11.17.21_-_WHS_-_ACME_SAAS_CONTRACT_Final.docx.pdf

111 N. Market St, Suite 300, Box 51

San Jose, CA 95113

(510) 456-0182

Platform Services Agreement

Wisconsin Historical Society

816 State Street

Madison, WI 53706

Contract Number: 245005-O22-HS21001BOOT-00

RFP: HS21-001 Box Office and Online Ticketing Solution

DocuSign Envelope ID: 6E7513DB-C32E-4534-89B8-78EF79242C2C

Summary

ACME appreciates the opportunity to work with Wisconsin Historical Society to deploy the ACME solution into a production environment. The targeted go-live on or before April 4, 2022 will be governed by the implementation project teams and supported by a mutually agreed upon project plan.

TICKETING IMPLEMENTATION DELIVERABLES

Access Control

Ticket rescheduling (no payment capture)

Ticket scanning for ACME-ticketed events, including member events

Will call check-in

Back Office

Add-on configuration

Event management: scheduling, pricing, and publishing events to enable ticket sales

Order management: edits, refunds, cancellations, rescheduling

Reporting: standard reporting of events, sales, and transaction data

Group Sales: Custom event management for private group visits inclusive of review of configurable payment policies

Group Sales: Organization configuration

Group Sales: Organization sales for group admission and events

Individual ticket sales via phone (client reservations staff)

Reporting: custom report configuration

Resource management: assignment of people, places, and equipment to an event eCommerce

Automatic ticket delivery and order confirmation emails to purchasers

Configuration of standard and mobile purchasing sites

Member validation through one of the following options:

- Membership ID

- Membership ID + last name of the primary member

- Email of the primary member (requires current member data import into ACME)

Sales of timed entry admission, including member verified ticketing

Registration forms for enhanced data collection (as defined per event)

Sales of general admission and other ticketed events

POS

Add-on item sales (e.g. Audio Tour)

Member search/verification (requires current member data import into ACME)

Member ticket sales with discounts and ticket limit enforcement (requires current member data import into

ACME)

Optional order confirmation emails to purchasers

Optional receipt and ticket printing

Order Management: edits, refunds and will call check-in

Sales of timed entry event tickets

Customer contact data collection at the time of purchase

Group check-in and payment processing

Sales of general admission and other event types

MEMBERSHIP IMPLEMENTATION DELIVERABLES

Raiser’s

Edge

Interface

2-way file import/export integration for the following record types:

- Addresses

- Constituents (Individual and Organizations with memberships)

- Current Memberships, including membership cardholders

ImportOmatic RE Plugin for data import into Raiser's Edge

(requires third party agreement with Omatic)

Import and export mapping configuration

Import/Export process and troubleshooting

Member discount rules & ticket limits for ticketed events (requires current member data import into ACME)

Members-only events (if applicable) (requires current member data import into ACME)

Membership configuration (setup of levels and offerings to enable member data transfer)

Membership configuration (setup of levels and offerings to enable membership sales)

Reporting of membership sales

Member validation through one of the following options:

- Membership ID, Membership ID + last name of the primary member, Email of the primary member

(requires current member data import into ACME)

Sales: new member joins (via an event-based method to capture payment and constituent data)

Consolidated cart for purchase of membership and tickets

Sales: renewals and rejoins (if offered online)

Sales: mid-cycle upgrades (if offered online)

Sales: new member join (via ACME Membership Object)

POS

Member search/verification (requires current member data import into ACME)

Sales: new member join (including ticket conversion)

Sales: renewals and rejoins

Sales: mid-cycle upgrades/downgrades

DONATION IMPLEMENTATION DELIVERABLES

Donation configuration: fixed and variable amounts

Donation configuration: campaign, fund, appeal and recognition

Reporting of donations

Donation acceptance: fixed and variable amounts

Donor-specified campaign, fund and appeal

Donor-specified recognition and acknowledgment

Client-provided donation language

Multiple campaign-specific donation landing pages

POS

Donor-specified campaign, fund and appeal

Donor-specified recognition and acknowledgment

Access to all Access Control features and functions

ACME PLATFORM TRAINING & IMPLEMENTATION SERVICES

Configuration

Styling: text variables (JSON), CSS configuration and email configuration

Styling: mobile responsive CSS and branding

Client branding of ACME's templated eCommerce site

Deep-linking guide for sales channel optimization

Hardware

Configuration

Point of Sale iPads and peripherals

Installation and provisioning support for Apple devices (POS and Access Control)

