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IML Database Management/Hosting

The Parties to this License Agreement Relating To Database Management, hereinafter called "Agreement," are WISNET.COM LLC, a limited liability company organized according to the laws of the State of Wisconsin and having a place of business at Fond du Lac, Wisconsin, hereinafter called WISNET.COM; and the Client, defined as any individual, web designer, or third-party consultant granted permissible access by Client or WISNET.COM, hereinafter called CLIENT.

RECITALS:

  • A. WISNET.COM is in the business of, among other things, developing computer software that enables other parties to interactively manage their databases on web sites hosted by WISNET.COM. A representative computer program developed and used by WISNET.COM in its business is entitled Information Markup Language, hereinafter called "IML Program." The IML Program is proprietary to WISNET.COM. The IML Program is used by WISNET.COM in conjunction with its web site hosting services to enable other parties to interactively manage their databases on-line. The combination of the IML Program and the WISNET.COM web hosting services that enable others to interactively manage their data bases on-line is hereinafter called "IML Services".
  • B. WISNET.COM has previously designed a web site for CLIENT, and CLIENT has implemented the use of such web site.
  • C. WISNET.COM has agreed to provide web site hosting services that utilize the IML Program, i. e., to provide IML Services, to CLIENT as more specifically set forth hereinafter.
  • D. WISNET.COM has also agreed, if requested, to provide consulting services to CLIENT according to the terms and conditions set forth hereinafter.
  • E. WISNET.COM has also agreed, if requested, to provide additional web site design services to CLIENT according to the terms and conditions set forth hereinafter.
  • F. So that the presently existing friendly and professional relationship between the Parties continues but on a more formal basis than presently exists, the Parties desire to memorialize the understandings presently existing between them regarding the WISNET.COM IML Services, web site hosting, and consulting services.

NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein, the Parties hereby agree as follows:

1. Web Site Hosting Services

  • a. WISNET.COM agrees to provide IML Services to CLIENT. The IML Services shall include a server or space on a shared server; connection of the server to CLIENT'S high speed Internet connection; backup of the server's hard disk and other maintenance of the server; domain name, e-mail, and file transfer services; automated server monitoring; and limited log file generation and access. Any and all equipment provided by WISNET.COM under this provision shall remain its property.
  • b. The services and software offered and provided by WISNET.COM are subject to change and limitation at its discretion. Any pricing schedule is subject to change and modification at the sole discretion of WISNET.COM, provided, however, that no change to any services or pricing shall be effective until WISNET.COM has notified CLIENT of such change. Notification may be made electronically or by mail. Such changes shall be effective upon receipt of the notification by CLIENT.
  • c. Notwithstanding the foregoing, if WISNET.COM has reason to believe that a change is necessary to preserve proper security or functioning of CLIENT'S system, WISNET.COM is allowed to make such change, and such change will become effective without notification to CLIENT.
  • d. If CLIENT objects to any change in service or pricing schedule, it shall be entitled to cancel its account with WISNET.COM. Any such cancellation shall be effective on receipt by WISNET.COM of notice by CLIENT to cancel its account. Such notice of cancellation may be sent to WISNET.COM electronically or by mail. Continued use by CLIENT of the WISNET.COM services after receiving notice of any changes in service or pricing schedule shall constitute acceptance by CLIENT of the changed service and/or pricing schedule.
  • e. WISNET.COM agrees to provide to CLIENT reasonable amounts of consultation via telephone and/or electronic mail in the use of the IML Services that are maintained and/or controlled by WISNET.COM.
  • f. WISNET.COM hereby warrants and represents that the IML Services specifically referred to in Section a. above are fit for the particular purpose for which CLIENT has contracted to purchase the IML Services.
  • CLIENT has relied on the representation that the IML Services will fit the particular purposes required by CLIENT, thereby resulting in this Agreement.
  • g. With the exception of the express warranty that the IML Services are fit for the particular purpose for which CLIENT purchased such services, WISNET.COM expressly disclaims any other liability related to IML Services. CLIENT agrees to hold WISNET.COM harmless and release it from any such other liability. Except for the warranty that the IML Services are fit for the particular purpose for which CLIENT purchased such services, and except for damages sustained by CLIENT because of WISNET.COM's gross negligence, willful misconduct, or infringement, CLIENT agrees to hold WISNET.COM harmless from all costs, expenses including reasonable attorney fees, or liability resulting from any claim based on CLIENT's use of the IML Services.
  • h. CLIENT agrees to adhere to WISNET.COM's "Acceptable Use Policy," a copy of which is attached hereto as Exhibit A and incorporated herein by reference. The Parties agree that WISNET.COM may change its "Acceptable Use Policy" from time to time. CLIENT agrees to adhere to any such changes, provided, however, that it is notified of the changes prior to their effective date. Notification may be sent electronically or by mail.

