MASTER SOFTWARE LICENSE AGREEMENT

Transcription

1 MASTER SOFTWARE LICENSE AGREEMENT This Master Software License Agreement (the Agreement ) is made by and between AvePoint, Inc., a Delaware company, with offices at 3 Second Street, Ste. 803, Jersey City, New Jersey ( Licensor ), and the State of Wisconsin at 101 E. Wilson Street, Madison, WI ( State ) or entity using Licensor s Licensed Property, as defined below, ( Authorized User ). This Agreement is effective immediately upon the date of the last signatory (the Effective Date ). WHEREAS, Licensor has developed and is the owner of certain Software (as defined below); WHEREAS, Authorized User desires a non-exclusive license to use the Software; and WHEREAS, Licensor is willing to grant such a license on the terms and conditions set forth below. NOW, THEREFORE, in consideration of the foregoing and of the mutual promises contained in this Agreement, Licensor and the State agree as follows: 1. DEFINITIONS For purposes of this Agreement, 1.1 Agency or State Agency means an office, department, agency, institution of higher education, association, society or other body in the State of Wisconsin government created or authorized to be created by the State Constitution or any law, which is entitled to expend moneys appropriated by law, including the legislature and the courts. 1.2 Agent means the component of the Software that interfaces and communicates with the SharePoint Server or, in the case of migration, communicates with the applicable server. 1.3 Authorized Users shall mean a State Agency or a Municipality that may purchase Licensed Software, Subscription Software and/or Support Services pursuant to this Agreement, and those consultants who have agreed to maintain the Licensed Property in confidence and use it only for the benefit of Authorized User. 1.4 Documentation shall mean any description of the Software s specifications, features, interface, operating environment, requirements and uses, including any user instructions, installation instructions or other instructional material about the proper operation of the Software. 1.5 Effective Date shall have the meaning set forth in the preamble to this Agreement. 1.6 Licensed Property shall mean the Software and the Documentation. 1.7 Municipality includes a county, city, village, town, school district, federally recognized Indian tribe, board of school directors, sewer district, drainage district, vocational, technical, and adult education district or other public or quasi-public corporation, board, or other body having authority to award public contracts within the State. 1.8 Network shall mean one or more servers of Authorized User. 1.9 Person means any individual, corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or political subdivision thereof) or other entity of any kind. 1

2 1.10 Software means either (i) for Licensed Property that is classified as part of the DocAve platform, the object code (machine readable) version of the DocAve platform including the DocAve Manager, Media Services, and Agent components as identified on any invoice or purchase orders, and any ancillary data files, modules, libraries, tutorial or demonstration programs or other components and copies of any of the foregoing or portions thereof. DocAve Manager is the graphical interface and control services that runs the DocAve platform including but not limited to the DocAve auditing, search, web and control services. Media Services is the component of the DocAve platform that controls storage of data or (ii) for Licensed Property that is classified as not being part of the DocAve platform, the object code (machine readable) version of the utility, tool, or component as identified on any invoice or purchase orders, and any ancillary data files, modules, libraries, tutorial or demonstration programs or other components and copies of any of the foregoing or portions thereof. Classifications of Licensed Property shall be determined by AvePoint in its sole discretion SharePoint Server means any server, virtual or physical, running an operating system and also running a service or component of the Microsoft SharePoint application. Examples of SharePoint Servers include but are not limited to the following: (i) SharePoint Web Server means any server that is running the Windows SharePoint Services Web Application service. (ii) User Facing Front-end Web Servers means any SharePoint Web Servers that process User Requests, as shown in Microsoft s Office Server 2007 Planning Guide, available from the following link: (iii) SharePoint Application Server means any server running Excel Calculation Services, Query and Index Services, Windows SharePoint Services Search, Office SharePoint Server Search, or other SharePoint application services. (iv) SQL Server running SharePoint means any server running the Windows SharePoint Services Database Service or that is hosting a databases required for the operation of Microsoft SharePoint State means the State of Wisconsin. 