Activation of credit card readers

Hardware training and post-live support

Access Control iPods and scanners

Membership

Admin training session: Membership Administration/Configuration

End-user training session: Membership Sales

End-user training session: Reports

Membership import & export process

Ticketing

Administration training session

End-user training session: POS Sales and Order Management

End-user training session: Standard Reports

Configuration training session (Event and Membership set-up)

Configuration training sessions (Private Events and Resources)

End-user training session: Access Control

End-user training session: Backoffice Group Sales

User Testing

General troubleshooting assistance

Hardware orientation and setup

Review of test scenarios

Project

Manageme nt

Implementation project management services in collaboration with the customer’s project team, including oversight of project tasks, timelines, dependencies, issue and risk management.

ACME PLATFORM SAAS SUBSCRIPTION SERVICES

ACME

Access

Control

Applicatio n

Airwatch Licenses (mobile device management)

Access to all Access Control features and functions (current and future)

ACME Back

Office

Application

Browser-based availability per SLA

Access to all Back Office features and functions (current and future)

ACME

eCommerce eCommerce site (responsive) with customer branding

Access to all eCommerce features and functions

ACME POS

Application

Airwatch Licenses (mobile device management)

Access to all POS features and functions (current and future)

Merchant

Services

ACME manages all settlement and chargeback requirements within 1 business day of the recognized settlement attempt

ACME serves as Merchant of Record for payment processing through Stripe.

Platform

Access to a client sandbox environment managed by ACME

Access to all future product upgrades and enhancements

Cloud-hosting through Amazon Web Services

Cloudflare (DDoS protection and API-level protection)

Data security, encryption and disaster recovery

GDPR and CCPA adherence

PCI Level 1 Compliance (no additional responsibilities for WHS in regards to ticketing, membership, and donation transactions handled via ACME)

Product upgrades and enhancements

Sendgrid email services for automatic transactional emails

WCAG 2.0 AA compliance

ACME APIs & INTEGRATIONS

APIs

Access to ACME APIs for client development

Access to a Sandbox environment for testing managed by ACME.

Developer portal (documentation and samples)

Optional

Integrations

OTA Integrations (e.g., CityPASS, GetYourGuide, TripAdvisor, Ingresso) (third party reseller; requires client agreement with vendor)

Google Tag Manager and Google Analytics

Planned Implementation Milestones (Dates are an estimate and will be revised after the project kick-off and a formal project plan is created)

Nov 15-30: Planning

Dec 1-30: Deep Dive sessions

Jan 1-31: Training and Configuration

Feb 1-15: Configuration Refinement / Testing

Feb 15-28: Go-Live Prep

Mar 15: Go-Live

Roles and Responsibilities

To ensure a successful implementation, the following project team structure is recommended:

ACME:

● Project Manager: Manages the project plan and timeline

● Lead Implementation Consultant: Provides configuration guidance and delivers training to the project team

● Hardware Specialist: Leads hardware setup/configuration

WHS:

● Project Manager

● Visitor Services/Admissions Lead

● Group Visits Lead

● Membership Lead

● Raiser’s Edge specialist

● Education Programs Lead

● IT Lead

● Website lead (for online deployment tasks)

Estimated Effort

● Planning phase: approximately 2 hours per area lead

● Design & Configure phase: approximately 40 hours per area lead

○ Includes deep dive sessions, orientation/training

● Testing: 8 hours per area lead

● Status calls: 30 minutes to 1 hour per week for duration of project

Assumptions

● WHS obtains a license for Import Omatic to support the interface between ACME and Raiser's Edge.

● WHS has the necessary technology infrastructure to support ACME.

● WHS procures necessary hardware to support the use of ACME.

