Revised and Effective: October 1, 2019

Wendal® is committed to protecting your privacy and providing a safe online experience for all of our users while offering the highest quality of services. This Privacy Policy describes what personal information Wendal gathers and how we use it, the rights afforded to you under certain data protection laws, and the measures we maintain and implement to safeguard personal information provided to us.

This Privacy Policy addresses how we collect, use, and retain personal information on individuals who access our Website (“wendal.com”), use the Ask Wendal personality assessment application (“Professional Surveys”), or who otherwise provide us information for our routine business purposes.

IF YOU DO NOT AGREE WITH HOW WENDAL COLLECTS, USES, AND DISCLOSES YOUR PERSONAL INFORMATION, INCLUDING THE DISCLOSURE OF YOUR PROFESSIONAL SURVEY RESULTS WITH THIRD PARTIES, THEN DO NOT ACCESS WENDAL’S WEBSITE OR PARTICIPATE IN WENDAL’S PROFESSIONAL SURVEYS. ANY ACTIVE PARTICIPATION IN WENDAL’S PROFESSIONAL SURVEYS WILL BE DEEMED YOUR CONSENT TO, AND ACCEPTANCE OF, THIS PRIVACY POLICY.

Defining Personal Information

For purposes of this Privacy Policy, the term “personal information” refers to any information that can be used to distinguish or trace an individual’s identity, either alone or when combined with other personal or identifying information, that is linked or linkable to a specific individual, and that is subject to, or otherwise afforded protection under, a data privacy law, statute, or regulation.

The Personal Information We Collect and Why We Collect It

Users Accounts and Profiles. We collect personal information on all individuals who register for, and create a profile on, our Website. Here, you are required to provide your name, email address (which serves as your user name), job title, and account password. If you do not provide this information, then we will be unable to verify your registration and provide you with a user account and profile.

Professional Surveys and Responses. Wendal’s Professional Surveys are designed to collect and analyze information about specific industries and employers in order to assist our customers and other individuals in making decisions about businesses, such as potential investment opportunities. Toward that end, individuals participating in the Professional Surveys must provide a broad range of information related to their business, including the following: business investment history; business sector; revenue, expenses, and similar financial data; business location; corporate structure; corporate records (e.g., articles of incorporation, shareholder agreements, term sheets); and, employment history of senior managers and personnel. In addition, individuals participating in the Professional Surveys undertake a “personality test” and are required to provide personal information in response to questions therein, including your management style; communication preferences; financial ideology; moral, behavioral, and phycological predispositions; the type of car you drive; near death experiences; and personality descriptors. All individuals who participate in Wendal’s Professional Surveys will be provided a score/grade, which will be transmitted and disclosed to Wendal’s customers (e.g., third party investors, corporate subscribers of Wendal’s Professional Surveys), who may rely upon such information and data, in full or in part, to decide whether to invest, or otherwise engage with, your business. In order to provide an accurate score/grade, the individuals participating in the Professional Surveys must answer all of these questions accurately.

Demographic/Special Categories of Data. Wendal’s Professional Surveys may also collect demographic data, which may include special categories of data, such as data related to an individual’s race, ethnicity, and trade union membership. All such demographic questions are purely voluntary, and participants will not be penalized for not answering such questions. Wendal uses this demographic information to analyze the survey participants and, at times, to compare results among different groups of participants.

Consumer Inquiries & Communications. There may be other times where you provide Wendal with information about yourself or others. For example, if you communicate with Wendal’s helpline or a sales representative, you may provide your personal information, such as contact data (e.g., name, address, telephone, email) and other personal information related to your communication (e.g., employer, consumer preferences, and interests). We will collect and retain the personal information that we think is reasonably necessary to your inquiry or that is otherwise related to your communication. We will collect and retain such information in accordance with the purposes you provided it, and with our legitimate business interests.

Vendors, Suppliers, and Similar Business Contacts. In addition, we may collect and process the following categories of personal information concerning our customers, vendors, suppliers, and similar business contacts: name, contact details, job title, bank account details and financial information (including credit/income history), transaction history, and business correspondence and communications. We process this information to facilitate routine and common business practices, such as those related to sales orders and management, promotion and quotation submitting, warranty management, credit collection, compliance with legal requirements, tax and accounting purposes, and defense or promotion of our interests and claims.