2. GRANT OF LICENSE 2.1 Grant; Restrictions. Subject to the observance by Authorized User of the terms and conditions of this Agreement, Licensor hereby grants to Authorized User and Authorized User hereby agrees to pay for a non-exclusive, non-transferable (except as set forth in Section 14.12), fully paid, royalty free limited license to use the Licensed Property solely for operating the business of Authorized User (the License ) for the Licensed Property set forth on the invoice or purchase order in the following manner: (i) for Licensed Property that is classified as Licensed per Server, one Agent or one license per SharePoint Server in each SharePoint environment in which the Software is run; (ii) for Licensed Property that is classified as Licensed per Front-End Web Server, one Agent or one license per User Facing Front-end Web Server in each SharePoint environment in which the Software is run; (iii) for Licensed Property that is classified as Licensed per Usage, the license granted hereunder is based on the size or amount of data processed by the Software and is limited to the amount specified on the applicable invoice or purchase orders; and (iv) for License Property that is classified Licensed per Organization, one License for use only within Authorized User s Network (excluding Networks of other Authorized Users). Classifications of Licensed Property shall be determined by AvePoint in its sole discretion. Authorized User may modify, and create derivative works based upon, the Licensed Property solely for the purpose of operating the Networks; provided, that, any such modifications and/or derivative works shall be Licensed Property subject to the terms and conditions of this Agreement. Authorized User may grant sublicenses hereunder solely to other Authorized Users, but only in accordance with and subject to the restrictions of Section Any use of the Licensed Property not expressly permitted by this Agreement is prohibited. Without limiting the generality of the foregoing, Authorized User shall not: (a) permit persons other than Authorized Users to access and use the Licensed Property (or any part thereof); or 2

3 (b) use the Licensed Property (or any part thereof) in breach of any applicable laws, regulations or market conventions. 2.2 Audit. Licensor may, with reasonable notice and at any time during reasonable business hours, not more than once every twelve (12) months, either on its own or through its duly authorized representative, conduct an audit of the use by Authorized User of the Software to ensure that Authorized User is complying with the terms of this Agreement. 2.3 No License to Other Products. The License granted above is limited to only the Licensed Property. It is Authorized User s responsibility to evaluate whether licenses to other products are necessary or desirable in order to utilize the licenses granted herein. Licensor makes no representations or warranties with regard to the necessity of licenses to other products. 2.4 No Services. Except for free over the phone technical support for the first sixty (60) days following delivery of the Licensed Property or as may otherwise be expressly provided in writing, Licensor is under no obligation to provide any services to Authorized User with respect to the Licensed Property (including, without limitation, any installation of the Software, training or maintenance). In no event is Licensor required to provide Authorized User with any enhancements, updates, or upgrades to the Software. If, however, Licensor furnishes to Authorized User any enhancements, updates, or upgrades to the Software, Authorized User s use of such enhancements, updates, or upgrades shall be subject to the terms and conditions of this Agreement. 2.5 Payments. The initial payment as provided on a written invoice by Licensor to Authorized User is payable within 30 days of the date of receipt of a properly submitted invoice. Whenever possible, the State of Wisconsin shall be entitled to purchase software from a reseller on the existing Microcomputer Software Contract that includes payment terms. 2.6 Late Fees. Any amounts not paid when due shall bear interest from the due date at the rate of 1½% per month or the highest rate of interest permitted by law, whichever is lower. If Authorized User fails to pay the sums provided for in this Agreement when due, then Licensor may terminate this Agreement as per Section TAXES 3.1 Applicable Taxes. The State and Authorized Users represent to Licensor that they are tax exempt entities. 4. DELIVERY AND/OR ACCESS TO THE LICENSED PROPERTY 4.1 Delivery of Documentation. Licensor shall furnish Authorized User one (1) master copy of the Documentation, if any. The parties agree that Licensor s obligation to deliver Documentation is limited only to such Documentation that exists for delivery by Licensor to Authorized User without further investigation in whatever form it exists at the time of delivery of the Documentation. Upon delivery of any such Documentation, Licensor shall have no obligation to retain any copies of materials. 4.2 Delivery of Software. Licensor shall make available to Authorized User one (1) master copy of the Software. 5. TERM This License Agreement shall remain in full force and effect from the date first written above unless terminated pursuant to Section 11 hereof. 3

