Augusoft Terms.pdf

First Amendment to the University of Wisconsin System Contract

# RFB USS-21-8121-B

Contract # RFB USS-21-8121-B between the Board of Regents of the University of Wisconsin System and Augusoft, Inc. (the “Contract”) is amended as set forth herein. The terms of this First Amendment shall supersede the terms of the Contract and the documents referenced and incorporated therein.

The following sections refer to sections of the Performance and Contract Requirements attached to the

Request for Bid issued by University of Wisconsin System:

Performance and Contract Requirements

Section 5.15.1 Section 5.15.1 of the Request for Bid shall be deleted and replaced with the following: “The University may terminate the Contract at the end of the initial term or any renewal term by providing Contractor with notice of the University’s intent not to renew the Contract at least thirty (30) days’ prior to the end of the then-current term.”

Section 5.16 Section 5.16 shall be modified to include the following: “Notwithstanding the forgoing, any purchase by any other U.W. System campus, any State of Wisconsin Agency, or Wisconsin municipalities after the effective date of the Agreement shall not extend the Term of this Agreement beyond the term as defined in Section3.3”

Section 15.18 Section 15.18 shall be modified to include the following hierarchy of documents: A. Contract Award Letter; B. Bidder Response to Bid; C. Original Request Bid Number USS-20-8121-B, dated November 11, 2020, including amendments/attachments; D. Official Purchase Order (when applicable)

Attachment D – Software as a Service Rider Terms

Confidential Information

The definition of “Confidential Information” contained in Attachment D shall be modified to add the following: “With respect to Contractor, Contractor’s Lumens® (“Lumens”) program and all related Documentation shall be considered “Confidential Information

License The first paragraph of the “License” section of Attachment D shall be deleted in its entirety and replaced with the following: “Subject to the Agreement of the Parties, Contractor hereby grants UW a limited, non-exclusive, non-transferable, non-assignable license to use Lumens and such associated Documentation and technical materials as may be available on the effective date of the agreement between the Parties. UW’s license to use Lumens and the associated Documentation will be automatically revoked if the Agreement is terminated.

Attachment D – Contractor Responsibilities Terms

Resources and Support

The final sentence of the “Resources and Support” subsection of “Contractor Responsibilities” section of Attachment D shall be deleted in its entirety.

Additional Services

The first sentence of the “Additional Services” subsection of the “Contractor Responsibilities” section of Attachment D shall be deleted in its entirety and replaced with the following:

“Contractor shall provide access to additional features and functionalities of the SaaS as are provided by Contractor to other Contractor customers who require functionality similar to the SaaS provided to UW at no additional cost to UW, to the extent such features and functionalities are provided to such other Contractor customers at no cost to such other customers.

Functional Warranty

The “Functional Warranty” subsection of the “Contractor Responsibilities” section of Attachment D shall be deleted in its entirety and replaced with the following: “Contractor warrants that all updates, changes, alterations or modifications to the SaaS will not materially diminish the features or functionality of the SaaS.”

DocuSign Envelope ID: 91841AA6-AA20-4D3C-A584-3BFE148E0F84

Viruses That portion of the “Viruses” subsection of the “Contractor Responsibilities” section of Attachment D after the third sentence of that subsection shall be deleted in its entirety.

Disaster Recovery

That portion of the “Disaster Recovery” subsection of the “Contractor Responsibilities” section of Attachment D following the first sentence of the second paragraph of that subsection shall be deleted in its entirety.

And.

The final sentence of “Disaster Recovery Backup” subsection of the “Contractor Responsibilities” section of Attachment D shall be deleted.

Operations The first paragraph of the “Operations” subsection of the “Contractor Responsibilities” section of Attachment D after the third sentence of that subsection shall be deleted in its entirety.

The number 99.99% in the first sentence of the fourth paragraph of the “operations” subsection of the “Contractor Responsibilities” section of Attachment D shall be deleted and replaced with 99.9%. Additionally, the sentences following the first sentence of the fourth paragraph of the “Operations” subsection of the “Contractor Responsibilities” section of Attachment D shall be deleted.