Schedule of Costs

Service Additional notes Unit Quantity Rate per Unit Total Cost

Ticketing

Implementatio n Package

Expire 1 year from the date of this agreement

Package - one time

$15,000

$15,000

Membership

Implementatio n Package

Expire 1 year from the date of this

$10,000

$10,000

ACME <-> CRM

Implementatio n Package

(Raiser's Edge)

$5,000

$5,000

Annual

Platform SaaS

License + support

SaaS Subscription renewal annually on the contract date. Support -

See details in SLA below

License – Billed

Annually

$39,000

$39,000

Merchant

Processing and

Transactions

Card Transactions only

% per transaction 3.0%

Profession al

Services

Consulting services for additional requirements not covered within this

Hour

TBD

$200

Total - Year 1 $69,000

Total - Year 2 $39,000

Total - Year 3 $39,000

Contact and Billing information

Institution Name Wisconsin Historical Society

Business Contact Name Bobby Marshment-Howell

Business Contact Phone Number 608-265-3843

Business Contact email address Bobby.marshmenthowell@wisconsinhistory.org

Billing Contact Name Bobby Marshment-Howell

Billing Contact Phone Number 608-265-3843

Billing Contact email address Bobby.marshmenthowell@wisconsinhistory.org

Institution Tax ID number 008-1020421196-07

SERVICE LEVEL AGREEMENT

1. Customer Platform Support. After Go-Live, all software support issues should be directed to the ACME Product Support team.

A. ACME Product Support Hours

B. Business Hours: ACME Product Support is available

I) Monday - Friday 9:00 a.m. and 8:00 p.m. ET.

II) Weekends and nonmajor holidays: between 10:00 a.m. and 7:00 p.m. ET

C. Major Holidays: ACME Product Support is closed on New Year’s Day, Memorial Day (US), Independence Day (US), Labor Day (US) Thanksgiving Day (US), Christmas Day.

2. Platform Support Channels. CUSTOMER to identify up to 5 designated platform managers. Each platform manager can reach ACME Product Support via the following channels A. Online: https://support.ACMEticketing.com/

B. Email: support@ACMEticketing.com

3. Platform Regularly Scheduled Maintenance. Regularly scheduled maintenance time does not count as downtime. Maintenance notifications are communicated via ACME customer service emails. Maintenance time is considered regularly scheduled if it is communicated at least 24 hours in advance.

4. Platform Availability - Service Level Agreement Terms

A. Uptime. ACME shall maintain 99.9% uptime with respect to the Mission Critical aspects of the Services during each calendar quarter of the Term of this Agreement, excluding regularly scheduled maintenance windows (as described below). A “Mission Critical” issue occurs when ACME sales channel flows are unable to process purchase orders and such failure is s not caused by a third-party service used by ACME (e.g. payment processors, decryption services, hosting service, etc.) or an internet/network provider to ACME or any on-site issues not related to the ACME Platform (e.g. the Ticketing Hardware, used by the POS application failing or changes to the front desk hardware/IT configuration causing an interruption of service) The measurement of uptime shall be based solely on reporting provided from monitoring tools utilized by ACME. For clarity, system failures directly resulting from Customer’s servers, Customer’s internet access, or catastrophic events beyond the control of

ACME shall not be counted as downtime.

B. Service Level Agreement Terms:

Issue Type Description Support First Response Outcome

Service

Interruptions

P0 - Complete Service Failure: The ACME Platform is unavailable across all sales channels

P1 - Severely Impaired Service with No

Workaround: One or more sales channels are offline and tickets cannot be sold using another sales channel.

P2 - Intermittent/Delayed Performance: One or more sales channels on the ACME platform is experiencing significant delays or intermittent service that is outside of the normal operating parameters of

ACME.

Within 1 Operating Hour of confirmed Service Interruption, ACME Product Support will engage the ACME Engineering team.

P0 - ACME will use commercially reasonable efforts to resolving all Severity Level PO incidents as soon as possible until the issue has a temporary repair/workaround in place. A permanent repair will be performed during normal Business

Hours.

P1 & P2 - ACME will work to resolve all P1 and P2 incidents during normal business hours until the issue has a temporary repair or workaround in place and then work to provide permanent repair.

Other Issues

Tasks, Questions, Troubleshooting Assistance -

This category includes all requests that can be addressed by Product Support and do not require the assistance of the Engineering team.

Bug Reports - Issues where the ACME Platform is not behaving as designed.

Enhancement Requests - Any idea, new feature, or enhancement to existing features submitted by the client.

Urgent - 1 Operating Hour

High - 4 Business Hours

Medium - 8 Business Hours

Low - 24 Business Hours

Urgent issues are any issues that have a significant impact on the venue’s ability to sell a ticket.

Tasks, Questions, Troubleshooting Assistance - ACME

Support will work with the customer to resolve issues as appropriate.

Bug Reports - Bugs and tickets requiring Engineering assistance will be reported to the Engineering team for further investigation.