Deidentified and Aggregated Data

Wendal creates statistical, aggregated data relating to individuals that participate in our Professional Surveys in order to improve and enhance Wendal’s learning capabilities and prediction accuracy. Aggregated data includes data derived from personal information, but which is rendered anonymous and does not identify, or cannot be linked to, any individual.

Cookies and Automated Tracking

We use a tool called “Google Analytics” to collect information about individuals who use our Website. Google Analytics collects information such as how often users visit this Website, what pages they visit when they do so, and what other sites they used prior to coming to this Website. We use the information we get from Google Analytics only to improve this Website. Google Analytics collects only the Internet Protocol (IP) address assigned to you on the date you visit this site, rather than your name or other personal information. We do not combine the information collected through the use of Google Analytics with any personally identifiable information. Although Google Analytics plants a permanent cookie on your web browser to identify you as a unique user the next time you visit this site, the cookie cannot be used by anyone but Google. Google’s ability to use and share information collected by Google Analytics about your visits to this Website is restricted by the Google Analytics Terms of Use and the Google Privacy Policy. You can prevent Google Analytics from recognizing you on return visits to this site by disabling cookies on your browser. Google Analytics also uses electronic images known as web beacons (sometimes called single pixel gifs) and are used along with cookies to compile aggregated statistics to analyze how our site is used. You can find additional information on how to install a browser add-on to prevent your data from being used by Google Analytics at tools.google.com/dlpage/gaoptout. For the cases in which personal data is transferred to the United States, Google has self-certified pursuant to the EU-US Privacy Shield. To receive the most recent information concerning how Google uses your personal information and other data, please visit google.com/policies/privacy/partners. We do not collect information about your online activities over time and across third-party websites or other online services (behavioral tracking).

Disclosure of Personal Data

We do not sell or rent your personal information to another business or a third party for monetary or other valuable consideration, and we only share or provide access to your personal information in the following circumstances:

Disclosure to Corporate Subscribers. All individuals who participate in Wendal’s Professional Surveys will be provided a score/grade, which will be transmitted and disclosed to Wendal’s customers (e.g., third party investors, corporate subscribers of Wendal’s Professional Surveys), and who may rely upon such information, in full or in part, to decide whether to invest, or otherwise engage with, your business. By participating in the survey, you hereby direct Wendal to intentionally disclose your score/grade and your personal information associated with it, to Wendal’s customers (e.g., third party investors, corporate subscribers of Wendal’s Professional Surveys) to intentionally interact with such third parties, provided the third parties do not sell the personal information.

Service Providers and Consultants. Any personal information that is provided to Wendal is made available to our technical agents, service providers, and consultants who make our Website and other products and services available to you. For example, Wendal uses Microsoft Azure to assist with the platform administration and maintenance of our Professional Surveys. Microsoft Azure’s terms and conditions, including its privacy policy, can be accessed at azure.microsoft.com/en-us/support/legal/. We may also disclose your personal information to agents and third party consultants to assist with routine business administration, our legal and regulatory compliance, or to investigate or defend our business interests.

Required Disclosures. We may disclose personal information with courts, tribunals, opposing or other related parties to any legal proceedings and their professional advisors, in response to a court order, subpoena, civil discovery request, other legal process, or as otherwise required by law.

Legal Compliance and Protecting Wendal’s Interests. We may disclose your personal information with any third party when we believe disclosure is necessary to comply with the law or to protect Wendal’s rights, interests, or property. We reserve the right to investigate any fraudulent or other activities involving Wendal’s property or interests, including our Professional Surveys, and to disclose any information reasonably necessary for any of these purposes, including to law enforcement or regulatory authorities and with any other organization.

Corporate Restructuring. We may disclose your personal information in the event of a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of Wendal’s business or assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which your personal information held by Wendal or our Website users is among the assets transferred.

Data Retention Policy and Criteria

For individuals who participate in Wendal’s Professional Survey or otherwise engage with us as consumer, Wendal retains your personal information for the time period reasonably necessary to satisfy the purpose for which it was collected or as long as necessary to comply with legal obligations or for the establishment, exercise or defense of a legal claim. For our vendors, suppliers, and other business contacts, we retain your personal information for the duration needed to complete or facilitate our contract, agreement or engagement, and for a reasonable amount of time thereafter in accordance with our legitimate business needs and functions. To the extent that Wendal transmits and discloses your Professional Survey score/grade, and your personal information associated with it, to Wendal’s customers (i.e., third party investors, corporate subscribers of Wendal’s Professional Surveys), the data and personal information will be subject to the data retention schedule set forth by Wendal’s customers in their sole discretion.