Attachment D – Termination Terms

Effect of Termination

Subpart (iii) of the “Effect of Termination” subsection of the “Termination” section of Attachment D shall be deleted and replaced with the following: “UW’s liability shall be for the remaining amount due for the then-current term if terminated for any reason other than by UW for Contractor’s material breach, in which case UW’s liability shall be limited to the price for all products and services delivered to and accepted by UW prior to the effective date of termination;”.

Minimum Guarantee of Continued Support

The “Minimum Guarantee of Continued Support” subsection of the “Termination” section of Attachment D shall be deleted in its entirety.

Attachment E – Standard Terms and Conditions

Section 15.0 The following shall be added to the end of Section 15.0: “Notwithstanding the foregoing, either party shall be permitted to assign its interest without the consent of the other party in the event of a merger, reorganization, or sale of substantially all of the assets or equity of the assigning party.”

Additional Terms

Additional Terms Attached hereto as Attachment 1 are the Augusoft Standard Terms and Conditions, which shall apply to the parties’ Agreement to the extent such Augusoft Standard Terms and Conditions do not directly conflict with Section 2.c. of the Contract.

Attachment 1 Augusoft Standard Terms and Conditions

A. INTRODUCTION

This document (referred to as the “Standard Terms”) contains various terms and conditions that will apply to any sales by Augusoft®, Inc., (referred to as “Us”, “We” and “Our”) of license rights to software products. The Standard Terms will also apply to the sale of any custom programming services, training, or any other goods or services described on the Augusoft Order Form (the “Order Form”) that We have presented to the Customer (referred to as “You” or “Your”). These Standard Terms will be effective when You sign the Order Form.

There may be several documents that together form Our agreement with You (the “Agreement”). The Agreement generally consists of the

Order Form, these Standard Terms, and any documents that are specifically referenced in or attached to the Order Form or these Standard

Terms. Please note that the Order Form and the Standard Terms will supersede and replace any conflicting provisions in Your purchase order or other purchasing documents.

We have developed and own an internet/web based software program known as “Lumens®” (sometimes referred to in this document simply as the “software” or the “Product” or “Lumens”) used by institutions including educational institutions to manage continuing education and related programs. Lumens and the services associated therewith are sometimes referred to as the “Services”. We develop and maintain

Lumens, which is offered in several different editions. The edition that You have chosen is listed on the Order Form. If at any time You wish to change to another version of Lumens, You will need to sign a Product Change Order Form.

Lumens® is a registered trademark of Augusoft, Inc., a Minnesota corporation located at the address on your Order Form.

B. LICENSE AGREEMENT

1. Software

We created Lumens with customizable features, so there are several different editions of Lumens available. This Agreement grants You limited rights to use Lumens version You have chosen, for so long as You have a valid Subscription for such use and are not in violation of this Agreement.

2. Grant of License

Subject to the terms of this Agreement, We grant You a limited, non-exclusive, non-transferable, non-assignable license to use Lumens and such associated documentation and technical materials as may be available on the date the Order Form is signed. This license also extends to any enhancements that We may choose to release for Lumens software. Any enhancements or other modifications to Lumens will be made at Our sole discretion; if upgrades or changes are made, they will be communicated to You and You may have the opportunity to use them.

Your license to use Lumens will be automatically revoked if this Agreement is terminated. As described in these Standard Terms, the

Agreement can be terminated by You, or by Us if you violate our Agreement. A termination of the Agreement will terminate Your license to use the Lumens software, but the following provisions will survive any termination or expiration of the Agreement: B3, B5, B6, B8 and D13.