Enhancement Requests - Customer requests for enhancements will be reported to the Product Management team for consideration.

5. Hardware Support. ACME Product Support will provide troubleshooting assistance to the IT Staff of the venue if f necessary. General maintenance, cleaning, troubleshooting, and basic

ACME approved hardware support is the responsibility of the client. For advanced assistance, the venue IT staff should contact the equipment manufacturer directly. Costs associated with consumables, equipment repair or replacement is the responsibility of the client. ACME strongly discourages the use of sticker stock with the BOCA ticket printer. Should the venue choose to use sticker stock with their ticket printers, the venue is responsible for all maintenance of the ticket printer and should work directly with BOCA.

6. Network Support. All network configuration, maintenance, troubleshooting, service, and upkeep is the responsibility of the venue’s IT Staff. As a cloud-based platform, ACME requires a strong, stable internet connection at all times. Issues that are caused by an unstable network are not covered under this agreement.

7. General

A. SLA timers are not active when a ticket is waiting for a response from a customer.

B. For the purposes of SLA, Bug Reports and Enhancement Requests are considered resolved when they have been reported to the Engineering and/or Product Management teams.

C. Bug Reports and Enhancement Requests will be prioritized against all other Bugs and Enhancements in n the backlog and will be resolved in order of priority. Tickets that require Engineering work are explicitly excluded from the SLA.

D. Not all Enhancement Requests will be accepted or scheduled for inclusion in the ACME Platform.

E. In the event of an ACME created platform outage, ACME will issue 1 day of additional access for every hour of an ACME created outage.

Terms and Conditions

The Terms & Conditions in RFP HS21-001, the State’s Standard Terms and Conditions (DOA-3054), and Supplemental Standard

Terms & Conditions for Procurements for Services (DOA-3681) are incorporated into this Statement of Work and supersede the

Terms & Conditions detailed below in the event of contradiction.

This ACME Platform Services Agreement (“Agreement”) is made and entered into as of date of the last signature below (“Effective

Date”), by and between ACME Technologies Inc., a Delaware corporation with its principal place of business at 111 N. Market St, Suite 300, Box 51 San Jose, CA 95113 (“ACME”), and the organization with its principal place of business at the address specified in the signature line (“Customer”). ACME has developed and hosts the Subscription Services (as defined below), which are accessed and used by ACME’s customers. Customer desires to access and use the Subscription Services, and ACME is willing to permit Customer to access and use the Subscription Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, the parties hereby agree as follows:

1. DEFINITIONS

1.1. “Authorized User” means an employee or contractor of Customer that has (i) been assigned a unique username-password combination to access and use the Subscription Services, and (ii) registered online to access and use the Subscription Services.

1.2. “Customer Data” means Customer’s proprietary data and information input into and/or stored by the Subscription

Services.

1.3. “Fees” means the fees described in this agreement.

1.4. “Implementation Services” means the services performed by ACME to configure and rollout the Subscription

Services to Customer and Authorized Users, as described in this agreement.

1.5. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

1.6. “Launch Date” means the date of the first live transaction processed through the ACME Platform

1.7. “Software” means any ACME or third-party software used by ACME to provide the Implementation Services and/or

Subscription Services.

1.8. “Subscription Services” means the services provided by ACME, through any means that provides the functionality described in this agreement.

1.9. “Term” means the term of this Agreement as defined in Section 10.1.

2. IMPLEMENTATION AND HARDWARE

2.1. Implementation. Subject to Customer’s cooperation and assistance in accordance with Section 5.1, ACME will provide the Implementation Services as described in this agreement.

2.2. Hardware. Customer must purchase the ACME Approved hardware in order to receive the Subscription Services and

Implementation Services. Customer will own such hardware and be responsible for its maintenance, replacement and upkeep.

2.3. Payment Processing. ACME may sub-contract with a third-party payment processor to provide payment processing services on its behalf to Customer.

3. SUBSCRIPTION SERVICES

3.1. Subscription Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, commencing on the launch date and continuing throughout the remainder of the Term, ACME will provide the

Subscription Services in accordance with and subject to the service level agreement set forth in this agreement (the

“Service Level Agreement”). Customer may access and use the Subscription Services solely for its internal business purposes and such access and use is expressly limited to the number of Authorized Users.