Data Localization and International Transfers

The information (including personal information) that Wendal collects and uses is stored in the United States. If you are located outside of the United States, please be aware that information you submit to us will be transferred to the United States, and that the United States may not provide the same level of protection as the laws in your country. Wendal does *not* participate in the U.S. Privacy Shield program. In addition, Wendal’s third party service providers may collect and retain your information in a jurisdiction outside your country of residence. By continuing to provide us such information you hereby consent to the transfer of your information to the United States, or these other locations, in accordance with this Privacy Policy.

Data Safeguards

Wendal has implemented commercially reasonable measures to protect the personal information it collects from loss, misuse, and its unauthorized access, disclosure, alteration, and destruction. Please note that despite our reasonable efforts, no security measure is perfect or impenetrable, and we cannot guarantee the full security of your personal information. In other words, you provide us with your personal information at your own risk and we disclaim any liability for the loss, misuse, or compromise of your personal information.

Your Responsibilities and Representations

With regard to any personal information that you provide Wendal, regardless of whether that personal information relates to you or a third party, you hereby represent and warrant to Wendal that (i) such personal information is accurate and complete, (ii) you have the lawful basis to provide Wendal with such personal information, and (iii) you have provided this Privacy Policy to, and received consent from, any third party whose personal information you have provided to Wendal. You further represent that you are at least eighteen (18) years of age or older and any personal information provided to us relates to, and only to, an individual at least eighteen (18) years of age.

Your Rights and Privileges

Depending on the jurisdiction in which you reside, you may have the following rights with respect to the personal information. If you wish to exercise any of these rights, please contact us in accordance with the instructions provided below in the “Contact Information” section. We may need to collect and process information about you solely for the purpose of responding and satisfying any such data request.

Marketing. You may, at any time, request that we stop sending you marketing or information-related materials by contacting us directly in accordance with the instructions provided below in the “Contact Information” section.

California Privacy Rights. Pursuant to California’s “Shine the Light” law, California residents who provide personal information (as defined in the applicable statute) to obtain products or services for personal, family, or household use are entitled to request and obtain from us, once a calendar year, information about the personal information we shared, if any, with other businesses for marketing uses. Wendal does not, at any time, share your personal information with a third party with whom we know, or have reason to believe, uses your personal information to undertake independent direct marketing. Wendal is not subject, and is not legally required to respond to data requests undertaken pursuant, to the California Consumer Privacy Act of 2018, as amended (“CCPA”). However, if you have questions or concerns about Wendal’s data processing activities, please contact in accordance with the instructions provided below in the “Contact Information” section, and we will seek to accommodate any question or request you may have.

Nevada Privacy Rights. Pursuant to Nevada law, a “consumer” (as the term is defined therein), may, at any time, submit a verified request through a designated request address to an “operator” directing the operator not to make any sale of his or her personal information that the operator has collected or will collect about the consumer. For clarity purposes, Wendal does not sell or exchange your personal information for monetary consideration to a third party for the third party to license or sell the information to additional persons or parties.

Children’s Privacy. Our Website is not directed to children under eighteen (18) years of age, and we do not intend to collect personal information from minors. By using this Website, or otherwise engaging with Wendal, you represent and warrant to Wendal that you are over the age of eighteen (18).

Do Not Track. Some browsers have a “Do Not Track” feature, which permits you to inform websites you visit that you do not want them to track your online activity. These features are not yet uniform across browsers. At this time, Wendal’s Website is not able to respond to “Do Not Track” browser requests.

European Union Privacy Rights. If you are located in the European Economic Area, you may have certain rights with respect to the personal information we have about you. To the extent permitted by the European Union (EU) General Data Protection Regulation (GDPR), and applicable EU Member State data protection laws, you may request the following: access to the personal information we hold about you; that inaccurate, outdated, or no longer necessary information be corrected, erased, or restricted; and, we provide your with your personal information in a format that allows you to transfer it to another entity. You also may withdraw your consent at any time if, and only if, we are solely relying on your consent for the processing of your personal information. You may object to our processing of your personal information where that processing is based on our legitimate interest. For purposes of clarity, we do not engage in any activity that subjects our survey participants, customers, or others to a decision based solely on automated processing, including profiling, which produces legal effects, or similarly significantly results, impacting them. We process your personal information in accordance with the legal bases set forth in the GDPR. For example, our processing of personal information (as described herein) is justified based on the following GDPR provisions and which may overlap: (1) processing is based on your consent; (2) processing is necessary for our legitimate interests as set out herein; (3) processing is necessary for the performance of a contract to which you are a party; and (4) processing is required to comply with a legal or statutory obligation in the EU or in an EU Member State.