3. Ownership of the Lumens Software

(a) At all times and for all purposes, We will be the sole and exclusive owner of the Lumens software and related Services; nothing in this

Agreement or any other document You receive will result in any transfer of any ownership in Lumens, including any related integration or other components and documentation, to You. Because We are the exclusive owner of Lumens, we also retain the exclusive right to make any changes to the software or Services; nothing in this Agreement or any other document You receive will grant You the right to make any changes to the Lumens software. No modifications, additions or deletions may be made to the Lumens software by You. In the event

You violate this provision and unlawfully create any derivative work from Lumens, You agree that title to such derivative work remains with

Us. In the event that You or anyone working for You creates a derivative work based on Lumens, You must immediately advise us of this fact and take immediate steps to turn over to Us all documentation, code, and all copies of the derivative work in any form.

(b) There are fields in the Lumens software that are customizable. This fact does not grant You any ownership in Lumens. In the event that We undertake any customizations or augmentations for you (which would be the subject of a separate agreement), those customizations or augmentations will always be Our exclusive property. Under no circumstances will customizations (or augmentations) and any related documentation be construed as a work made for hire, and no ownership rights shall be transferred to or created in You.

You will not own resale or marketing rights to Lumens. You also have the obligation to ensure that unauthorized third parties do not violate

Our ownership rights as described elsewhere in these Standard Terms.

(c) In the event any part of the Lumens software, including any and all of its related components, were ever determined to be a work made for hire, You hereby agree to convey all claims of ownership and authorship that arise from such a determination to Us.

(d) We warrant that:

(i) We have legal title and rights of ownership in Lumens and have full power and authority to grant You a license to use it;

and

(ii) to the best of Our knowledge, the use of Lumens will in no way constitute an infringement or other violation of any patent, copyright, trade secret, trademark, or other proprietary right of any third party.

4. Assignment or Transfer of Rights

You may not transfer or sub-license Your Lumens license. As noted below, You may not resell Your license nor provide access to the

Lumens software to parties that are not specifically authorized to use it by Us as set forth in the Agreement.

5. Scope of License

This license does not permit:

(a) Modification, translation, reverse engineering, de-compilation, or disassembly of Lumens or creation of derivative works from Lumens by You. The use of web “frames” in which images produced by Lumens are framed within a border, with attached audio, or with other video alterations by You shall constitute creation of derivative work,

(b) Removal of any proprietary notices, labels, or marks on the software or in accompanying documentation of the software by You, and

(c) Grants of access to the Lumens software by You except insofar as access is granted to individuals or other entities as necessary in the field of use, which for this Agreement is defined as the business of managing a lifelong learning/continuing education system; all individuals or entities granted such access must consist of a single institution. Permitting third parties to view or otherwise access Lumens

(or the documentation related to Lumens) is a violation of our Agreement and may lead, at Our option, to immediate termination of Your license to use the software.

This license grants You rights to use Lumens for Your internal program use ONLY.

As between the two of us, You own your data. You are therefore exclusively responsible for all actions taken or data stored by You or Your authorized users. Your data is considered confidential. However, because We may need to look at it or otherwise be able to access it to perform Our obligations to You, You hereby grant Us a license to use, modify and distribute Your data to the extent we need to under the

Agreement.

You are responsible for ensuring that Your authorized users follow applicable state and local law, including any privacy laws that might apply. You will have the sole responsibility for the accuracy, quality, reliability, integrity and appropriateness of any data You choose to store or access using the Lumens software. Should You find out that data is stored in violation of our Agreement or applicable law, You will take immediate steps to remedy the problem. Likewise, if You discover that unauthorized parties have accessed the Lumens software, You will take immediate steps to block such access, and will notify Us of the unauthorized access and any consequences that occur.

By signing an agreement with Us, you are also agreeing to the standard terms and conditions of any license agreement applicable as a result of third party software which is part of your Lumens use. See www.augusoft.net/agreements.

6. Confidentiality

(a) As we work together we will each be learning about each other. In many cases the information that We share should be treated as confidential. In the event that You disclose to Us or Our agents and representatives information marked “confidential” concerning Your operations, We will treat such information as Your confidential property. We won’t disclose it to anyone except individuals working for Us who need to know it in order to develop Lumens or to meet our contract obligations to You.

