3.          LICENSE GRANT

3.1       License For Software. Subject to the terms and conditions of this Agreement and provided that all Fees due and payable under this Agreement have been paid by Client to WBC, WBC grants Client a non-exclusive, non-transferable, non-sublicenseable, limited license for that number of Client’s employees for which Client has paid Fees (“Authorized Users”) to access and use the Software during the Term of this Agreement solely for Client’s internal business purposes.

3.2       Documentation. WBC may make certain documents and other information about the Software available to Client for downloading, copying and use in conjunction with Client’s use of the Software (“Documentation”). Client may make, for its internal use and only in conjunction with the use of the Software, a reasonable number of printed copies of the Documentation (excluding Marketing Presentations, which are governed by Section 3.3 (Additional Services)), provided Client includes all WBC copyrights and all other proprietary notices in the Documentation on such copies it produces. Further, Client agrees not to remove or destroy any proprietary markings or proprietary legends placed on or contained within the Software or any Documentation.

3.3       WBC Content.  From time to time, WBC may make certain content available through the Software, including images, logos, copy and other material (the “WBC Content”). The WBC Content will be located at a specified tab and location within the Software and will only be available to You if you have accepted the terms of this Agreement. If you have authorized access to the WBC Content, WBC grants to Client a non-exclusive, non-transferable, non-sublicenseable, limited license for Authorized Users to access and use the WBC Content during the Term of this Agreement solely for Client’s internal business purposes. Moreover Client may only use the WBC Content in the form provided and may not make derivative copies thereof and will not remove or alter any WBC copyright notices or similar markings. Except for the limited license granted herein to Client in WBC Content, WBC reserves all right, title and interest in the WBC Content and all other content of any kind and type found within the Software and Client has no right to use, in any fashion or manner, such other content without WBC’s advance written consent.

3.4       Marketing Presentations. Client may order electronic or printed marketing presentations and/or videos through the WBC website (“Marketing Presentations”) for an additional fee. To the extent Client orders Marketing Presentations, such Marketing Presentations shall be used by Client solely for its internal business purposes and cannot be (a) sold, leased, or distributed to any third party without the prior express permission of WBC, or (b) be used for any purposes that is competitive with WBC’s business, including to build any software, product, or service that is competitive or similar to the Software, Marketing Presentations, or any portion thereof.  Moreover, WBC grants to Client a non-exclusive, non-transferable, non-sublicenseable, limited license for Authorized Users to copy and use limited excerpts from the Marketing Presentations during the Term of this Agreement solely for Client’s internal business purposes. Client will provide written notice on any materials that contain excerpts of such Marketing Presentations that portions of the material is copyrighted by WBC and is used herein with WBC’s permission.

4.          SUSPENSION OF SOFTWARE 

WBC may, at any time, suspend the Software and/or Client’s and Client’s Authorized User’s access to the Software if (a) WBC reasonably believes that such a suspension is necessary to maintain the security or integrity of the Software, or to prevent misuse of the foregoing by any person, including Client, or (b) Client has failed to pay the applicable Fee(s) to WBC when due, provided that WBC notifies Client promptly of any such suspension. WBC shall not be liable for any failure to provide access to or use of the Software during any such suspension.

5.          LIMITATIONS ON LICENSE

5.1       Limitations on Copying. Client shall not, and shall not allow any of its Authorized Users or any other third party to, copy, download, or reproduce the Software.

5.2       Limitations on Third Party Use. Only Client’s Authorized Users are permitted to access or use the Software. Client shall not license, sublicense, sell, resell, market, lease, loan, rent, transfer, assign, distribute, disclose, or make accessible to any third party (that is not an Authorized User), or otherwise commercially exploit the Software or grant any right to access or use the Software to any third party.

5.3       Limitations on Reverse Engineering and Modification. Client shall not, and shall not allow any of its Authorized Users or any other third party to: (a) modify or improve the Software or make derivative works based upon the Software; (b) decompile, disassemble, or reverse engineer any object code that is part of the Software or attempt to reverse engineer, reconstruct, identify, or discover any source code of any such software, the structure, sequence, or organization of such source code or any algorithms, methods, or models contained therein; (c) create Internet “links” to the Software or “frame” or “mirror” any content on any other server or wireless or Internet-based device; (d) enter into time-sharing or data processing service arrangements involving use of Software with any third party; (e) remove any product identification, trademark, copyright, patent, or other notices or markings contained in, displayed by, or provided with the Software; or (f) access or use the Software in order to build any software, product, or service that is competitive or similar to the Software or any portion thereof.

