Wimba Collaboration Suite Express Integration Component License Agreement
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IMPORTANT – READ CAREFULLY: This License Agreement (this “License Agreement”) is a legal agreement between Wimba, Inc. (Wimba) and the School District, School or other entity on whose behalf you are accepting this Agreement (the “Customer”) governing Customer’s use of the Wimba Collaboration Suite Express Service and Integration Component, (the “Service”). You hereby agree and represent that you are an authorized representative of the Customer on whose behalf you are seeking to gain access to the Service. By clicking the “I Agree” button below You agree to be bound by, and are binding the Customer to the terms of, this License Agreement. Capitalized terms not otherwise defined in this License Agreement have the meanings set forth in Section 3.

1. Intellectual Property Rights.
(a) This is a License Agreement not an agreement for sale. Title, ownership rights and intellectual property rights in and to the Service are owned by Wimba and are protected by United States copyright law and international treaty provisions. Customer’s rights to use the Service are specified in this License Agreement and Wimba retains all rights not expressly granted to the Customer in this License Agreement and nothing in this License Agreement constitutes a waiver of Wimba’s rights under U.S. or international copyright laws or any other federal or state law.
(b) Customer agrees to undertake all reasonable measures to preserve the confidentiality of the Service, including specifically the Software and source code from unauthorized access by persons not bound by this License Agreement by exercising the same degree of care (but not less than reasonable care) as Customer exercises to protect the confidentiality of its own important proprietary information and other trade secrets and intellectual property. You and Customer agree to notify Wimba immediately of any unauthorized use of the Service.

2. Grant of License.
(a) Grant. Subject to the provisions of this License Agreement, Wimba hereby grants Customer for the License Period a non-exclusive, non-transferable, worldwide license, without the right to sublicense, to use the Integration Component, in object code format only, and the accompanying Documentation, solely for the purposes of delivering the Service to End Users. Customer acknowledges that this license is restricted to use only by students, faculty or staff that are affiliated with Customer unless otherwise set forth in a subsequent agreement signed in writing by both parties.
(b) Restrictions on Customer.
(i) Customer may not: (x) remove, alter or conceal any Marks on the Service or any component parts; or (y) copy, modify, translate, reverse engineer, decrypt, decompile or disassemble (except to the extent expressly permitted by applicable law or otherwise seek to discover the source code for the Service or create derivative works based on the Service, nor may Customer permit any third party to do any of the foregoing.
(ii) Customer may not use the Service or any part thereof except as specifically provided and permitted by this License Agreement and, without limiting the generality of the foregoing, specifically, Customer may not: (v) sell, license or otherwise transfer, or permit any third party (including any subsidiary, parent, or affiliate not expressly licensed under this Agreement) to use (except as expressly permitted by this Agreement), sell, license or otherwise transfer, the Service or any part thereof; (w) rebrand with Marks other than Wimba’s Marks any part of the Service; (x) resell or distribute the Service, or use it on a timeshare or service bureau basis, or use it to operate a website; (y) attach any of Customer’s Marks in or to any part of the Service other than as otherwise approved in advance by Wimba; or (z) in any other way use the Service to provide a service directly competitive with Wimba or seek to gain economic advantage from the Non-permitted Use of the Service.
(iii) Customer agrees to permit Wimba to audit compliance with this License Agreement, as Wimba deems reasonably necessary.
(iv) Customer hereby agrees, understands, and permits the Service to collect User Information from End Users who have opted to share information with the Service for the purposes of operating the Service. Such User Information shall be used in accordance with Wimba’s Privacy Policy which is available on the Wimba website.

3. Definitions.
For the purpose of this License Agreement, the following defined terms will mean:
“Content” means all material whether in text, video, or pictorial form including, without limitation, design, text, images, animations, audio, music and interactive features loaded onto the Service by Customer or End Users.
“Documentation” means all media and printed materials, and any additions, corrections, modifications relating to the Software including all copyrights, trademarks, patents, inventions, trade dress, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto, whether provided in physical form or received online in electronic form, all as components of the Service.
“End User” means any students, faculty or staff affiliated with Customer.
“Wimba” means Wimba, Inc., a Delaware Corporation, located at 10 East 40th Street, Floor 11, New York, N.Y. 10016 and, as the context may require, any or all of its suppliers and/or licensors.
“Initial Hosting Period” means the period beginning on the date of this agreement and ending on October 31, 2009.
“Integration Component” means the software provided to Customer by Wimba, which enables customer’s end-users to access the Service, and for the Service to obtain information, including enrollment information, about the customer’s end-users. The Integration Component may be a Blackboard Building Block™, a Blackboard PowerLink™, or a similar component.
“License Agreement” means this License Agreement by and between Wimba and the Customer.
“License Period” means in perpetuity.
“Limited Warranty” means the warranty described in Section 5 of this License Agreement.
“Marks” means a party’s icons, logos, trade marks, trade names, trade dress or other identifying materials used to promote or assert intellectual property rights in the products or business of that party.
“New Version” means any release, option or future product of the Software that Wimba licenses separately.
“Non-permitted Use” means any use of the Service prohibited by Section 2.
“Service” means the current version of the Wimba Software, the Documentation and the associated services.
“Software” means the Wimba proprietary software program or programs, any software programs licensed by Wimba from a third party and any modified, updated, or enhanced versions of such programs that Wimba may provide to Customer as a part of the Service including, without limitation, the Wimba-provided Integration Component.
“Upgrades” means linear improvements in functionality, amendments, enhancements, or changes (but not New Versions) of the Software or the Documentation issued by Wimba and made available to Customer during the License Period.
“User Information” means information about End Users collected from Customer, by the Service, necessary for the operation of the Service, including Full Names, E-Mail Addresses, and Enrollments.
“You” and “Your” refers to the authorized representative of the Customer who is attempting to access the Service and who represents on behalf of the Customer that he or she has the requisite power and authority to bind the Customer to the terms and conditions of this License Agreement.