(b) Likewise, You acknowledge that Lumens (including the source and object codes, logic, and structure) is Our valuable property and a trade secret. You agree to secure and protect the Lumens software from unauthorized access or use. This protection includes, but is not limited to, ensuring that the Lumens software is not demonstrated, displayed, or otherwise accessed by third parties, and/or Your employees and agents who are not directly authorized by Us in writing (or by the Agreement) to access Lumens.

(c) If a valid court order is issued directing Us or You to disclose confidential information, to the extent permitted by law the party being compelled to make disclosure will notify the other promptly.

(d) The foregoing provisions of Confidentiality will not restrict either party from disclosing the other party’s Confidential Information or the terms and conditions of this Agreement pursuant to Wisconsin Open Records Law.

7. Maintenance and Service Availability

(a) We will use commercially reasonable efforts, commensurate with the severity of the error, to correct any malfunction, defect or non-conformity in the operation of the Lumens software or Services to substantially perform in accordance with documentation You have received from Us. You shall conduct reasonable and adequate research with respect to an issue prior to contacting Us for assistance.

You are obligated to respond promptly to all reasonable requests for pertinent information, documentation, technical and other assistance to assist in resolving problems. Once a reported error has been logged by either Us or You, We will assign to it a tracking identifier and severity level. This tracker can be used by You to refer to the reported error, and will remain open until the issue is resolved.

(b) Assignment of severity level and Our responses will be as follows:

(i) A “Level 1” issue will be resolved within two (2) business hours of verification of the issue by our technical support team. A

“Level 1” issue occurs when the Service is non-functional or unavailable to all users.

(ii) A “Level 2” issue will be resolved within one (1) business day of verification of the issue by our technical support team. A

“Level 2” issue is defined as a condition in which the Service is disrupted, but there is some capacity to operate and conduct business for essentially all users.

(iii) A “Level 3” issue will be resolved within ten (10) business days of receipt of the reported error. A “Level 3” issue is defined as a condition whereby You have experienced a partial, non-critical loss of previously available Lumens functionality.

http://www.augusoft.net/agreements

(iv) A “Level 4” issue will be resolved within the next major or minor (at Our discretion) release of Lumens if it is determined by

Us that this change will benefit the overall product functionality, and/or aesthetics of Lumens. A “Level 4” issue is defined as a condition whereby the overall functionality of Lumens is not affected, but a change is desired that adds or streamlines previously not available functionality, aesthetic, and/or addresses non-critical bugs.

(d) We will provide Help line support, which includes general technical information and assistance with problem determination, isolation, verification, and resolution during the hours of 8:00 A.M. to 5:00 P.M. Central Time, (excluding weekends and holidays) via toll-free telephone and electronic mail, in conjunction with Augusoft’s tracker system and on-line document center.

(e) We shall not be obligated to provide Support if Lumens and the Services are not used in accordance with the then current documentation or if any defect reported by You is found by Us not to have been caused by Us.

(f) We will post outage notification on the Announcement Center and/or send notification within 90 minutes of any observed Outage (Level

1 issues) lasting more than 10 minutes.

(g) Provided that You are not in breach of your agreement with Us, We shall provide to You all extensions, enhancements, and other changes, which We believe to be logical improvements to the software and which We make generally available on a commercial basis, without charge except for any required professional services. We will post notification of substantive changes on the Announcement Center at least five (5) business days in advance of the change and will post details on the changed functionality.

(h) We will provide System Availability for at least ninety-nine and point nine percent (99.9%) of the time, seven (7) days a week, twenty-four (24) hours per day not including any unavailability that:

(i) lasts less than ten (10) minutes (but no more than two (2) such excluded outages in a twenty-four (24) hour period);

(ii) results from a failure of Your hardware or software;

(iii) results from a failure of a communication service or other outside service or equipment not within the control of Augusoft, its subcontractors and/or partners,

(iv) is beyond the reasonable control of Augusoft, its subcontractors and/or partners, or

(v) is the result of scheduled maintenance or data backup.