5.4       Limitations on Use. Client shall not: (a) submit Client Data (as defined below in Section 7.1) or any other material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (b) interfere with, impede, or disrupt the integrity or performance of the Software or the data contained therein or part thereof; (c) attempt to gain unauthorized access to the Software or its related systems or networks; (d) access, use, or copy any portion of the Software, through the use of bots, spiders, Web crawlers, indexing agents, or other automated devices or mechanisms; (e) create any denial of service with respect to the Software; (f) falsify the origin of Client’s or an Authorized User’s communications, or attempt to do any of the foregoing; or (g) use the Software for any illegal or injurious purpose.

5.5       Internal Monitoring. Please be advised that WBC may monitor Client’s use of and access to the Software to ensure compliance with this Agreement and any other applicable rules, policies, deadlines and instructions. By using the Software, Client expressly consents to such monitoring. If such monitoring reveals possible unauthorized use of the Software, WBC may, among other things, suspend or terminate Client’s, or any Authorized Users’, access to the Software.

5.6       Compliance with Laws. Client is responsible for all activity occurring under any Authorized User Accounts and Client shall abide by all applicable local, state, federal and foreign laws, treaties and regulations in connection with Client’s access to and use of the Software, including those laws related to data privacy, and the transmission of technical or personal data. Client shall not use the Software for any unlawful purpose, and Client will not export, directly or indirectly, the Software to any country for which the United States requires any export license or other governmental approval without first obtaining such license or approval.

5.7       Reliance on Reports. The Software permits Client and its Authorized Users to analyze Client Data and prepare reports comprised of Client Data or based on Client’s analysis of Client Data. Client, not WBC, is responsible for creating each report, analyzing the Client Data contained in each report, and in determining what Client Data to include in a report and how that Client Data will be analyzed and presented. WBC MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING THE ACCURACY, COMPLETENESS OR CONTENTS OF ANY REPORTS OR OTHER OUTPUT GENERATED USING THE SOFTWARE. CLIENT ACKNOWLEDGES AND AGREES THAT ITS USE AND RELIANCE ON REPORTS GENERATED USING THE SOFTWARE IS AT CLIENT’S OWN RISK.

6.          REGISTRATION; ACCOUNTS

6.1       To access and use certain features, functions and services in the Software, Authorized Users must have an account (a “Authorized User Account”). Each Authorized User may only register for one Authorized User Account. In consideration of Client’s access to, and use of, the features, functions and services in the Software, Client will cause each Authorized User to (a) provide accurate, current and complete information  as may be prompted by any registration forms in the Software (“Registration Data”); (b) maintain the security of his or her user identification and password (collectively,  “Login Information”); (c) maintain and promptly update the Registration Data, and any other information the Authorized User provides to WBC through the Software; (d) promptly advise WBC whenever there is a change to his or her contact information or any other information in his or her Authorized User Account; (e) receive communications from WBC electronically; and (f) be fully responsible for all use of his or her Authorized User Account and for any actions that take place using such account and any applicable Login Information.

6.2       Client represents and agrees that all information it provides to WBC in connection with its access to and use of the Software is, and shall be, true, accurate and complete to the best of Client’s knowledge, ability and belief. WBC reserves the right to terminate these Terms, or to refuse, restrict, or discontinue Client’s or any of its Authorized Users’ access to the Software (or any portions, components, modules, or features of the Software) for any reason, or for no reason whatsoever, at any time, without notice or liability.