3.2. Restrictions. Customer shall not attempt to interfere with or disrupt the Subscription Services or the Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the

Subscription Services). Customer shall not allow access to or use of the Subscription Services by anyone other than Authorized Users. Customer shall not: (a) copy, modify or distribute any portion of the Subscription

Services or Software; (b) rent, lease, or provide access to the Subscription Services on a time-share or service bureau basis; or (c) transfer any of its rights hereunder (except as specified in Section 14.8).

3.3. Acceptable Use Policies and Exclusivity. Customer acknowledges and agrees that ACME does not monitor or police communications or data transmitted through the Subscription Services and that ACME shall not be responsible for the content of any such communications or transmissions. Customer shall use the Subscription

Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others. Customer shall not use the Subscription Services to transmit any bulk unsolicited commercial communications.

3.4. Data Maintenance and Backup Procedures. ACME shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data caused by Customer or any third party. ACME’S

EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA SHALL CONSTITUTE ACME’S SOLE

LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR

CORRUPTION OF CUSTOMER DATA.

4. NEW SERVICES. If Customer requests ACME to perform any services that are different from or in addition to the

Implementation Services and Subscription Services set forth herein (“New Services”), and ACME is willing to provide such different or additional services, then ACME shall provide a written quote to Customer listing the fees for such requested New Services (“New Service Fees”). If Customer accepts such quote in writing within fifteen (15) days: (a)

ACME shall perform the New Services; (b) the Fees shall be adjusted to reflect the New Service Fees; and (c) such New

Services shall be deemed Implementation Services and/or Subscription Services under this Agreement, as appropriate.

Customer is solely responsible for obtaining and maintaining any required third party product license to support operations of the New Services.

5. CUSTOMER OBLIGATIONS

5.1. Cooperation and Assistance. As a condition to ACME’s obligations hereunder, Customer shall at all times: (a) provide

ACME with good faith cooperation and access to such information, facilities, and equipment as may be reasonably required by ACME in order to provide the Implementation Services and Subscription Services, including, but not limited to, providing Customer Data, security access, information, and software interfaces to Customer’s business applications; (b) provide such personnel assistance, as may be reasonably requested by ACME from time to time; and

(c) carry out in a timely manner all other Customer responsibilities set forth in this Agreement.

5.2. Marketing Support. Customer shall comply with reasonable requests of ACME to support public relations efforts pertaining to the Subscription Services, which efforts may include: (a) a press release highlighting Customer’s purchase or use of the Subscription Services (including any return on investment attained through the Subscription

Services) with prior approval from WHS. (b) participation in targeted press and analyst interviews highlighting benefits of implementing the Subscription Services; and (c) participation in customer case studies developed by

ACME and used on the ACME website and other collateral. Upon written approval, Customer grants to ACME a non-exclusive, non-transferable (except as permitted under Section 14.8), limited right to use the Customer name, trademarks, and logos (collectively, the “Customer Marks”) in the production of marketing materials, provided that such use is in accordance with Customer’s trademark and logo use guidelines that Customer provides to ACME.

ACME will use its commercially reasonable efforts to cooperate with Customer in monitoring use of the Customer

Marks. All goodwill developed from such use shall be solely for the benefit of Customer.

5.3. Enforcement. Customer shall ensure that all Authorized Users comply with the terms and conditions of this

Agreement, including, without limitation, with Customer’s obligations set forth in Sections 3.2 and 3.3. Customer shall promptly notify ACME of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with ACME with respect to: (a) investigation by ACME of any suspected or alleged violation of this

Agreement and (b) any action by ACME to enforce the terms and conditions of this Agreement. ACME may suspend or terminate any Authorized User’s access to the Subscription Services upon notice to Customer in the event that

ACME reasonably determines that such Authorized User has violated the terms and conditions of this Agreement.

Customer shall be liable for any violation of the terms and conditions of this Agreement by any Authorized User.

5.4. Telecommunications and Internet Services. Customer acknowledges and agrees that Customer’s and its Authorized

Users’ use of the Subscription Services is dependent upon access to telecommunications and Internet services.

Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Subscription Services, including, without limitation, any and all costs, fees expenses, and taxes of any kind related to the foregoing. ACME shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.