(i) If the service levels in section 7h are not met, You will be provided a pro-rated discount on the next annual subscription fee. This discount will be determined as follows:

1. Divide the number of minutes during which the above System Availability standards were not met, by 525,600 (number of minutes in a 365 day period). This will supply the % of annual downtime outside the agreed uponSLA.

2. Multiple Your annual subscription fee by this % to determine the discount on your annual subscription fee and communicate this request to Augusoft along with the reason and timing of the SLA not being meet.

3. Augusoft reserves the right to review and approve said request within 30 days of its receipt.

(j) Except for the maintenance and service level agreement provision above, We shall have no warranty obligations or liability under this

Agreement with respect to problems which may arise due to Internet service limitations or interruptions of service that are outside Our control. While We will use commercially reasonable efforts to make Lumens available to You via the Internet 24 hours a day, 7 days a week, things happen that We can’t control that could affect your access. Examples of this include power failures, communication failures due to bandwidth congestion or other interruptions, failures or interruptions caused by viruses, unauthorized access or damage caused by hackers, equipment failure or nonperformance at Your place of business, acts of God, etc. In some cases, We need to plan downtime to maintain or upgrade Lumens, in which case We will give You notice in advance.

(k) The warranty in Section 3(d) above is exclusive and in lieu of all other liabilities, obligations, conditions and/or warranties, expressed or implied. WE DISCLAIM ALL OTHER WARRANTIES EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING BUT NOT LIMITED

TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED

AND/OR STATUTORY WARRANTIES ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF

TRADE. You hereby waive all other rights, obligations, and/or warranties and assume all risks and liabilities in respect thereof. We make no warranty that the operation of Lumens will be error free or without interruption. We do not warrant that Lumens will operate with any hardware or software.

8. Limitation of Liability.

IN NO EVENT SHALL WE BE LIABLE FOR ANY LOSS OF OR DAMAGE TO REVENUES, PROFITS OR GOODWILL, OR OTHER

SPECIAL, INCIDENTAL, DIRECT, AND CONSEQUENTIAL DAMAGES OF ANY KIND RESULTING FROM OUR PERFORMANCE OR

FAILURE TO PERFORM PURSUANT TO THE TERMS OF OUR AGREEMENT, OR RESULTING FROM THE FURNISHING, PERFORMANCE, OR USE OR LOSS OF ANY SOFTWARE OR OTHER MATERIALS DELIVERED TO YOU BY US, INCLUDING

WITHOUT LIMITATION ANY INTERRUPTION OF BUSINESS, WHETHER RESULTING FROM BREACH OF CONTRACT OR BREACH

OF WARRANTY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE MAXIMUM AGGREGATE AMOUNT OF MONEY DAMAGES FOR

WHICH WE MAY BE LIABLE TO YOU UNDER THIS AGREEMENT, RESULTING FROM ANY CAUSE WHATSOEVER, SHALL BE

LIMITED TO THE ACTUAL AMOUNTS YOU PAID US UNDER THIS AGREEMENT.

C. SUBSCRIPTION AGREEMENT

1. Promise to Maintain Lumens.

(a) As stated above, We will maintain the Lumens software package You have purchased on a server connected to the Internet. As long as You have a valid fully paid subscription with Us (and aren’t otherwise in default under the Agreement) We will also:

(i) install any software fixes at Our discretion;

(ii) provide and maintain a server; and

(iii) create daily backups of the software and data as is customary for Your edition of Lumens.

(b) Your subscription shall only extend to the Lumens software that remains on Our server.

(c) In the event that some portion of the Lumens software is to be distributed or downloaded by You or by authorized parties affiliated with

You (i.e. clients or students), installation of a software fix for such part of Lumens that is distributed or downloaded shall consist of the following:

(i) provision of a “link” to files containing the software fix in download-able format; and

(ii) placement of the “link” in a place and manner that makes it readily accessible to You or Your authorized parties on a website to which We direct You.