2. Web Site Design

  • a. WISNET.COM has designed a web site that CLIENT is presently utilizing in its banking operations, and for which web site WISNET.COM is providing IML Services. CLIENT may request WISNET.COM to update, modify, or make changes to the web site as CLIENT may determine in its sole and absolute discretion. CLIENT agrees to provide WISNET.COM with specifications relative to any changes to the web site. WISNET.COM shall be given the opportunity to submit a written proposal to CLIENT relating the costs and charges required to implement such changes. CLIENT shall have the sole discretion and option to retain WISNET.COM for carrying out the changes. If CLIENT elects to utilize WISNET.COM for the web site changes, the Parties agree to enter into a separate written contract setting for the specific provisions with respect to the required work.
  • b. The Parties agree that all aspects of the web site designed by WISNET.COM that may be subject to the copyright laws of the United States shall be deemed to be "works for hire." Upon payment of the amounts due to WISNET.COM for the design of the web site, CLIENT shall be deemed the author and owner of the web site as well as of the copyright in the underlying audiovisual works. In the event, and to the extent that, the web site, or any portion thereof, is found as a matter of law not to be a work for hire, WISNET.COM hereby agrees to assign its entire right, title, and interest in the copyright of the web site, or any portion thereof, to CLIENT.
  • c. WISNET.COM shall, at no cost to CLIENT, assist in the preparation of and execute any documents that CLIENT may reasonably request pertaining to the copyright to the web site. CLIENT shall reimburse WISNET.COM for reasonable out-of-pocket expenses incurred by WISNET.COM under this paragraph.
  • d. CLIENT shall have sole discretion whether or not to register the copyright to the web site it the U. S. Copyright Office. CLIENT shall bear the full cost of any registration process.
  • e. WISNET.COM warrants that the web site it designed for CLIENT does not infringe any copyright of any third party. WISNET.COM agrees to indemnify and hold CLIENT harmless from any costs, expenses including attorney fees, or liability arising from any claim that the web site and its design infringe the intellectual property rights of any third party.
  • WISNET.COM further agrees to defend CLIENT with respect to any such claims, law suits, and other liability arising out of and from CLIENT'S use of the web site. Subject to approval by CLIENT, WISNET.COM may retain counsel of its choice under this paragraph.
  • f. CLIENT warrants that all text, graphics, photos, designs, trademarks, and other materials provided by CLIENT to WISNET.COM for the design of the CLIENT web site are owned by or licensed to CLIENT. CLIENT agrees to indemnify and hold WISNET.COM harmless from any claim that the text, graphics, photos, designs, trademarks, or other materials provided by CLIENT infringe the intellectual property rights of any third party. CLIENT further agrees to defend WISNET.COM with respect to any such claims, law suits, and other liability arising out of and from WISNET.COM's design of the web site. Subject to approval by WISNET.COM, CLIENT may retain counsel of its choice under this paragraph.

