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Master Software License Agreement

This Master Software License Agreement is incorporated by reference in the Service Order (the "Service Order") between the Webroot entity ("Webroot") and Customer identified in the Service Order (hereinafter referred to as "Licensee"). The "Agreement" means the Service Order, this Master Software License Agreement, any applicable Services Descriptions, any applicable and all attachments, exhibits, appendices, and schedules thereto. The Effective Date of the Agreement is the effective date as shown on the Service Order. By executing the Service Order, Customer agrees to be bound by the all the terms and conditions of the Agreement.

1. DEFINITIONS. In this Agreement, the capitalized terms shall, unless the context clearly requires otherwise, have the meanings as set out in Schedule 1.
2. LICENSE GRANT. Subject to the terms and conditions of this Agreement, Webroot grants to Licensee a perpetual, non-exclusive, non-transferable license, without the right to sublicense, to install and execute the Software for the number of licensed seats for which Licensee has paid the License Fees solely for use by authorized employees, contractors, and users of Licensee for Licensee's internal business purposes in accordance with the Documentation.
3. LICENSE RESTRICTIONS. Licensee acknowledges that the Software and its structure, organization, and source code constitute valuable trade secrets of Webroot. Licensee will limit use of the Software to the number of licensed seats for which Licensee has paid the License Fees and will be responsible for compliance with this Agreement by Licensee's employees, contractors, and users authorized to use the Software. Licensee will not: (a) reproduce, modify, adapt, alter, translate, or create derivative works from the Software; (b) merge the Software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer (except as expressly permitted under Section 14.2) the Software to any third party; (d) use the Software in any service bureau or time-sharing arrangement; (e) remove, alter, or obscure any trademark or proprietary notice (including copyright notices) that appears on or in the Software or the Documentation or on ansy copies made in accordance with this Agreement; (f) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; (g) otherwise use or copy the Software except as expressly allowed under Section 2; or (h) permit any third party to do any of the foregoing. Notwithstanding the foregoing, Licensee may make one (1) copy the Software solely for backup purposes.
4. OWNERSHIP. The Software and Documentation, and all worldwide Intellectual Property Rights therein and related thereto, are the exclusive property of Webroot and its licensors. Except for the limited rights expressly granted under Section 2, Licensee will have no right, title, or interest (whether by implication, estoppel, or otherwise) in or to the Software or Documentation or any Intellectual Property Rights therein or related thereto.
5. DELIVERY; INSTALLATION. Webroot will deliver electronically to Licensee the Software and a license key to activate the Software. Licensee will be responsible for installing the Software and the corresponding license key on its computer(s) as permitted under this Agreement.
6. SUPPORT. Webroot will provide Support for the Software to Licensee pursuant to the terms set forth in Schedule 2. Webroot will provide Basic Support to Licensee for the Software for Subscription Term set forth in the Service Order at no additional charge to Licensee. Silver, Gold and Platinum levels of Support, as described in Schedule 2, may be purchased by Licensee.
7. PAYMENT.
   
   1. Fees. Licensee will pay to Webroot the License Fees and Support Fees, as applicable, within thirty (30) days of the date of the Effective Date in the Service Order. Thereafter, Licensee will pay the applicable Support Fees as specified in the Service Order or in the case of a multi-year Subscription Term, no less than thirty (30) days prior to each anniversary of the Effective Date. All License Fees due hereunder are non-refundable (except as set forth in Sections 9.1 and 10). All payments must be made in U.S. dollars unless expressly agreed otherwise in writing. Any portion of the amounts payable hereunder that is not paid when due will accrue interest at 1.5% per month from the due date until paid.
   2. Taxes. The fees hereunder exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties, and similar charges, and Licensee will be responsible, and will indemnify and hold Webroot harmless, for payment of all such taxes (other than taxes based on Webroot's income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the fees hereunder or the delivery, license, or Support of the Software.
   3. Audit. Licensee will permit Webroot or its representatives to review Licensee's relevant records and inspect Licensee's computer equipment to ensure compliance with the terms of this Agreement. Webroot will give Licensee at least ten (10) days advance notice of any such inspection and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Licensee's normal operations.
8. CONFIDENTIALITY RIGHTS AND OBLIGATIONS.
   