4. Third Party Software and publicity.
(a) The Service incorporates software, components and other intellectual property licensed from third party licensors. Customer agrees to comply with the applicable terms of any Wimba third party license of which Customer has been notified by Wimba.
(b) Wimba may name Customer as a licensee of the Wimba Service in its marketing materials, and may use Customer’s Marks in connection therewith.

5. Support, Training and Hosting Services.
Wimba will provide its customary Level 1 Support to you at no cost. Training on the use of the Service for you and your employees is available both in a live, online environment, as well as on-site at a nominal rate. Hosting of the Software beyond the Initial Hosting Period will be provided at the then-prevailing monthly rate for such services.

6. Limited Warranty.
(a) Scope. Wimba warrants for Customer’s benefit alone that, for the first thirty (30) days of the License Period, the Service will perform substantially in accordance with the Documentation. All other hardware, software and accompanying materials are provided “AS IS” without warranty of any kind, either express or implied; provided that Wimba will indemnify Customer in connection with claims with respect to third party software to the extent Wimba is indemnified under the relevant third party software license agreement for Customer’s claim. The complete risk as to quality and performance of any non-warranted hardware or software and accompanying material is on Customer. Wimba will not be responsible for any defect that results from Customer’s Non-permitted Use, abuse or other misconduct or conditions outside the control of Wimba. Wimba makes no representations or warranty that the Service or the information or functions contained therein will meet Customer’s requirements or that its operation will be uninterrupted, error-free or secure. The Limited Warranty shall not apply and shall immediately be terminated if (i) Customer engages in any Non-permitted Use; (ii) the Service is subjected to abuse, accident or improper use; or (iii) the Software is used on or in conjunction with hardware or software other than the unmodified version of the Software with which the Software was designed to be used, as described in the Documentation; or (iv) You or Customer violates the terms of this License Agreement in any material respect.
(b) Disclaimer. THIS IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY Wimba, INC. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Wimba, INC. DISCLAIMS ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE SERVICE. UNDER APPLICABLE LOCAL LAW, CUSTOMER MAY HAVE RIGHTS ADDITIONAL TO THE SPECIFIC LEGAL RIGHTS GIVEN HEREUNDER.
(c) Sole Remedy. Wimba’s entire liability and Customer’s exclusive remedy for any breach of warranty shall be at Wimba’s option: (i) to repair or replace any component of the Service that does not meet the Limited Warranty or (ii) if Wimba reasonably determines that it is unable or impracticable to provide the remedy in clause (i), terminate this Agreement. The above remedies are available only if Wimba is promptly notified in writing, during the License Period, upon discovery of the non-conformity by Customer and Wimba's examination of the Service discloses that such non-conformity exists.

7. Wimba’s Remedies.
Customer agrees that any breach by Customer of any obligations under Sections 1 and 2 may cause Wimba irreparable harm and damage and therefore agree that, in addition to any other rights or remedies that may be available to Wimba at law or in equity and notwithstanding the arbitration provisions contained in Section 10, Wimba shall be entitled to appropriate injunctive relief, without the posting of any bond or security. Further, in the event of any use of the Service by an unauthorized person under this License, You agree that Wimba shall be entitled, in addition to any other rights or remedies that may be available to Wimba at law or in equity, to the fees Wimba would have received had Wimba contracted directly with such unauthorized person for the services received by such person for the full period of such Non-permitted Use, based on Wimba’s list prices.

8. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL Wimba, INC. BE LIABLE TO CUSTOMER, YOU, ANY END USER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE EVEN IF Wimba, INC. HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY END USER OR ANOTHER PARTY. FURTHER, IN NO EVENT SHALL Wimba, INC.’S LIABILITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT EXCEED THE LICENSE FEE PAID TO Wimba, INC. HEREUNDER TOGETHER WITH ANY OTHER FEES OR CHARGES PAID BY CUSTOMER TO Wimba, INC..