3. The Parties agree that CLIENT obtains by this Agreement only the right and license to use the IML Services. No rights or ownership of the intellectual works or properties underlying either the IML Program or the IML Services are granted to CLIENT by this Agreement. The Parties further agree that any prior use of the IML Program or IML Services by CLIENT did not convey to CLIENT any rights or ownership of the intellectual works or properties underlying either the IML Program or the IML Services.

4. WISNET.COM warrants that IML Services will continue to conform to all specifications and documentation published by WISNET.COM, pertaining to IML Services. WISNET.COM shall not be liable for any consequential or special damages because of any real or perceived failure of IML Services to perform to the satisfaction of CLIENT, and CLIENT expressly agrees to hold WISNET.COM harmless for any such consequential or special damages.

5. WISNET.COM hereby grants any and all licenses to CLIENT that may be required to use the IML Services. WISNET.COM warrants that the IML Services licensed to CLIENT were developed or otherwise lawfully obtained by WISNET.COM and that WISNET.COM has the absolute right to grant the licenses.

6. CLIENT agrees that it will not attempt, nor will it retain
or encourage others to attempt, to disassemble the IML Services or the IML Program.

7. CLIENT is not allowed to grant sub-licenses under this Agreement. CLIENT is not allowed to assign this Agreement.

8. CLIENT shall pay subscription fees in advance. CLIENT shall pay fees for other goods and/or services within 30 days after receipt of an invoice for same from WISNET.COM. WISNET.COM shall be solely responsible for all its expenses incurred while performing under this Agreement.

9. Nothing in this Agreement is intended to or shall be construed to make either WISNET.COM or CLIENT an employee of the other. Nothing in this Agreement is intended to or shall be construed to make create a joint venture between the Parties. CLIENT shall have no power, nor will CLIENT represent that it has any power, to bind WISNET.COM or to assume or to create any obligation or responsibility, express or implied, on behalf of WISNET.COM or in the name of WISNET.COM.

10. Independent Contractor
In providing the goods and/or services contemplated and contracted for under this Agreement, the Parties agree that WISNET.COM is an independent contractor. In its capacity as an independent contractor, WISNET.COM agrees, warrants, and represents as follows:

a. WISNET.COM has the right to perform services for other individuals, businesses, and entities during the term of this Agreement;

b. WISNET.COM shall furnish all equipment and materials to perform the services required under this Agreement except to the extent that its work must be performed on or with CLIENT'S computers and/or existing software; and

c. The services require of WISNET.COM under this Agreement shall be provided at such times determined by WISNET.COM and by such employees or agents of WISNET.COM at it determines. WISNET.COM shall be responsible for paying all wages, expenses, and fringe benefits, of such employees or agents.

11. Contractor's Materials
a. WISNET.COM owns or holds a license to use and/or sublicense various materials in existence on the commencement date of this Agreement, hereinafter called "Contractor Materials."

b. WISNET.COM retains all right, title, and interest, including all copyright, patent, and trade secret rights, to Contractor Materials. Subject to full payment of the fees due from CLIENT to WISNET.COM under this Agreement, WISNET.COM grants to CLIENT a non-exclusive world-wide license to use and sub-license Contractor Materials for the purpose of developing and marketing its products and services. CLIENT shall not have the right to further develop or market Contractor Materials separate from developing and marketing its products and services. The license granted hereunder shall terminate on the same date that this Agreement terminates. The license granted hereunder may not be transferred or assigned by CLIENT without first receiving the written consent of WISNET.COM.

12. Confidentiality
a. During the term of this Agreement and for one (1) year following its termination for any reason, WISNET.COM shall use reasonable care to prevent the unauthorized use or dissemination of CLIENT'S Confidential Information. Reasonable care is defined to mean that same degree of care that WISNET.COM would use to protect its own confidential information against unauthorized use or dissemination.

b. Confidential Information is defined as information marked "confidential" as determined by CLIENT prior to delivery of the information to WISNET.COM.

c. Confidential Information does not include any information that is or becomes public knowledge through no fault of WISNET.COM.