7.          CLIENT DATA

7.1       License to WBC.  Client grants WBC a non-exclusive, world-wide, royalty-free license to use the data and other information input by Client and its Authorized Users into the Software or otherwise provided to WBC for purposes of performing the services set forth in this Agreement (the “Client Data”). Client will be responsible for obtaining all rights, permissions, and authorizations to provide the Client Data to WBC for use as contemplated under this Agreement. Except for the limited license granted in this Section, nothing contained in this Agreement will be construed as granting WBC any right, title, or interest in the Client Data.  Client  Data shall be deemed Client Confidential Information. Notwithstanding the foregoing, Customer hereby grants WBC a non-exclusive, perpetual, royalty free license to use Aggregate Data for the purpose of further developing and optimizing the Software, including through the development of new and/or expanded features and functionality. For the purposes of this Section, “Aggregate Data” means Customer Data that is combined with other similar data of other customers. Aggregate Data shall not include (directly or by inference) any information identifying the Customer or any identifiable customer or individual.

7.2       Information Security. Consistent with WBC’s then current practices and procedures, WBC will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Client’s Confidential Information and the Client Data.

8.          OWNERSHIP

8.1       WBC IP. The Software contains material that is protected by United States intellectual property laws, including copyright and trade secret law, and by international treaty provisions. All rights not expressly granted to Client under this Agreement are expressly reserved by WBC and its licensors. All copyrights, patents, trade secrets, trademarks, service marks, trade names, moral rights and other intellectual property and proprietary rights in the Software shall remain the sole and exclusive property of WBC or its licensors, as applicable, and this Agreement grants Client no title or rights of ownership in the Software or any subsets or components thereof.

8.2       Client Submissions.  Client or any Authorized User may provide suggestions, ideas, inventions, innovations, improvement or enhancement requests, feedback, recommendations, or other information to WBC regarding the Software, in whatever form, whether or not patentable or copyrightable or made or conceived solely or jointly with others (collectively, “Client Feedback”).  Such Client Feedback is voluntary. WBC may use Client Feedback for any purpose without obligation of any kind, and Client acknowledges and agrees that such Client Feedback shall become the sole property of WBC, and Client, also on behalf of each Authorized User, hereby transfers and assigns all right, title and interest in the Client Feedback exclusively to WBC and any and all related patent, copyrights, trademarks, trade names and other intellectual property rights and applications therefor, in the United States and elsewhere

9.          INDEMNITY

Client agrees to indemnify and hold harmless WBC and WBC’s officers, directors, employees, agents and licensors from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of, or in connection with any claim brought by any third party in connection with or arising out of (a) Client’s and it’s Authorized Users’ access to and use of the Software, (b) the Client Data, or (c) Client’s or its Authorized Users’ violation of this Agreement or its violation of any rights or another. WBC reserves, and Client grants to WBC, the right to assume exclusive defense and control of any matter subject to indemnification by Client. All rights and duties of indemnification that are set forth herein shall survive termination of this Agreement.

10.       WARRANTY DISCLAIMERS

10.1    THE SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND.  WBC EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE/NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  WBC DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY WBC OR WBC’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED HEREIN. CLIENT EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF THE SOFTWARE HEREUNDER IS AT CLIENT’S SOLE RISK.

11.       LIMITATION OF LIABILITY

IN NO EVENT SHALL WBC OR ITS LICENSORS, BE LIABLE TO CLIENT, OR ITS AUTHORIZED USERS, OR ANY THIRD PARTY FOR ANY GENERAL, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THE SOFTWARE, ANY SERVICES RENDERED HEREUNDER, OR THIS AGREEMENT, EVEN IF WBC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF WBC TO CLIENT FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL NOT EXCEED THE TOTAL FEES PAID BY CLIENT HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.

12.       TERM AND TERMINATION

12.1    Term. This Agreement shall be effective as of the date this Agreement was accepted pursuant to the preamble (the “Effective Date”), and shall remain in effect for one (1) year thereafter, unless earlier terminated as provided herein (the “Initial Term”).

12.2    Renewal. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Term”) unless either Party provides notice of termination or non-renewal no less than thirty (30) calendar days prior to expiration of the then-current term.  The Initial Term and any Renewal Terms are referred to herein collectively as the “Term.” 

12.3    Termination for Cause. Either Party may terminate this Agreement upon a material breach of the Agreement by the other, if the breaching Party does not cure the breach within ten (10) calendar days after receipt of written notice from the other Party specifying the breach.  The right of the non-defaulting Party to terminate this Agreement under this Section 12.3 is in addition to all other rights that are available to it under this Agreement, at law, or in equity.