(d) Nothing in this section of these Standard Terms may be construed as any sort of warranty regarding any software fix installed or provided to You.

2. Training

We will provide You, either as part of the original license fee or for purchase, reasonable training customarily required to implement the edition of Lumens for which you have a subscription. We will bill training requested after implementation to You on a time and materials basis, and You agree to make payment for the same.

3. Termination/Access Restriction

We reserve the right, in Our sole discretion, to terminate Your access to any or all of Our products, websites, and related services or any portion thereof at any time, without notice, if the subscription fee and/or license fee is not timely paid. We will provide thirty (30) day notice and opportunity to cure payment defaults. Any other violation of this agreement by You may result in the immediate termination of access to the Lumens software, in addition to such other remedies as may be available to Us by virtue of law or the Agreement. In no event shall

We be liable for terminating Your access to and use of Lumens, including the loss of data and records caused by this termination.

Termination will not relieve You of the obligation to pay any fees or costs owing to Us at the time of termination, or as a result of the termination. Late Fees will apply as described in Section D.

D. MISCELLANEOUS TERMS

1. Payment

When You sign the Order Form You agree to pay the initial annual subscription fee and any additional fees associated with additional services or customizations that are noted on the Order Form. Unless the Order Form states otherwise, any amounts paid to Us are non-cancellable and non-refundable and these fees are due within 30 days from order execution date. If payments are late the following applies:

Payments not received within 30 days of the due date will result in a permanent $150 increase in your subscription fee for all ensuing years. Multiple late payments will result in multiple increases.

If We shut down Your site due to lack of payment (60 days past due), there will be a $500 reactivation fee charged to You. The reactivation must be requested within 3 months of the site being shut down, and will only be completed if payment for past due amounts and the reactivation fee have been received.

In addition, You agree to pay Us on demand all costs and expenses We incur (including attorney’s fees and internal employee’s wages) in connection with the collection of any past due balances, if ordered by a court of law. Finally, if You fail to pay any amounts owing to Us

We may terminate Your license to use the Lumens software. If We terminate Your license for non-payment, We are not responsible for any direct or indirect damages or claims of any sort that may occur.

2. Term

The initial term of this contract shall be through December 31, 2021, and the University shall have an option to renew for four (4) additional one-year terms. The University must notify Augusoft of its intent to renew or not renew at least thirty (30) days prior to the end of the initial term or any renewal term.

3. Termination of Use and Return of Data. Upon termination of this Agreement for any reason, You will immediately cease use of any and all of Our products (including Lumens), websites, integration and other components, and related services or any portion thereof. Within fifteen (15) days of termination of this Agreement, You will: (i) promptly deliver to Us all of our data in the format reasonably requested by

Us, (ii) permanently delete, destroy, uninstall and/or erase any and all active copies (whether production, development, testing, or other active copies) of Our data (including but not limited to the products, websites, integration and other components, and related services or any portion thereof) saved or stored on any and all media, including media or servers owned or controlled by a third party provider, and render such data permanently irretrievable in perpetuity, and (iii) certify in writing by a company officer that You have completed and complied with the foregoing requirements.

3. Change Order

When You sign the Change Order Form You promise to pay both the difference in license fee and annual subscription fee noted. This

Change Order Form is governed by the payment and terms previously outlined in D1 and D2. Unless the Order Form states otherwise, any amounts paid to Us are non-cancellable and non-refundable and these fees are due within fifteen (15) days from order execution date.

4. Transfer by Operation of Law

In the event that the license to Lumens created under this Agreement would transfer by operation of law from You to a third party, including a bankruptcy trustee, the license granted to You will automatically and immediately terminate without any notice from Us.

5. Amendments

This Agreement may not be modified or altered except in writing signed by both parties.

6. Applicable Law

If You are a publicly funded, non-profit educational institution, then Our Agreement will be governed by the laws of the state or province where You are located. In any other case, this Agreement will be governed by the laws of the State of Minnesota without regard to its conflicts of law rules, and all rights and remedies of the parties shall be determined under the laws of the State of Minnesota.