5.5. Compliance with Sub-Merchant Agreement. Customer and ACME agrees to comply with all of the obligations of “Connect”. Without limiting the foregoing, Customer and ACME agrees:

5.5.1. to comply, and to cause its subcontractors to comply, with these provisions https://stripe.com/connect-account/legal , https://stripe.com/ssa, and other payment network’s by-laws, operating regulations and/or all other rules, policies and procedures, including but not limited to the Payment Card Industry Data Security Standard, the VISA Cardholder Information Security

Program, the MasterCard Site Data Protection Program, and any other program or requirement that may be published and/or mandated by the Associations or payment networks (collectively

“Operating Regulations”) and any changes to roles and responsibility will be notified by September

30 of each calendar year.;

5.5.2. that it will fully comply with any and all anti-money laundering laws and regulations, including but not

DocuSign Envelope ID: 6E7513DB-C32E-4534-89B8-78EF79242C2C https://stripe.com/connect-account/legal https://stripe.com/connect-account/legal https://stripe.com/ssa limited to the Bank Secrecy Act, regulations issued by the US Treasury’s Office of Foreign Assets

Control (OFAC) and/or the Federal Trade Commission;

5.5.3. to only complete sales transactions produced as the direct result of bona fide sales made to cardholders, and is expressly prohibited from presenting sales transactions which are produced as a result of sales made by any person or entity other than Customer, or for any purposes related to any illegal or prohibited activity, including but not limited to money-laundering or financing of terrorist activities; and

5.5.4. that it may only set minimum or maximum transaction amounts to accept a card that provides access to a credit account, as permitted by the Agreement.

5.6. Third Party Contractors – To the extent that Customer contracts with third parties to perform any services associated with this agreement, Customer will be fully responsible for all actions of such third party. This includes, but is not limited to, the financial impact to Customer as a consequence of any delays in implementation that may occur in areas that such third party has been contracted by Customer either to manage or perform.

6. FEES; EXPENSES; TAXES

6.1. Fees. In consideration for ACME providing the Implementation Services and Subscription Services, the Customer shall pay to ACME the Fees, in accordance with the terms set forth in this agreement.

6.2. Other Expenses. Upon written approval, Customer shall reimburse ACME for all actual and reasonable expenses

(including but not limited to, travel, lodging, shipping, and long-distance communication) incurred by ACME in performing the Implementation Services (collectively, “Expenses”)

6.3. Invoice Schedule:

6.3.1. Implementation fees: All fees are due net 30 from receipt of the monthly invoice which will be issued at the end of the month following services rendered for that time period.

a. End Month 1: $10,000

b. End Month 2: $10,000

c. End Month 3: $10,000

6.3.2. Platform/License fees due net 30 from the execution of this agreement.

6.4. Stripe Payment Processing

6.4.1. ACME serves as Merchant of Record for payment processing through Stripe.

6.4.2. The 3% merchant fee will be deducted from each transaction at the time of transaction and is processed as part of the transaction prior to transfer of revenue to WHS. WHS can use the ACME system to report on recognized revenue in order to have a record showing the full value of the transaction.

6.4.3. Transfer of funds:

a. ACME will transfer funds to WHS within 2 banking business days for purchases made

Monday – Thursday.

b. For purchases made Friday – Sunday, ACME will transfer funds to WHS by the following

Tuesday.

6.4.4. All refunds will have $.30 deducted from the refund value at the time of the refund.

6.4.5. All chargebacks will be treated as refunds and be charged up to $15 per instance and will be invoiced the 1st of each month due net 30.

6.5. ACME Platform/License fees are due net 30 from the execution of this agreement, and renewal date, if mutually agreed to by ACME and WHS, will be three years from the execution date of this agreement.

6.6. Invoices; Payment; Late Payment. ACME shall invoice Customer for all Fees, Expenses and applicable Taxes (as defined in Sections 6.1 - 6.3), and including any related interest and/or penalties), as outlined in this agreement. Each invoice is due and payable thirty (30) days following the invoice date. Pursuant to Wisconsin Statutes §16.528 and

§16.53 the state's prompt payment law provides for payment of interest on orders or contracts that are not made in a timely manner. Payments are considered timely if they are mailed within thirty days after the later of the receipt of a properly completed invoice, or receipt of the goods or services.

6.7. Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on ACME’s net income.