4 6. PROPERTY RIGHTS; PROHIBITIONS AS TO LICENSED PROPERTY 6.1 Property Rights. Authorized User acknowledges that as between Licensor and Authorized User: (i) Licensor owns the full right, title and interest in and to the Licensed Property and all copies thereof, including all associated patents, copyrights, trademarks, trade names, trade secrets and all other intellectual property rights, and any and all alterations, adaptations, modifications, changes to the Licensed Property or derivative works based thereon whether created by Authorized User or Licensor or their respective agents; (ii) all right, title and interest in and to the Licensed Property and all copies thereof, including all associated patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights, and any and all alterations, adaptations, modifications, changes to the Licensed Property or derivative works based thereon whether created by Authorized User or Licensor or their respective agents, are, and shall at all times remain, the exclusive property of Licensor; and (iii) Authorized User shall have no right or interest as to the Licensed Property or any copies thereof, including all associated patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights, and any and all alterations, adaptations, modifications, changes to the Licensed Property or derivative works based thereon whether created by Authorized User or Licensor or their respective agents, except as a Authorized User as expressly set forth in this Agreement. 6.2 No Reproduction by Authorized User. The Licensed Property may not be copied or duplicated by Authorized User, in whole or in part, except for use by Authorized User in accordance with the terms of this Agreement, which shall include, without limitation, the right to make copies of the Software as reasonably necessary for back-up (disaster recovery) purposes. Authorized User shall reproduce and include all copyright or other proprietary rights notices from the then current version of the Licensed Property on any copy (whether complete or partial) of the Licensed Property. Without limiting the foregoing, Authorized User shall not conceal, remove or alter any title, trademark, copyright, proprietary or restricted rights notices incorporated in the Licensed Property (or any part thereof). The original and all copies of the Software which are made or used by or in the possession of Authorized User shall be and shall remain the property of Licensor. 6.3 Trade Secrets. Authorized User agrees that the Licensed Property and all associated patents, copyrights, trademarks, trade names, trade secrets and other intellectual property rights are the exclusive property, and constitute a valuable trade secret, of Licensor. Authorized User agrees not to disclose any of Licensor s trade secrets, including without limitation the Software (or the source code therefor). Authorized User shall not disclose, disseminate, transmit via any medium whatsoever, or make available the Licensed Property, or any derivation thereof, to any third party without Licensor s prior written consent. Without limiting the foregoing and except provided in Section 6.1, Authorized User shall not, directly or indirectly, commercialize, sell, sublicense, lease, rent, distribute, or otherwise transfer the Licensed Property, or any rights therein, to any other person or entity. 7. NO WARRANTY AND DISCLAIMER 7.1 Licensor represents and warrants that it has the right and authority to grant the License hereunder with respect to the Licensed Property. 7.2 Except as set forth in Section 7.1 above, Licensor makes no representations or warranties to Authorized User in connection with this Agreement or the Licensed Property. THE LICENSED PROPERTY, INCLUDING WITHOUT LIMITATION THE SOFTWARE, IS PROVIDED TO LICENSEE ON AN AS IS WHERE IS BASIS WITHOUT WARRANTY AND LICENSEE S USE THEREOF IS AT ITS OWN RISK. LICENSOR DOES NOT MAKE, AND HEREBY SPECIFICALLY DISCLAIMS, AND LICENSEE RELEASES AND WAIVES, ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND PURPOSE, NON-INFRINGEMENT, TITLE, OR ANY WARRANTY ARISING UNDER STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, 4