You have the right to lodge a complaint with your competent data protection authority. If you wish to exercise any of these rights, please contact us in accordance with the instructions provided below in the “Contact Information” section. We may need to collect and process information about you solely for the purpose of responding and satisfying any data right request you may have.

Changes To Our Privacy Policy

We will occasionally update this Privacy Policy. We recommend that you check the Privacy Policy when you visit our site to be sure you are aware of and understand our current Privacy Policy. If we make material changes to this Privacy Policy or in how we will use or collect your personal information, we will prominently post such changes prior to implementing the change. We will not make material changes in how we handle previously collected personal information that have retroactive effect, unless legally required to do so, and we will, to the extent practicable, email registered Website visitors with information on material changes to this Privacy Policy.

Contact Information

If you have any questions about this Privacy Policy or our privacy practices, or would like to exercise any of the rights described herein, please email us at Privacy@wendal.com.

IMPORTANT: PLEASE READ THESE TERMS OF USE CAREFULLY. BY ACCESSING, INSTALLING, USING, OR RUNNING THE WEB-BASED APPLICATION KNOWN AS “WENDAL”, YOU AGREE TO BE BOUND BY THESE TERMS OF USE AND REPRESENT THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF AND AS AN AUTHORIZED REPRESENTATIVE OF YOUR ORGANIZATION, IF APPLICABLE.

These Wendal Terms of Use (these “Terms of Use” or “Agreement”) form a legal agreement between Wendal Inc., a Delaware corporation (“Wendal”) and the individual, corporation, institution, or organization (“You” and/or “Licensee”) that is accessing and using the Wendal professional survey application and/or the Wendal website at: https://app.wendal.com/ (the “Application”). As used herein, the term Application includes all software components and configurations, online or electronic help files, and operating manuals about the Application (“Documentation”), and any information, reports or results provided by the Application (“Results”).

1. LICENSE

1.1 License Grant. Subject to Your compliance with the terms of this Agreement, Wendal hereby grants to You a limited, non-exclusive, non-transferable. non-sublicensable, revocable, personal license to access and use the Application. For corporate or institutional subscribers of the Application (“Corporate Subscribers”), usage of the Application is subject to any usage limitations set forth in Your written order form or agreement with Wendal (“Order”), and to use exclusively for Your internal business purposes. For individuals, the Application may only be used for Your personal, non-commercial purposes. (The foregoing shall be referred to as the “Permitted Use” as applicable.) The Application is licensed, not sold. All rights not expressly granted to You herein are reserved to Wendal.

1.2 Scope of Access and Use. The Application is for the exclusive use of Authorized Users. As used herein, an “Authorized User” is an individual authorized by You to use the Application. For Corporate Subscribers, Authorized Users includes the employees, contractors, students, and agents that You authorize to use the Application for a Permitted Use. You are responsible for all use of the Application by Your Authorized Users and shall indemnity and hold Wendal harmless for any misuse of the Application by Your Authorized Users.

1.3 License Restrictions. Except as expressly permitted by this Agreement, You shall not, and shall ensure Your Users do not, undertake, facilitate, or otherwise engage in any of the following: (i) copying of the Application, in whole or in part, (ii) modifying, correcting, adapting, translating, enhancing, or otherwise preparing derivative works or improvements of any Application, (iii) renting, leasing, lending, selling, sublicensing, assigning, distributing, publishing, transferring, or otherwise making available the Application to any third party, (iv) reverse engineering, disassembling, decompiling, decoding, or adapting the Application, or otherwise attempting to derive or gain access to the source code of the Application, in whole or in part, (v) bypassing or breaching any security device or protection used for or contained in the Application, (vi) removing, deleting, effacing, altering, obscuring, translating, combining, supplementing, or otherwise changing any trademarks, terms of any Documentation, warranties, disclaimers, or copyright notices or other proprietary rights notices or other symbols, notices, marks, or serial numbers on or relating to any copy of the Application, (vii) using the Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or privacy right of any person, or that violates any applicable law, statute, or regulation, or any judicial or administrative order, rule, or judgment, (viii) using the Application for purposes of benchmarking or competitive analysis of the Application; or in order to develop, use, or create a competitive product, offering, or service; or to compete with the business of Wendal, or otherwise to the detriment or commercial disadvantage of Wendal; (ix) using the Application on any device or equipment not permitted by the Documentation, or (x) access or use the Application in any manner that is inconsistent with the terms of this Agreement.