7. OWNERSHIP

7.1. Intellectual Property. As between ACME and Customer, the Subscription Services and Software (and all copies of the

Software), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of ACME or its licensors. As between ACME and Customer, the Customer Data, and all Intellectual Property Rights therein, are and shall remain the exclusive property of Customer. Notwithstanding anything to the contrary, the parties acknowledge and agree that ACME may monitor, collect, use and store data regarding Customer’s use of the

Subscription Services or components thereof, including Customer Data (collectively, the “Usage Data”). Customer hereby grants ACME an irrevocable, non-exclusive, royalty-free, worldwide, perpetual license to the Usage Data for any legal business purpose, including, but not limited to, enhancing the Services and their respective components and creating new features thereof; however, any Usage Data may only be shared with third parties in anonymous and aggregate form that cannot identify Customer.

8. CONFIDENTIALITY

8.1. Definition. By virtue of this Agreement, the parties may have access to each other’s Confidential Information.

“Confidential Information,” as used in this Agreement, means any written, machine-reproducible and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that is orally or visually disclosed, if not so marked, if it is identified as proprietary or confidential at the time of its disclosure or in a writing provided within thirty (30) days after disclosure, and any information of any nature described in this Agreement as confidential. ACME Confidential Information includes, without limitation, the

Subscription Services and any Software whether in source or executable code, documentation, nonpublic financial information, pricing, business plans, techniques, methods, processes, and the results of any performance tests of the

Subscription Services or the Software. Customer Data is the Confidential Information of Customer.

8.2. Exclusions. Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure;

(c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or

(d) is independently developed by the receiving party, which independent development can be shown by written evidence.

8.3. Use and Nondisclosure. During the Term and for a period of five (5) years after expiration or termination of this

Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under this Agreement unless required by law. Each party shall take all reasonable steps to ensure that the other’s

Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of this

Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.

9. WARRANTY

9.1. Warranty for Subscription Services. ACME warrants that the Subscription Services will provide the functionality set forth in this agreement, and that ACME’s delivery of the Subscription Services will meet the requirements set forth in the Service Level Agreement. ACME’s sole and exclusive remedy for any breach of the warranty set forth in this Section 9.1 will be as set forth in the Service Level Agreement.

9.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.1, ACME MAKES NO

REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN

CONNECTION WITH THIS AGREEMENT, THE IMPLEMENTATION SERVICES OR THE SUBSCRIPTION

SERVICES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN SECTION

9.1, ACME DISCLAIMS ANY WARRANTY THAT THE SUBSCRIPTION SERVICES WILL BE ERROR

FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. ACME FURTHER

DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SUBSCRIPTION SERVICES AS TO

MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR

PURPOSE, OR

NON-INFRINGEMENT. ACME FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM

A COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL

OR WRITTEN, OBTAINED FROM ACME OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT

EXPRESSLY STATED IN THIS AGREEMENT.SOME JURISDICTIONS DO NOT ALLOW THE

EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF

THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY.

10. TERM AND TERMINATION

10.1. Term. This Agreement shall commence on the Signature Date and shall continue for a period of three years following the Signature Date (the “Initial Term”) with the option for three (3) two (2) year renewals. Any termination must follow the terms outlined in RFP HS21-001 section 7.3. The Initial Term and renewal periods are collectively the “Term”.

10.2. Termination for Cause is outlined in RFP HS21-001 section 7.3.1.

10.3. Termination for Insolvency. Subject to Title 11 of the United States Code, if Customer becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, or makes an assignment for the benefit of any creditor, then

ACME may terminate this Agreement upon thirty (30) days’ written notice.

10.4. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s and Authorized Users’ right to access and use the Subscription Services shall immediately terminate, Customer and its Authorized Users shall immediately cease all use of the Subscription Services, and each party shall return and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. ACME may destroy or otherwise dispose of any Customer Data in its possession unless ACME receives, no later than ten (10) days after the effective date of the expiration or termination of this Agreement, a written request for access to the Customer Data. ACME will use commercially reasonable efforts to maintain access to Customer Data within twenty (20) days of its receipt of such a written request. Customer shall pay all reasonable expenses incurred by ACME in returning Customer Data to Customer.

Also upon expiration or termination of this Agreement, ACME shall cease use of the Customer Marks (as defined in Section 5.2); provided, however, that (a) ACME shall have a reasonable time to remove the Customer Marks from promotional materials, (b) ACME shall be entitled to exhaust materials printed during the Term that include the Customer Marks, and (c) ACME shall not be required to remove any such printed materials from circulation.

10.5. Survival. The rights and obligations of ACME and Customer contained in Sections 6 (Fees, Expenses and Taxes), 7

(Ownership), 8 (Confidentiality), 10.4 (Rights and Obligations Upon Expiration or Termination), 10.5 (Survival), 11 (Indemnification), 12 (Limitation of Liability), 13 (Acknowledgement), and 14 (General) shall survive any expiration or termination of this Agreement.