7. Notices

Any notices given under the Agreement must be in writing and will be considered to have been given when:

(a) delivered in person,

(b) transmitted by facsimile (with written confirmation of successful transmission), or

(c) after five (5) days from the date they are deposited in the United States mail, postage prepaid, registered or certified mail, addressed as follows:

If to Us: Augusoft, Inc.

Attn: Cem Erdem, President and CEO

8441 Wayzata Blvd., Suite 200

Minneapolis, MN 55426-1360 info@augusoft.net

Main: 763.331.8300 ∙ Fax: 763.331.8349

If to You: At Your address on the Order Form.

8. Severability

If any term or provision of this Agreement is found to be illegal or unenforceable, it will be considered to have been stricken from the

Agreement without affecting any other provision or term.

9. Breach

No consent by either party to, or waiver of, a breach of this Agreement by the other party, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different, continuing or subsequent breach.

10. Materials You Provide to Us

You may comment on Your use of Lumens, and We welcome those comments. Any comments, feedback, notes, messages, ideas, suggestions or other communication (collectively “Comments”) that You send to Us shall be and remain Our exclusive property. Your submission of Comments shall constitute an assignment to Us of all copyrights therein, and You grant Us permission to use, reproduce, disclose, publish and distribute any Comments without compensation to You. In addition, We will have a royalty-free, worldwide, transferable, perpetual, and irrevocable license to use or incorporate into the Lumens software any suggestions that You might make, or any enhancements or modifications We might make at Your request.

mailto:info@augusoft.net

11. Intellectual Property Rights

The content of Our website and various marketing materials are also Our exclusive property, as are Our logo and related intellectual property. All of these items, and anything else We create, are protected by trademark and copyright laws.

12. Website Links

Our websites and products may contain integrated content or links to other websites ("Linked Sites). The Linked Sites are not under Our control and We are not responsible for the contents of any Linked Site, including, without limitation, any link contained in a Linked Site, or any changes or updates to a Linked Site. We are not responsible for web casting or any other form of transmission received from any

Linked Site. We provide these links to You only as a convenience, and the inclusion of any link does not imply Our endorsement of the site or any association with its operators.

13. Mutual Indemnification

Under certain circumstances We will indemnify You from claims brought by third parties. Likewise, there are circumstances under which

You must indemnify Us from third party claims.

(a) Our Indemnification of You: We will defend, indemnify and hold You harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (collectively called “Claims”) made or brought against You by a third party, as follows:

(i) For personal injury or property damage directly caused by Our willful misconduct or negligence while on Your premises.

(ii) For infringement claims brought by third parties claiming that your use of the Lumens software violates their intellectual property rights.

(b) Your Indemnification of Us: You will agree to provide liability protection for your officers, employees and agents while acting within the scope of their employment. You further agree to hold harmless the Owner, its officers, agents and employees from any and all liability, including claims, demands, losses, costs, damages, and expenses of every kind and description (including death), or damages to persons or property arising out of or in connection with or occurring during the course of this agreement where such liability is founded upon or grows out of the acts or omissions of any of the officers, employees or agents of the University of Wisconsin System while acting within the scope of their employment where protection is afforded by ss. 893.82 and 895.46(1), Wis. Stats.

(c) Conditions: These indemnities will be conditioned on the party seeking indemnity: (1) promptly providing the other with a written notice of the Claim; (2) giving the other party sole control of the defense and settlement of the Claim, provided that the other party may not settle any Claim unless the party seeking indemnity is unconditionally released from liability; and (3) at no charge, providing the other party with all reasonable assistance relative to the defense of the Claim.

(d) Exclusive Remedies: The indemnities in this section will be the exclusive remedies for infringements in connection with this Agreement.

14. Entire Agreement

This Agreement is the entire agreement between the parties concerning Lumens and supersedes all prior agreements, whether written or oral, between us.

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