2 Term and Termination

2.1 Term. The term of this Agreement shall be set forth in the Order or, in the absence of an Order, shall continue until terminated by a party. Without prejudice to any other rights, Wendal may terminate this Agreement immediately upon notice to You if You fail to comply with any of the term(s) hereof. You may terminate this license as provided in your Order or, in the absence of an Order: (a) by providing written notice of termination to Wendal; or (b) by erasing all copies of the Application including all Documentation.

2.2 Effect of Termination or Expiration. In the event of the termination or expiration of this Agreement, the licenses granted hereunder shall immediately terminate and You shall immediately cease all use of the Application and shall destroy any copies of the Application in Your or Your Authorized User’s possession, custody, or control. Termination or expiration of this Agreement shall be without prejudice to any other right or remedy to which Wendal may be entitled under this Agreement or applicable law. Termination or expiration of this Agreement shall not relieve You of Your obligations which survive termination hereof.

3 Security and Audits

3.1 Security Measures. The Application may contain technological measures designed to prevent unauthorized or illegal use of the Application. You acknowledge and agree that: (i) Wendal may use these and other lawful measures to verify Your compliance with these Terms of Use and to enforce Wendal’s rights in and to the Application; (ii) Wendal may deny any individual access to and/or use of the Application if Wendal, in its sole and reasonable discretion, believes that person’s use of the Application would violate any provision of this Agreement; and (iii) Wendal (or a third-party acting on its behalf) may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Your computers, systems and Application, that Wendal may gather or that may be transmitted to Wendal from the Application in order for Wendal to support the Application.

3.2 Audits. For Corporate Subscribers: You grant to Wendal or its third party auditors the right to audit or examine Your records and/or information technology environment to verify Your compliance with the terms of this Agreement and the Order; provided however, that Wendal provides reasonable written notice of the foregoing audit or examination, and such audit or examination is conducted in a manner that does not unreasonably interfere with Your normal business operations. In the event such audit or examination discloses non-compliance with this Agreement, You shall promptly pay to Wendal any applicable license fees that may be due and shall pay for all the cost of the audit or examination described herein in addition to any other remedies available to Wendal at law or in equity.

4 Application Support

4.1 Updates and Upgrades. Wendal shall release bug fixes, patches, corrections or other updates (“Updates”) or new releases (“Upgrades”) to the Application in its sole discretion. All such Updates or Upgrades shall be considered part of the Application and shall be subject to the terms and conditions of this Agreement.

4.2 Support Services. If specified in an Order, Wendal may provide support services for the Application (“Support Services”). Any supplemental product, Application, code, or documentation provided to a You as part of the Support Services shall be considered part of the Application, as applicable, and subject to the terms and conditions of this Agreement.

4.3 Professional Services. Subject to the terms of a separate written statement of work, Wendal may perform professional consulting to You in the form of technical consulting, data management or data consulting services. All such professional services shall be subject to additional charge and the payment terms and other terms and conditions set forth in the statement of work.

5 Fees. Wendal provides the Application under various pricing models including on a transactional or pay-as-you-go basis, as well as on a subscription basis. All access and use of the Application on a transactional basis is subject to the pricing term displayed at the time of the transaction. All access and use of the Application on a subscription model shall be subject to the pricing terms set forth in the Order.