13. WISNET.COM warrants that all services performed under this Agreement shall be performed by employees or agents who have the knowledge and training to perform such services in conformity with professional and/or industry standards

14. This Agreement shall commence on the date of execution
thereof by CLIENT.

15. This Agreement shall terminate on December 31, 2002. This Agreement shall automatically renew for successive one-year terms until and unless terminated by either Party as provided herein.

16. Each Party has the right to unilaterally terminate this Agreement upon giving written notice to the other Party no less than ninety
(90) days prior to the date of such termination. Any termination notice shall be sent to the non-terminating Party by certified mail return receipt requested.

17. If CLIENT files for protection under federal bankruptcy laws, fails to pay for services and/or goods in accordance with this Agreement, or commits any other breach of this Agreement, WISNET.COM may, at its sole discretion and without notice, discontinue performance of and terminate this Agreement. Termination as provided herein shall not forfeit the right of WISNET.COM to pursue any remedies available to it at law or in equity.

18. WISNET.COM agrees to provide to CLIENT reasonable amounts of consultation via telephone and/or electronic mail in the use of the IML Services that are maintained and/or controlled by WISNET.COM.

19. Should either Party initiate litigation to enforce its rights under this Agreement, the prevailing Party shall be entitled to recover its costs, including reasonable attorney fees, associated with such litigation.

20. This Agreement shall be binding upon and shall inure to the benefit of the Parties. This Agreement is personal to CLIENT, and it shall automatically and immediately terminate in the event of the dissolution, insolvency, or bankruptcy of CLIENT.

21. CLIENT acknowledges that WISNET.COM is the sole owner of the WISNET.COM service marks and trademarks, including "IML," associated with the IML Program and IML Services. CLIENT agrees that it has no right to use, and it will not use, any WISNET.COM trademark or service mark in a manner that would be likely to cause confusion to the public as to the source of the WISNET.COM goods and services, or that would in any other way tend to reduce the value of the WISNET.COM trademarks and service marks.

22. No termination of this Agreement, however effected, shall relieve either Party of any obligations as accrued to the date of such termination.

23. The Parties acknowledge that WISNET.COM maintains a constant program of improving the IML Program and IML Services. The Parties agree that WISNET.COM has the sole discretion whether or not to include any particular improvement in the version of the IML Program or IML Services provided to CLIENT under this Agreement.

24. This Agreement contains the entire Agreement of the Parties relating to the license of the IML Services. This Agreement supersedes any and all prior Agreements and representations, whether oral or written, between the Parties relating to the subject matter of this Agreement. No modification of this Agreement shall be binding upon either Party unless such modification is agreed to in writing by the Parties.

25. This Agreement shall be governed by the laws of the State of Wisconsin. The Parties agree that the Circuit Courts in Fond du Lac county shall be the venue for any litigation arising out of or under and pursuant to the terms of this Agreement.

26. No waiver of any breach of any provision of this Agreement shall constitute a waiver any any prior, concurrent, or subsequent breach of this Agreement. If any provision of this Agreement is held by a court to be legally void, voidable, or otherwise unenforceable, such provision shall not invalidate the remaining provisions. If WISNET.COM determines, in its sole discretion, that any unenforceable provision is essential to this Agreement, it may terminate this Agreement without penalty upon notice to CLIENT. Such notice may be sent electronically or by mail. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

27. Should any changes in State of Wisconsin or federal legislation require any changes to this Agreement or in any goods and/or services provided by WISNET.COM, WISNET.COM reserves the sole right to make any such changes. WISNET.COM shall notify CLIENT of any such changes, including their effective date, either electronically or by mail. Upon receipt of such notification, CLIENT may at its sole option, terminate this Agreement immediately and without penalty, provided, however, that it will not be entitled to a refund for any payments made for goods and/or services provided by WISNET.COM before the date of notification of the legislated changes.

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