   1. Ownership of Confidential Information. Each party acknowledges that during the performance of this Agreement, it may have access to the other party's Confidential Information (the "Recipient"). The Recipient agrees that such Confidential Information is proprietary to the disclosing party and will remain the sole property of the disclosing party.
   2. Confidentiality Obligations. The Recipient agrees as follows: (i) to use the Confidential Information only for the purposes described in this Agreement; (ii) to hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party, taking precautions at least as protective as those the Recipient employs with respect to its most confidential materials, but in no case less than reasonable precautions; (iii) restrict access to the Confidential Information to Recipient's employees and contractors who have a need to have access to the Confidential Information and who are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement; and (iv) to return or destroy all Confidential Information upon termination of this Agreement.
   3. Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 8.1 and 8.2 will not apply to Confidential Information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the Recipient; (iii) is rightfully communicated to the Recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the Recipient's possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the Recipient without access to the Confidential Information; or (vi) is approved for release or disclosure by the disclosing party in writing without restriction. Notwithstanding the foregoing, the Recipient will be allowed to disclose Confidential Information of the disclosing party to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body; provided that, the Recipient notifies the disclosing party of such required disclosure promptly in writing and cooperates with the disclosing party, at the disclosing party's request and expense, in any lawful action to contest or limit the scope of such required disclosure.
9. WARRANTIES.
   
   1. Software Warranty. During the Software Warranty Period, Webroot warrants that the Software, when used as permitted under this Agreement (including use on the computer hardware and operating system platform supported by Webroot), will operate substantially as described in the Documentation. Webroot does not warrant that the Licensee's use of the Software will be error-free or uninterrupted. Webroot will, at its own expense and as its sole obligation and Licensee's exclusive remedy for any breach of this warranty: (i) use commercially reasonable efforts to correct any reproducible error in the Software reported to Webroot by Licensee in writing during the Software Warranty Period; or (ii) if Webroot determines that it is unable to correct the error, refund to Licensee all License Fees received by Webroot, in which case this Agreement and Licensee's right to use the Software will be terminated. Any such error correction provided to Licensee will not extend the Software Warranty Period.
   2. Disclaimers. The express warranties in this Section 9 are in lieu of all other warranties, whether express, implied, or statutory, regarding the Software, Documentation, and Support, including without limitation any warranties of merchantability, fitness for a particular purpose, title, and non-infringement of third party rights. Except for the express warranties in this Section 9, the Software, Documentation, and Support are provided "As Is" with all faults. In addition, Webroot disclaims all liability for the settings selected by Licensee during installation of the Software to manage the distribution and operation of the Software and for any programs, files, and content on the licensee's computer(s) that the Software identifies as fitting within a defined category and that Licensee removes through its use of the Software. Licensee acknowledges and agrees that it has not relied on any oral or written information or advice, whether given by Webroot, its suppliers, dealers, distributors, agents, or employees.
10. INFRINGEMENT CLAIMS. Webroot will defend at its own expense any action against Licensee brought by a third party to the extent that the action is based upon a claim that the Software directly infringes any U.S. patents or copyrights, or misappropriates any trade secrets recognized as such under the Uniform Trade Secret law, and Webroot will pay those costs and damages finally awarded against Licensee in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Licensee will notify Webroot promptly in writing of such action, give Webroot sole control of the defense thereof and any related settlement negotiations, and cooperate with Webroot and, at Webroot's request and expense, assist in such defense. If the Software becomes, or in Webroot's opinion is likely to become, the subject of an infringement claim, Webroot may, at its option and expense: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software so that it becomes non-infringing; or (c) terminate this Agreement, accept return of the Software and give Licensee a refund for the License Fees received by Webroot from Licensee less a reasonable allowance for the period of time Licensee has used the Software based on a deemed license term of three (3) years. Notwithstanding the foregoing, Webroot will have no obligation under this Section 10 or otherwise with respect to any infringement claim to the extent based upon: (i) any use of the Software not in accordance with this Agreement or for purposes beyond the scope set forth in the Documentation; (ii) any use of the Software in combination with other products, equipment, software, or data not supported by Webroot; (iii) any use of any release of the Software other than the most current release made available to Licensee; or (iv) any modification of the Software by any person other than Webroot or its authorized agents or subcontractors. If an infringement action or claim against Webroot is based on any of the exceptions to Webroot's indemnity as set forth above, Licensee will defend such action or claim at its own expense and will pay all damages and costs finally awarded against Webroot in connection with such action or claim or agreed to in any monetary settlement thereof. Webroot will promptly notify Licensee in writing of such action or claim, give Licensee sole control of the defense thereof and any related settlement negotiations, cooperate with Licensee and, at Licensee's request and expense, assist in such defense. This Section 10 states Webroot's entire liability and Licensee's sole and exclusive remedy for infringement claims and actions.
11. LIMITATION OF LIABILITY. Except with respect to claims arising out of a breach of Sections 2, 3 and/or 8, in no event will either party be liable for any consequential, indirect, exemplary, special, or incidental damages, including any lost or damaged data and lost profits, arising from or relating to this Agreement even if the party has been advised of the possibility of such damages. Additionally, in no event will Webroot's total cumulative liability in connection with this Agreement and the Software, Documentation, and Support, whether in contract or tort or otherwise, exceed the amount of License Fees paid to Webroot hereunder.
12. TERM AND TERMINATION.
    