6 Confidential Information. You acknowledge that during the Term of this Agreement You may receive, have access to, or become aware of, trade secrets, proprietary information, or other confidential information of Wendal, including information or data related to the Application (“Confidential Information”). You agree to implement and maintain commercially reasonable security measures to safeguard and protect the secrecy and confidentiality of all such Confidential Information, whether or not identified or marked as confidential at the time of its disclosure, and not to disclose any Confidential Information to any person, firm, or entity other than its own employees who have a “need to know” such Confidential Information related to the Permitted Use. Further, You shall not use or disclose any Confidential Information for any purpose not permitted by this Agreement. Unless otherwise protected by law, the restrictions on disclosure set forth herein shall not apply when, and to the extent that, Confidential Information: (i) is part of the public domain through no action or failure to act by You; (ii) is made available to the general public by Wendal or a third party who is lawfully in possession of such information, not as a result of any action or failure to act on the part of You; (iii) was previously known to You free of any obligation to keep it confidential; (iv) is subsequently disclosed to You free of any obligation to keep it confidential; or (v) is independently developed by You or a third party other than in breach of this Agreement.

7 Intellectual Property

7.1 Ownership. The Application is licensed, not sold. You do not acquire ownership rights in the Application, Documentation, or Results. Corporate Subscriber may use the functionality of the Application to configure professional survey elements to its business needs, including by assigning a weight to certain survey elements. In all such cases, the configurations shall be part of the Application and the property of Wendal. You agree that You will not state, imply or claim ownership of Wendal, the Application, or any Results, or take any actions adverse to the proprietary interests of Wendal in and to the Application.

7.2 IP Protection. You shall, during the Term (i) undertake all commercially reasonable measures to safeguard the Application (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access; (ii) at Wendal's expense, take all such steps as Wendal may reasonably require to assist Wendal in maintaining the validity, enforceability and Wendal's ownership of the intellectual property rights in the Application; (iii) promptly notify Wendal in writing if You become aware of any actual or suspected infringement, misappropriation or other violation of Wendal's intellectual property rights in or relating to the Application; (iv) promptly notify Wendal in writing if You become aware of any claim that the Application, including any production, use, marketing, sale or other disposition of the Application, in whole or in part, infringes, misappropriates or otherwise violates the intellectual property rights or other rights of any third party; and (v) at Wendal’s sole expense, fully cooperate with and assist Wendal in all reasonable ways in the conduct of any legal action by Wendal to prevent or abate any actual or threatened infringement, misappropriation or violation of Wendal’s rights in, and to attempt to resolve any legal actions relating to, the Application.

7.3 Your Data. Wendal shall access and use the information You enter into or transmit to the Application in accordance with the terms of the Wendal Privacy Policy viewable at https://app.wendal.com/ (“Your Data”). Wendal shall use Your Data in order to provide the Application to You, including Results, and to verify the proper use of the Application. In addition, You agree that Wendal shall have the right to use, compile, and monitor all data transmitted to Wendal via the Application, including Your Data, for its own business purposes provided that such data is anonymized and aggregated so that it may not be attributed to You or any specific individual or Licensee. Wendal may use such statistical information to improve the Application and to create new products and services. To the extent You provide Wendal with any feedback, ideas, or technical improvement suggestions about the Application (“Feedback”), You acknowledge and agree that Wendal shall be the owner of all such Feedback and may use and incorporate the Feedback into the Application without compensation or attribution to You. With regard to any personally identifiable information You enter into or transmit to the Application, regardless of whether that personally identifiable information relates to You or a third party, You hereby represent and warrant to Wendal that (i) such personally identifiable information is accurate and complete, (ii) You have the lawful basis to enter into or transmit to the Application such personally identifiable information, and (iii) You have provided the Wendal Privacy Policy to, and received consent from, any third party whose personally identifiable information You have entered into or transmitted to the Application.

8 Disclaimers and Liability

8.1 LIMITED WARRANTY. To the extent that Your use of the Application is provided to You free of charge, Wendal provides the Application to you on an “AS IS” basis without warranties of any kind, express or implied. For Corporate Subscribers, Wendal warrants that the Application will operate in accordance with its Documentation for a period of ninety (90) days after installation. Your sole remedy and Wendal’s sole liability for any breach of warranty shall be for Wendal to repair or replace the Application. The above warranty is conditioned upon Your use of Application in accordance with the terms of this Agreement. YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING WARRANTIES ARE THE ONLY WARRANTIES MADE BY WENDAL REGARDING THE APPLICATION AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH WARRANTIES ARE HEREBY DISCLAIMED.