12.4    Effects of Termination. Upon the non-renewal, termination, or expiration of this Agreement for any reason (a) Client’s license to the Software will automatically and immediately terminate and Client shall have no further right to access or use the Software, and (b) Client’s access to the Software may be disabled by WBC without notice. Promptly upon the termination or expiration of this Agreement for any reason, Client shall immediately cease its use of the Software. Termination of this Agreement shall be in addition to and not in limitation of any other rights and remedies to which either Party is or may become entitled.

13.       FEES, EXPENSES AND TAXES

13.1    Fees.  Client shall pay the license and other fees (“Fees”) set forth in the applicable website order form. WBC may, in its discretion, increase the Fees for any Renewal Term by giving notice thereof to Client no less than sixty (60) calendar days prior to the start of such Renewal Term. Client acknowledges and expressly agrees that WBC may charge the credit card on file for Client for the amount of Fees for any Renewal Term if Client does not give notice of no-renewal or termination within the time period set forth in Section 12.2 (Renewal) Fees are exclusive of taxes, including sales, use, excise, value added and similar taxes or charges imposed by any government authority.  Client is responsible for payment of the foregoing (with the exception of any WBC income or employee taxes) and such charges will be paid by Client to WBC in addition to the fees for the Software.

13.2    Due Date; Late Payments.  All amounts to be paid by Client hereunder shall be due and payable thirty (30) calendar days after Client’s receipt of the invoice therefore. All payments not made by Client when due shall be subject to late charges of the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. Client’s failure to pay fees when due shall be automatically deemed a material breach of this Agreement.

14.       GENERAL

14.1    Waiver, Amendment Or Modification. The waiver, amendment, or modification of any provision of this Agreement or any right, power, or remedy hereunder shall not be effective unless made in writing and signed by the Party against whom enforcement of such waiver, amendment, or modification is sought. The terms of this Agreement shall not be amended or changed by the terms of any purchase order or acknowledgement even though WBC may have accepted or signed such documents.

14.2    Notice. All notices, demands, or consents given under this Agreement will be in writing and will be deemed given when delivered personally, or three (3) days after deposit in the mail (certified or registered mail), or one (1) day after being sent by overnight courier, to the receiving Party at the address set forth in this Agreement or at such other address given by either Party to the other in writing.

14.3    Entire Agreement. This Agreement, together with the Exhibits attached hereto, constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties. In the event of any conflict between the body of this Agreement and any Exhibits, the terms and provisions of this Agreement shall control.

14.4    Assignment. Neither Party shall assign this Agreement without the written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement, without the other Party’s consent, to any affiliate or subsidiary, or in the event of a merger, acquisition, or sale of all or substantially all of its assets.

14.5    Non-Exclusive Relationship. Notwithstanding anything to the contrary, this Agreement shall be non-exclusive in nature, and nothing in this Agreement shall be construed as preventing WBC from performing the same or similar services (or products resulting from such services) for other third parties or for itself and its affiliates.

14.6    Governing Law; Severability. The validity, construction and performance of this Agreement and the legal relations among the Parties to this Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin, excluding that body of law applicable to choice of law. The parties hereby submit to the jurisdiction of the federal and state courts in the Western District of Wisconsin. If any provision of this Agreement or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall continue in full force and effect.

14.7    Relationship Of The Parties. WBC is an independent contractor under this Agreement, and nothing herein shall be construed to create a partnership, joint venture, or agency relationship between the Parties hereto.

14.8    Survival. The following Sections shall survive expiration or termination of this Agreement: 5.7 (Reliance on Reports), 7.1 (License to WBC), 8.2 (Client Submissions) , 9 (Indemnity), 10 (Warranty Disclaimers), 11 (Limitation of Liability), 12.4 (Effects of Termination) 14 (General), and any other provision the Parties reasonably contemplate as remaining in effect after expiration or termination.

14.9    Force Majeure. Except for Client’s payment obligations, neither Party will be liable for any failure or delay in performance under this Agreement which is due to any event beyond the reasonable control of such Party, including without limitation, fire, explosion, unavailability of utilities or raw materials, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments, or government instructions.