5 USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE LICENSED PROPERTY IS ACCURATE OR WILL MEET LICENSEE S REQUIREMENTS, WILL OPERATE IN ANY COMBINATION THAT MAY BE SELECTED FOR USE BY LICENSEE OR IN COMBINATION WITH OTHER SOFTWARE, OR WILL OPERATE UNINTERRUPTED OR ERROR FREE. FURTHERMORE, LICENSOR DOES NOT WARRANT THAT ANY SOFTWARE ERRORS, DEFECTS OR INEFFICIENCIES WILL BE CORRECTED, NOR DOES LICENSOR ASSUME ANY LIABILITY FOR FAILURE TO CORRECT ANY SUCH ERROR, DEFECT OR INEFFICIENCY. LICENSOR MAKES NO WARRANTY, AND LICENSEE ASSUMES THE ENTIRE RISK, AS TO THE INTEGRITY OF ANY DATA AND THE RESULTS, CAPABILITIES, SUITABILITY, USE, NON-USE OR PERFORMANCE OF THE LICENSED PROPERTY. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR ANY DAMAGES RESULTING FROM OR RELATED TO THE USE OR PERFORMANCE OF THE LICENSED PROPERTY. 8. LIMITATION OF LIABILITY EXCEPT AS PROVIDED IN SECTION 9 HEREOF, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY, ANY PARTY CLAIMING ON BEHALF OF OR THROUGH THE OTHER PARTY, OR ANY OTHER THIRD PARTY RESULTING FROM OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR PROFITS, BUSINESS INTERRUPTION, DAMAGE OR LOSS OR DESTRUCTION OF DATA OR LOSS OF USE OF THE LICENSED PROPERTY, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 9. INDEMNITY 9.1 By Licensor. Licensor agrees to indemnify Authorized User, its officers, directors, shareholders, employees, agents, attorneys, successors and assigns (the Authorized User Indemnitees ) against any Claim (as defined above) brought or threatened against Authorized User by reason of or resulting from the infringement of any United States patent or United States copyright of a third party caused solely by Authorized User s authorized use of the unmodified version of the Licensed Property delivered to Authorized User by Licensor. In the event Authorized User has any knowledge of any Claim brought or threatened against Authorized User for which Licensor has an indemnification obligation hereunder, Authorized User shall promptly notify Licensor. Licensor agrees to assume the defense of such Claim with counsel of Licensor s choice, and indemnify and hold harmless the Authorized User Indemnitees from and against any and all damages, costs (including reasonable professional and/or attorneys fees), claims, demands, losses, liabilities, fines, penalties and expenses of any kind or nature whatsoever incurred by Authorized User resulting directly or indirectly from any such Claim. Notwithstanding anything to the contrary contained herein, Licensor shall be under no obligation to replace or modify any infringing (or allegedly infringing) Licensed Property. If any Claim is brought or threatened that gives rise to an indemnity obligation by Licensor in accordance with the foregoing, Licensor shall, however, provide to Authorized User at no additional charge and with no representations or warranties whatsoever, any modification or workaround owned by Licensor that Licensor intends to use for its own purposes to replace any such infringing or allegedly infringing portion of the Licensed Property, if and only if such modification or workaround is in the possession of Licensor and can be transferred to Authorized User at no cost to Licensor; provided that, except for the indemnity obligation set forth above, nothing contained herein imposes any obligation on Licensor to actually develop, create, commission or deliver any software, modules, modifications, adaptations, or workarounds or to undertake any actions whatsoever to actually modify or replace any infringing or allegedly infringing portion of the Licensed Property, either for Licensor s own account or for the benefit of Authorized User. 5

6 Authorized User shall cease any and all use of any infringing (or allegedly infringing) Licensed Property upon Licensor s written request. 10. PROTECTION OF CONFIDENTIAL INFORMATION 10.1 Confidential Information. Confidential Information means any information or data of a confidential or commercially sensitive nature including, without limitation, any "know-how", trade secrets, technical processes, inventions, equipment specifications, equipment designs, plans, drawings, research projects, client lists, subcontractor or consultant contracts, pricing policies, operational methods, marketing plans and strategies, project development, acquisition and bidding techniques and plans, business acquisition plans, and new personnel acquisition plans, whether in written or oral form, and whether furnished before or after the Effective Date, and all notes, analyses, compilations, studies, or other documents, prepared by either AvePoint or the Recipient, which contain or otherwise reflect or are prepared based on any such information, but shall exclude any part of such disclosed information or data which: i) is or becomes common knowledge without breach of this Agreement by the party receiving the Confidential Information (the Recipient ); ii) the Recipient can show was in its possession or known to it by