8.2 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WENDAL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE APPLICATION, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WENDAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WENDAL’S TOTAL LIABILITY TO YOU FOR ANY AND ALL DAMAGES EXCEED THE LESSER OF THE AMOUNT OF THE FEES PAID FOR THE APPLICATION, OR $100. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF A REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

9 Indemnification. You shall indemnify, defend and hold harmless Wendal and its affiliates, employees, agents, officers, directors, shareholders, representatives, successors and assigns from and against any loss, liability, cause of action, cost or expense (including reasonable attorneys’ fees) arising from, arising in connection with or related to: (i) the material breach of any term of this Agreement by You, or any Authorized User; (ii) Your acts and omissions in connection with use of the Application; (iii) Your use of the Application in violation of any applicable law, rule or regulation; or (iv) the violation, infringement or misappropriation by You or any employee or agent of You, of the intellectual property rights of Wendal or the proprietary rights of any third party.

10 Miscellaneous

10.1 Amendments. Wendal reserves the right to change or modify these Terms of Use by displaying an updated copy of these Terms of Use at: https://app.wendal.com/ . All such changes will: (a) be applied prospectively; and (b) will apply to all similarly situated users of the Application. If any changes to these Terms of Use are unacceptable to You, You may terminate this Agreement upon written notice of termination to Wendal or may cease all use of the Application. Continued use of the Application following the effective date of any changes constitutes Your acceptance of the changes. This Agreement may not be amended by any pre-printed terms or conditions of Your purchase order.

10.2 Export Controls. You shall comply with all federal, state, local and foreign laws, regulations, rules and ordinances pertaining to the operations and conduct of Your business and the license granted to You under this Agreement. You may not use or otherwise export or re-export the Application without the consent of Wendal and then only as authorized by United States law. In particular, but without limitation, the Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.

10.2 Governing Law; Disputes. This Agreement shall be governed by the laws of the State of Ohio, excluding its conflicts of law rules. The Federal and state courts in Hamilton County, Ohio will have exclusive jurisdiction of any legal action arising out of this Agreement and each party irrevocably submits to the exclusive jurisdiction of such courts. The parties expressly disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. You acknowledges that Wendal has invested significant resources and expense in the development of the Application and that violations of the terms of this Agreement could cause irreparable harm to Wendal. Accordingly, Wendal shall have the right to seek immediate injunctive relief without the necessity of posting bond in the event of Your breach or threatened breach of any confidentiality obligation, or in the event of Your infringement or misappropriation of Wendal’s intellectual property rights.

10.3 Notice to Government End Users. The Application, including any documentation, is provided to the United States Government with RESTRICTED RIGHTS. The Licensed Application is a “commercial item” developed exclusively at private expense, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined or used in the applicable U.S. Federal Acquisition Regulations (“FAR”). The Application is licensed hereunder only as a commercial item and with only those rights as are granted to all other Licensees pursuant to the terms and conditions of this Agreement. Nothing in this Agreement requires Wendal to produce or furnish technical data for or to You. All Application provided to the U.S. Government pursuant to solicitations issued on or after December 1, 1995 is provided with the commercial rights and restrictions described elsewhere herein. The Application is classified as “restricted computer software” and provided to the U.S. Government with RESTRICTED RIGHTS, as provided under applicable federal acquisition laws and regulations. The manufacturer is Wendal Inc., 910 Madison Ave, Covington, KY 41011.

10.4 Notices. All notices and demands hereunder shall be in writing and shall be served by personal service or by U.S. mail at the address of the receiving party set forth in this Agreement (or at such different address as may be designated by such party by written notice to the other party). All notices or demands by mail shall be by certified or registered mail, return receipt requested, or by nationally-recognized private express courier and shall be deemed complete upon receipt. Should You have any questions concerning this Agreement, or if You desire to contact Wendal for any reason, please write to the following: Wendal Inc., 910 Madison Ave, Covington, KY 41011 Attn: Brad Zapp.

10.5 Miscellaneous. In the event that any term of this Agreement is declared invalid or unenforceable by any court of competent jurisdiction or any federal or state government agency having jurisdiction over the subject matter of this Agreement, the remaining terms and provisions that are not affected thereby shall remain in full force and effect. A waiver of any provision of this Agreement shall only be effective if in a writing signed by the party against which the waiver is claimed. This Agreement may not be assigned by You without the prior written consent of Wendal.

10.6 Entire Agreement. This Agreement together with the Order is the entire agreement between You and Wendal relating to the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the subject matter of this Agreement.

BY ACCESSING AND USING THE APPLICATION, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT.