 Indemnification by SCC. Except for liability for which Subscriber is responsible under Section 7.5, SCC will indemnify, defend and hold Subscriber and the officers, directors, agents, and Counselors of Subscriber (“Subscriber Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party or incurred by the Subscriber Indemnified Parties (including reasonable attorneys' fees) arising from any third party claim, demand or allegation that the use of the Caring Contact Service in accordance with the terms and conditions of this Agreement infringes such third party’s copyright or results in a misappropriation of such third party’s trade secrets. SCC will have no liability or obligation under this Section 7.4 if such Liability is caused in whole or in part by (a) modification of the Caring Contact Service by any party other than SCC without SCC’s express consent; (b) the combination, operation, or use of SCC with other product(s), data or services not provided by SCC where the Caring Contact Service would not by itself be infringing; or (c) unauthorized or improper use of the Caring Contact Service. If the use of the Caring Contact Service by Subscriber has become, or in SCC’s opinion is likely to become, the subject of any claim of infringement, SCC may at its option and expense (i) procure for Subscriber the right to continue using the Caring Contact Service as set forth hereunder; (ii) replace or modify the Caring Contact Service to make it non-infringing so long as the Caring Contact Service has at least equivalent functionality; (iii) substitute an equivalent for the Caring Contact Service or (iv) if options (i)-(iii) are not available on commercially reasonable terms, terminate this Agreement. This Section 7.4 states SCC’s entire obligation and Subscriber’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
7.5 Indemnification by Subscriber. Subscriber will indemnify, defend and hold SCC and the officers, directors, agents, and employees of SCC (“SCC Indemnified Parties”) harmless from Liabilities that are payable to any third party or incurred by the SCC Indemnified Parties (including reasonable attorneys' fees) arising from any third party claim, demand or allegation arising from or related to (a) any use by Subscriber or Authorized Users of the Caring Contact Service in violation of this Agreement or (b) the Subscriber Data.
7.6 Indemnification Procedure. If a Subscriber Indemnified Party or a SCC Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 7.4 or Section 7.5, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both parties hereunder, such consent not to be unreasonably withheld or delayed.
 
8 GENERAL
if any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement by operation of law or otherwise or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any other assignment or attempted assignment by either party otherwise than in accordance with this Section 8 will be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Subscriber acknowledges that any unauthorized use of the Caring Contact Service will cause irreparable harm and injury to SCC for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Subscriber further agrees that SCC will be entitled to injunctive relief in the event Subscriber uses the Caring Contact Service in violation of the limited license granted herein or uses the Caring Contact Service in any way not expressly permitted by this Agreement. All notices under this Agreement will be in writing and sent to the recipient’s address set forth during account creation and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party agrees that it will not, without prior written consent of the other, issue a press release regarding their business relationship. Notwithstanding anything herein to the contrary, Upon receiving prior written approval of the Subscriber, SCC may identify Subscriber and the relationship between SCC and Subscriber in SCC’s marketing collateral, website, and other promotional and marketing materials. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)), or national or local emergency (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party will give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement will be governed by the laws of the State of Florida without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Collier County, Florida and waives any jurisdictional, venue, or inconvenient forum objections to such courts.