being in its use or being recorded in its files or computers or other recording media prior to receipt from the party disclosing the Confidential Information (the Disclosing Party ); iii) the Recipient obtains or has available from a source other than the Disclosing Party without breach by the Recipient or such source of any obligation of confidentiality owed to the Disclosing Party; or iv) is required by operation of law Handling of Confidential Information. The Recipient shall maintain the Confidential Information in confidence and shall exercise in relation to such Information no lesser security measures and degree of care than those which the Recipient applies or would apply to its own Confidential Information which the Recipient warrants as providing adequate protection against unauthorized disclosure, copying and use. The Recipient shall ensure that disclosure of such Confidential Information is strictly limited to their personal use only. Copies or reproductions shall not be made except to the extent reasonably necessary under the circumstances and all copies made shall be the property of the Disclosing Party. All Confidential Information and copies thereof shall be returned to the Disclosing Party within 14 days of the date of a written request to do so. The Recipient acknowledges that it is aware that unauthorized disclosure of Confidential Information of the Disclosing Party may be highly prejudicial to its interests, an invasion of privacy, and an improper disclosure of trade secrets Limitations and warranty of Confidentiality The Recipient shall: (a) not divulge the Confidential Information, in whole or in part, to any third party; (b) use the same only for the purpose for which the Disclosing Party intended; and (c) make no commercial use of the same or any part of it without the prior written consent of the Disclosing Party. Notwithstanding the foregoing, the Recipient shall be entitled to make any disclosure of the Confidential Information required by law provided that it gives whenever possible the Disclosing Party not less than 7 day s notice of such disclosure. In the event that such disclosure becomes necessary pursuant to this Section 10.3, the Recipient hereby agrees to request such court of competent jurisdiction to suppress the Confidential Information from the public record. The Disclosing Party reserves all rights in the Confidential Information and no license is granted or to be implied from this Agreement, whether directly or indirectly under any patent, invention, discovery, copyright or any other Intellectual Property or otherwise. The Disclosing Party warrants its right to disclose the Confidential Information to the Recipient and to authorize the use of the same for the purpose for which the Disclosing Party disclosed the Confidential Information. 6

7 11. TERMINATION OF AGREEMENT 11.1 Termination. This Agreement and the License and other rights granted hereunder may be terminated immediately by Licensor in the event Authorized User breaches any of the provisions of this Agreement and does not remedy such breach within thirty days of receipt of notice from Licensor declaring and setting forth the nature of such breach. Notwithstanding the foregoing, there shall be no cure period for any breach by Authorized User of Section 6 or Section 10 hereof, and if Authorized User breaches Section 6 or Section 10 hereof, Licensor may, in its sole discretion, terminate this Agreement and the License and other rights granted hereunder by providing Authorized User five (5) days written notice Effect of Termination. Immediately upon any termination, cancellation or expiration of this Agreement or of any License granted hereunder for any reason: (a) all rights and Licenses granted to Authorized User under this Agreement shall cease and terminate and Authorized User shall have no right thereafter to use, and shall cease the use of, the Licensed Property or any portion thereof; and (b) thereof) to Licensor. Authorized User shall return the Licensed Property (including all copies 11.3 Survival. The provisions of Section 3, Section 6, Section 7, Section 8, Section 9, Section 10 and Section 11 shall survive the termination, cancellation or expiration of this Agreement for any reason. 12. FORCE MAJEURE Neither party shall be liable to the other party for any delay or failure in the performance of its obligations under this Agreement or otherwise if such delay or failure arises from any cause or causes beyond the control of such party including, without limitation, labor shortages or disputes, strikes, other labor or industrial disturbances, delays in transportation, acts of God, floods, lightning, fire, epidemic, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, an act of civil or military authority, sabotage, explosives, riots, insurrections, embargoes, blockades, actions, restrictions, regulations or orders of any government, agency or subdivision thereof, or failure of suppliers. 