CONTENT LICENSE AGREEMENT
This Content License Agreement (“Agreement”) is entered by the undersigned (“User”) and Toole Bertz & Associates LLC, 6331 W. McKinley Ave., Milwaukee, WI 53213-2951, a Wisconsin limited liability company (the “Provider”).
WHEREAS, the Provider is the owner or the exclusive licensee of certain original written materials designed to serve as a communication between investment advisors and their investor audiences (“Materials”), which are made available in the Toole Bertz & Associates LLC Advisor Content Library (“Library”) in the form of a one-time purchase or an annual subscription;
WHEREAS, the User desires to obtain the license rights to use the Materials and any of the content contained in the Materials in connection with User’s related business activities (“User’s Business”), and Provider is willing to provide access to the Materials upon the terms and conditions hereafter set forth;
NOW THEREFORE in consideration of the foregoing recitals and the mutual covenants and obligations set forth below, the parties agree as follows:
- License Fee. User agrees to pay the Provider an agreed upon license fee, either for a one-time download of Materials, or for an annual subscription as set forth on Exhibit A attached hereto (“License Fee”) for a license as described in Section 2 of this License Agreement. The License Fee is based on the number of User employees and associates who will have access to “Materials.” All User employees and User associates must register with the Provider to have authorized access to the Library (“Authorized Representatives”).
- Upon payment of the License Fee, the Provider hereby grants to User a non-exclusive, non-transferable license to use, modify, excerpt, reproduce, and publish the Materials solely in connection with User’s business in the ordinary and regular course in strict compliance with the terms and conditions of this License (the “License”). The License explicitly excludes any right to sublicense Materials to any third party in any manner or to sell Materials to any third party in any manner.
3.1 Use of Materials. Consistent with the grant of License, User may use the Materials as its own and may brand the Materials with the name and/or logo of User. User shall not identify, credit, cite, source or otherwise use the Provider’s name in connection with its use of the Materials. The Materials may not be used for any reason that is not in connection with User’s business. The Materials may not be used by anyone other than an Authorized Representative.
3.2 Responsibility for Content. User is solely responsible for verifying that (a) the content contained in the Materials is factually accurate, current and up-to-date, (b) the content is suitable for use in connection with User’s business, including any fiduciary standard and/or suitability requirement, and (c) the use of the content in connection with User’s business is in compliance with any Federal, State and local laws and regulations that govern or apply to User’s business, including without limitation, providing necessary or proper legal disclosures prior to use. User is also responsible for obtaining any approval for use of the Materials prior to providing the Materials to clients.
3.3 Photos and Other Graphics. Unless specifically identified as being created by the Provider, any photographs, graphs or other graphics contained in the Materials (“Graphics”) are for illustrative purposes only and are not part of the License. User shall remove and replace all Graphics with User’s own graphics prior to providing the Materials to clients and shall be solely responsible for obtaining any permissions to use any such graphics from third parties pursuant to any copyright or other laws.
- User may elect to receive Materials on a Per Article/Update Basis or as a Three Article Bundle. User shall have the right to use the Materials upon payment of the applicable fee.
- Access to Material. The Materials will be maintained on the Provider’s website. User will gain access to the website via a user name and password.
- Limited Liability.The Provider’s aggregate monetary liability to User for any reason and for any and all causes of action in connection with this License Agreement, whether in contract, tort or otherwise, shall not exceed the amounts paid by User to the Provider for the License Fee. The Provider shall not be liable to User for any cause of action, whether in contract, tort or otherwise, for any indirect, special, incidental, consequential or punitive damages under any circumstances.
- Disclaimer of Warranties.The Provider expressly disclaims all warranties with respect to the content of the Materials, express and implied, including but not limited to the warranty of merchantability and the warranty of fitness for a particular purpose. In addition, the Provider expressly disclaims all warranties, express or implied, that the content of the Material is in compliance with any Federal, State or local rule or regulation that governs or applies to User’s business, including any fiduciary standard or suitability rule.
- User will defend, indemnify and hold harmless the Provider against, for and from any and all claims, actions, proceedings, damages, liabilities and expenses of every kind, including reasonable attorney’s fees and expenses, resulting from or arising out of any claim relating to User’s use of the Materials, including but not limited to, User’s use of the Materials in violation of any Federal, State or local law or regulation that governs or applies to User’s business.
- Termination for Cause. The Provider reserves the right to terminate this License Agreement and the License with written notice to User if User violates any term of this License. In the event the Provider terminates this License Agreement and the License as a result of User’s breach, User will not be entitled to a refund of the License Fee.
- Binding Effect. This License Agreement will be binding on the parties and their respective heirs, personal representatives, successors, and permitted assigns, and will inure to their benefit.
- This License Agreement may be amended only by the written consent of the parties hereto.
- No Assignment.This License Agreement may not be assigned by operation of law or otherwise without the written consent of the parties hereto.
- No Third-Party Beneficiaries. The parties do not intend to confer any right or remedy on any third party.
- In the event any provision of this Agreement will finally be determined to be unlawful, such provision will be deemed to be severed from this Agreement and every other provision of this Agreement will remain in full force and effect.
- Force Majeure.Neither party shall be responsible for any failure or delay in performance of its obligations under this Agreement because of circumstances beyond its reasonable control, including, without limitation, acts of God, network failures or telecommunications failures.
- Waiver of Rights.The failure of a party to insist upon strict adherence to any provision of this Agreement shall not be considered or deemed to be a waiver or considered or deemed to deprive that party of the right thereafter to insist upon strict adherence to that provision or any other provision of this Agreement.
- Choice of Law and Venue.This License Agreement shall be governed by the laws of the State of Wisconsin. Provider and User hereby submit to the jurisdiction of, and waive any venue objections against, the State of Wisconsin and the federal courts of the United States located in Wisconsin in respect of all actions arising out of or in connection with the interpretation or enforcement of this Agreement, and the Provider and User each consent to the personal jurisdiction of such courts for such purposes.
- More than one counterpart of this Agreement may be executed by the parties hereto, and each fully executed counterpart will be deemed an original without production of the others.
- Entire Agreement. This License Agreement contains the entire understanding of the parties regarding the subject matter of this License Agreement and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties with respect to the subject matter of this License Agreement.
- Attorney’s Fees.If any litigation is instituted to interpret, enforce, or rescind this License Agreement, including but not limited to any proceeding brought under the United States Bankruptcy Code, the prevailing party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing party’s reasonable attorney’s fees and other fees, costs, and expenses of every kind, including but not limited to the costs and disbursements specified in ORCP 68 A(2), incurred in connection with the arbitration, the litigation, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.