9. Content and Indemnification.
(a) Wimba does not routinely, and has no obligation to, monitor Content used on the Service. However, Wimba reserves the right to remove Content which it deems, in its sole discretion, will subject it to liability or to be dangerous, offensive, pornographic, or in violation of law or regulations currently in effect, Section 8(b) or any other provision of this License Agreement or of any on-line terms of service located on the Wimba website. Such removal may be immediate and without notice.
(b) You and Customer agree only to use the Service with properly licensed Content that does not violate any applicable law or third party right. Customer agrees to hold harmless, indemnify and defend Wimba, its officers, directors and employees (the “Wimba Indemnitees”), from and against any losses, damages, fines and expenses (including reasonable attorneys fees and costs) arising out of or relating to any claims against the Wimba Indemnitees in connection with (x) Customer’s services, products, materials, data, information, and Content, (y) Customer’s operation of the Service in violation of any third party’s intellectual property rights or other rights or in violation of any law, or (z) Customer’s or Your breach of this Agreement.
(c) Wimba agrees to hold harmless, indemnify and defend Customer, its officers, directors and employees (the “Licensee Indemnitees”), from and against any losses, damages, fines and expenses (including reasonable attorneys fees and costs) arising out of or relating to any claims against the Licensee Indemnitees that the Integration Component infringes any United States copyright, or trade secret; provided that Wimba is promptly notified in writing of such claim. Should the Integration Component become, or in the reasonable opinion of Wimba be likely to become, the subject of such an infringement claim, Wimba may, at its option:(i) obtain the right for Customer to use the Integration Component at Wimba’s expense; (ii) replace or modify the Integration Component to make it non-infringing, or (iii) if Wimba determines neither (i) or (ii) are reasonably available, terminate this Agreement and refund to Customer any fees paid in advance covering the period following termination. Wimba shall have no liability for any claim of infringement based on the use of a superseded or altered release of the Integration Component if the infringement would have been avoided by the use of current unaltered releases. THIS SECTION 8(C) SETS FORTH Wimba, INC.’S ENTIRE LIABILITY AND OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OF PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY RIGHTS.

10. Term; Termination.
(a) This License Agreement will terminate immediately if Customer violates the provisions of this License Agreement or attempts to assign or transfer any of their rights under this Agreement. Wimba may terminate this License Agreement for any reason or no reason at any time with thirty (30) days notice.
(b) Upon any termination of this License Agreement, all Wimba customer support and other services will immediately terminate and Customer’s use of the Service shall immediately terminate. Customer’s obligations under Sections 1, 2(b), 6, 7, 8 and 9 and to pay any accrued charges shall survive any termination of this License Agreement.

11. Governing Law.
This License Agreement shall be governed by the laws of the State of New York without regard to conflict of law provisions and You and Customer consent to the exclusive jurisdiction of the state and federal courts in the State of New York. Without prejudice to the provisions of Section 6 regarding injunctive relief, the parties agree that all unresolved disputes under this License Agreement shall be submitted to arbitration in the State of New York. The arbitration shall be conducted under the rules for commercial disputes (expedited procedure) then prevailing of the American Arbitration Association. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. This License Agreement shall not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.

12. Export Law Assurances.
Customer may not use or otherwise export or re-export the Service or any part thereof except as authorized by United States laws and regulations. In particular, but without limitation, the Service may not be exported or re-exported (i) into (or to a national or resident of) any U.S. embargoed country or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. You and Customer represent and warrant that You and Customer are not located in, under control of, or a national or resident of any such country or on any such list.

13. Government End Users.
If the Service is supplied to the United States Government, the Service is classified as "restricted computer software" as defined in clause 52.227-19 of the Federal Acquisition Regulations and its successors (“FAR”). The United States Government's rights to the Service are as provided in clause 52.227-19 of the FAR.

14. Miscellaneous.
(a) This License Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties, and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter, whether formally rejected by Wimba or not.
(b) This License Agreement may be updated by Wimba at any time by posting an updated version of this Agreement on its website or otherwise making such Agreement available to You. Subject to the forgoing, this Agreement may not be modified except in writing signed by a duly authorized representative of both parties.
(c) Any delay or failure to enforce a provision of this License Agreement shall not be deemed a waiver thereof. If any provision is held to be unenforceable for any reason, such provision shall be amended only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
(d) Neither party will be responsible for any failure to fulfill its obligations due to causes beyond its reasonable control, including without limitation, acts or omissions of government or military authority, acts of God, materials, power or telephone service shortages, interruptions or surges, transportation delays, fires, floods, labor disturbances, riots, wars, terrorist activity or inability to obtain any export or import license or other approval or authorization of any government authority.
(e) This License Agreement is between Wimba and Customer only and not with Blackboard Inc. Customer’s assent to the terms of this License Agreement does not modify or supersede the terms of any agreements that the customer may have with Blackboard Inc. The Customer acknowledges that Blackboard Inc. assumes no obligations or liabilities and makes no warranties with regard to Customer’s use of the Service or the Integration Component.
(f) Both parties are independent contracting parties. This License Agreement shall not constitute either party as principal and agent, partners, joint venturers, or employer and employee.