13. EXPORT REGULATIONS; U.S. GOVERNMENT RESTRICTIONS 13.1 Export Regulations. Authorized User acknowledges that the Licensed Property and any direct products thereof may be subject to United States export laws, statutes and regulations, and that Authorized User will at all times comply with the provisions of such laws, statutes and regulations including obtaining any necessary or required licenses. Authorized User shall not export or re-export or otherwise transmit, directly or indirectly, the Licensed Property or any direct products thereof into, or use the Licensed Property or any direct products thereof in, any country prohibited or restricted under United States export laws, statutes or regulations or any other applicable laws. 14. MISCELLANEOUS PROVISIONS 14.1 Promotional Advertising / News Releases: Reference to or use of the State of Wisconsin, any of its departments, agencies or other subunits, or any state official or employee for commercial promotion is prohibited. News releases pertaining to this Agreement shall not be made without prior written approval of the State s Contract Administrator. Release of broadcast s pertaining to this Agreement shall not be made without prior written authorization of the Contract Administrator. 7

8 14.2 Third-Party Contractors/Agents. The Authorized User shall have the right to allow the Authorized User s third party agents to use the software for the Authorized User s internal purposes as long as the Authorized User ensures that the agents use of the Licensed Property is in accordance with the terms of this Agreement Third Party Software. In the event Licensor provides any third party software to Authorized User in connection with this Agreement, the following shall apply: (1) Licensor shall specifically identify in writing all third party software associated with the software (2) Licensor shall attach written copies of all third party license agreements applicable to Authorized User; and (3) Licensor warrants that (i) it has the right to license third party software licensed to Authorized User under this Agreement; (ii) to the best of Licensor s knowledge, the third party software does not, and the use of the third party software by Authorized User as contemplated by this Agreement, will not infringe any intellectual property rights of any third party; and (iii) unless specifically provided otherwise herein, Authorized User shall have no obligation to pay any third party fees, royalties, or other payments for Authorized User s use of any third party software in accordance with the terms of this Agreement. Authorized User shall support and maintain all such third party software to the same extent as the Licensed Software Virus Warranty. Licensor will use reasonable efforts to test software for viruses. Licensor will also maintain a master copy of the appropriate versions of the software, free of Viruses. If the Authorized User believes a Virus may be present in the delivered software, then upon the Authorized User s request, Licensor will provide a master copy to the Authorized User for comparison with and correction of the Authorized User s copy of the software Viruses and Disabling Mechanisms. Licensor shall use commercially reasonable measures to screen the Licensed Software to avoid introducing any virus or other destructive programming that are designed to permit unauthorized access or use by third parties to the software installed on Authorized User s systems. Licensor shall not insert into the Licensed Software any code or other devise that would have the effect of disabling or otherwise shutting down all or any portion of the Licensed Software. Licensor shall not invoke such code or other device at any time, including upon expiration or termination of the Agreement for any reason. The Licensor shall not include any Induced Inhibiting Code (or IIC) or any other inhibitor data or software licensed under this Agreement. IIC is defined as any deliberately included application or system code that will degrade performance, result in inaccurate data, deny accessibility, or adversely effect, in any way, programs or data or use of the system. Licensor represents, warrants and covenants that the licensed software and all software upgrades shall not contain any computer code that would disable the licensed software or impair in any way its operation based on the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date or numbers or other similar self-destruct mechanisms (sometimes referred to as "time bombs," "time locks," or "drop dead" devices) or that would permit Licensor to access the licensed software to cause such disablement or impairment (sometimes referred to as a "trap door" device) Obligations. The Department of Administration of the State is not responsible for any obligations created by any State Agency. The State is not responsible or liable for any obligations created by any municipality. By placing an order with the Licensor or an authorized reseller, the Authorized User shall be bound by the terms and conditions of this Agreement Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and supersedes, supplants, and renders null and void any and all prior and contemporaneous negotiations, discussions, proposals, agreements, understandings, representations or communications, oral or written, of the parties hereto with respect to the subject matter hereof Binding Effect. This Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. 8