11. INDEMNIFICATION

11.1. Indemnification by Customer. Customer shall defend (or settle), indemnify and hold harmless ACME, its officers, directors and employees from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with any third-party claim that: (i) a third party has suffered injury, damage or loss resulting from Customer’s or an Authorized User’s use of the Subscription

Services (other than any claim for which ACME is responsible under Section 11.2); or (ii) Customer or any

Authorized User has used the Subscription Services in a manner that violates Sections 3.2 or 3.3 of this

Agreement. Customer’s obligations under this Section 11.1 are contingent upon: (a) ACME providing Customer with prompt written notice of such claim; (b) ACME providing reasonable cooperation to Customer at Customer’s expense, in the defense and settlement of such claim; and (c) Customer having sole authority to defend or settle such claim.

11.2. Indemnification by ACME. ACME shall defend (or settle) any suit or action brought against Customer to the extent that it is based upon a claim that the Subscription Services infringe or misappropriate the Intellectual Property

Rights of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer. ACME’s obligations under this Section 11.2 are contingent upon: (a) Customer providing ACME with prompt written notice of such claim; (b) Customer providing reasonable cooperation to

ACME, at ACME’s expense, in the defense and settlement of such claim; and

(c) ACME having sole authority to defend or settle such claim. In the event that ACME’s right to provide the

Subscription Services is enjoined or in ACME’s reasonable opinion is likely to be enjoined, ACME may obtain the right to continue providing the Subscription Services, replace or modify the Subscription Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate this Agreement without liability to Customer. THE FOREGOING STATES THE ENTIRE OBLIGATION OF ACME AND ITS LICENSORS

WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF

INTELLECTUAL PROPERTY RIGHTS BY THE SUBSCRIPTION SERVICES. ACME shall have no liability under this Section 11.2 to the extent that any third-party claims described herein are based on the use of the

Subscription Services in a manner that violates this Agreement or the instructions given to Customer by ACME.

12. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTIONS 3.2 OR 3.3 OR

SECTION 8, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC

LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT

(INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. NOTWITHSTANDING ANY OTHER

PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL ACME’S AGGREGATE LIABILITY TO CUSTOMER

AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S ACCESS TO AND USE

OF THE SUBSCRIPTION SERVICES EXCEED THE TOTAL MONTHLY SUBSCRIPTION FEES PAID BY

CUSTOMER IN THE TWELVE MONTH PERIOD PRECEDING THE CLAIM OR ACTION, REGARDLESS OF THE

FORM OR THEORY OF THE CLAIM OR ACTION.

13. ACKNOWLEDGEMENT. The parties acknowledge that the limitations and exclusions contained in Section 12 and elsewhere in this Agreement have been the subject of negotiation between the parties and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made hereunder. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.

14. GENERAL

14.1. Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Wisconsin, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Wisconsin. ACME and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in those courts in any such legal action or proceeding

14.2. Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

14.3. Notices. All notices, including notices of address change, required to be sent hereunder shall be in writing and shall be sent to the addresses set forth in the signature line of this Agreement or delivered in person. The notices shall be deemed to have been given upon: (a) the date actually delivered in person; (b) the day after the date sent by overnight courier; or (c) three (3) days following the date such notice was mailed by first class mail. Notices may be confirmed by email.

14.4. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

14.5. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure

Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

14.6. Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

14.7. Relationship Between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without such other party’s prior written consent.

14.8. Assignment/Successors. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent except in the event of a Change of Control (as defined below). Any attempted assignment or transfer in violation of this Section will be null and void. “Change of Control” means, with respect to a party: (a) the direct or indirect acquisition of either (i) the majority of voting stock of such party or (ii) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or

(b) the merger of such party with another entity. Subject to the foregoing restrictions, this Agreement shall inure to the benefit of the successors and permitted assigns of the parties.

14.9. Entire Agreement. This Agreement together hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party.

14.10. Non-Exclusive Remedies. Except as set forth in Sections 3.4 and 11.2 and in the Service Level Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.

14.11. Equitable Relief is outlined in RFP HS21-001 section 7.4.

14.12. No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

14.13. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument.

14.14. Headings. The headings in this Agreement are for convenience of reference only and have no legal effect.