9 14.9 Amendment. This Agreement may be amended only by a writing duly executed by the authorized representatives of the parties hereto which makes specific reference to this Agreement Notices. All notices, requests, demands, consents, authorizations, claims, and other communications hereunder must be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (a) upon confirmation of facsimile, (b) one (1) business day following the date sent when sent by overnight delivery and (c) five (5) business days following the date mailed when mailed by registered or certified mail return receipt requested and postage prepaid at the addresses set forth in the preamble to this Agreement. Any party may send any notice, request, demand, claim, or other communication hereunder to the intended recipient at the address set forth above using any other means (including personal delivery, expedited courier, messenger service, telecopy, telex, ordinary mail, or electronic mail), but no such notice, request, demand, claim, or other communication shall be deemed to have been duly given unless and until it actually is received by the intended recipient. Any party may change the address to which notices, requests, demands, claims, and other communications hereunder are to be delivered by giving the other parties notice in the manner herein set forth Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin without giving effect to any choice or conflictof-law provision or rule that would cause the application of the laws of any jurisdiction other than Wisconsin Assignment; Sublicense. Authorized User may not, directly or indirectly, sell, assign, sublicense, lease, rent, distribute, or otherwise transfer the License, the Licensed Property, or any rights therein, or any rights or obligations under this Agreement, to any other person or entity, unless Authorized User first obtains the written consent of Licensor, which consent shall be granted or denied in Licensor s sole reasonable business judgment; except, that, Authorized User may, upon prior written notice to Licensor but without Licensor s consent, (a) assign all of its rights and obligations under this Agreement to another Authorized User and (b) sublicense the License to any Authorized User for the operation of a Network owned by such Authorized User. Authorized User agrees that any sublicense granted to an Authorized User hereunder shall (i) be substantially in the form hereof, (ii) be on terms no less restrictive that those herein, and (iii) contain the following additional limitations: (X) such Authorized User shall not have any right to, directly or indirectly, sell, assign, sublicense, lease, rent, distribute, or otherwise transfer the License, the Licensed Property, or any rights therein, or any rights or obligations under this Agreement, and (Y) such Authorized User shall have access to and the right to use only the object code version of the Software, and shall not have access to or rights to the source code version of the Software or the right to modify the Licensed Property or create derivative works based thereon Waiver. No party to this Agreement shall be deemed to have waived any of its rights, powers or remedies under this Agreement unless such waiver is expressly set forth in a writing signed by the waiving party. No written waiver of any provision of this Agreement shall be deemed to be, or shall constitute, (i) a waiver of any other provision of this Agreement, whether or not similar, or (ii) a continuing or subsequent waiver of the same or another provision of this Agreement. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of any such provisions, or in any way affect the validity of either party to enforce each and every such provision thereafter Captions. The captions and headings of Sections and subsections contained in this Agreement are provided for convenience of reference only and shall not be considered a part hereof for purposes of interpreting this Agreement, and, therefore, such captions and headings do not define, modify, limit, describe or affect in any way the meaning or intent of this Agreement or any of its terms or provisions. 9

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