    1. Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for the Subscription Term as specified in the Service Order (the "Initial Term"). At the end of the Initial Term, this Agreement shall be renewed automatically for consecutive renewal terms of twelve (12) months (each such term, a "Renewal Term") (such Renewal Terms together with the Initial Term, the "Term"), unless terminated by either party by providing the other party written notice at least thirty (30) days prior to the end of the applicable Term or unless terminated pursuant to Section 12.2.
    2. Termination. Either party may terminate this Agreement if the other is in material breach of any obligation under this Agreement and does not cure such material breach within thirty (30) days after receiving written notice thereof, provided, however, that Webroot may terminate this Agreement, effective immediately upon written notice to Licensee, if: (a) Licensee breaches any provision in Section 3 and does not cure the breach within ten (10) days after receiving written notice thereof; (b) Licensee fails to pay any portion of the License or Support Fees when due and does not pay such overdue amount within ten (10) days after receiving written notice thereof; (c) Licensee ceases business operations, assigns its assets for the benefit of creditors, or files for bankruptcy; or (d) pursuant to Section 10, Webroot determines that the use of the Software may infringe or violate the Intellectual Property Rights of another party.
    3. Effects of Termination. Upon termination of this Agreement by Webroot under Section 12.1 or 12.2, any amounts owed to Webroot under this Agreement before such termination will immediately be due and payable, and Licensee's rights to the Support will immediately terminate. In addition, if this Agreement is terminated by Webroot under Section 12.2(a), (b), (c), or (d), Licensee must promptly discontinue all use of the Software, erase all copies of the Software from Licensee's computers, return or destroy all copies of the Software and Documentation on tangible media in Licensee's possession or control, and certify in writing to Webroot that Licensee has fully complied with these requirements. Upon termination of this Agreement for any other reason, any amounts owed to Webroot under this Agreement before such termination will immediately be due and payable.
    4. Survival. The following sections will survive termination of this Agreement for any reason: Sections 1 (Definitions), 3 (License Restrictions), 4 (Ownership), 7 (Payment), 8 (Confidentiality Rights and Obligations), 9.2 (Disclaimers), 11 (Limitation of Liability), 12.3 (Effects of Termination), 12.4 (Survival), and 14 (General).
13. ACKNOWLEDGEMENTS. The Software is configured to (i) automatically block, remove, and/or quarantine the installation of software that Licensee may not want on its computer system ("Potentially Unwanted Software") and (ii) enable Licensee to decide whether or not it wants Potentially Unwanted Software installed on its computer system. The choice is Licensee's. If Licensee does not want the ability to remove potentially unwanted software from its computer system, Licensee shall not accept this license and will not install the Software. If the Software identifies Potentially Unwanted Software, the Software will ask Licensee if its wants to retain or remove the program(s). Licensee understands that whether the Software removes or disables Potentially Unwanted Software is its choice and that it is solely responsible for selecting which Potentially Unwanted Software the Software removes or disables. Licensee agree that Webroot is not responsible for such removal or disabling or the consequences thereof. Removing or disabling the Potentially Unwanted Software may cause other software on Licensee's computer system ("Other Software") to stop working, and it may cause Licensee to breach a license to use Other Software on Licensee's computer system if the Other Software installed the Potentially Unwanted Software as a condition of Licensee's use of the Other Software. Licensee is hereby advised to review the license agreement(s) for Other Software before authorizing the removal of Potentially Unwanted Software. Licensee acknowledges that its use of the Software may remove or disable other programs on Licensee's computer system, including software that may or may not be Potentially Unwanted Software. While Webroot uses reasonable efforts to properly identify Potentially Unwanted Software and regularly update its list of such programs, Webroot cannot and does not guarantee that its list is complete or accurate. For more information regarding how to access and review Potentially Unwanted Software blocked or quarantined by the Software, and/or how to prevent such a program from being blocked or quarantined in the future, please contact Support following installation.
14. GENERAL.
    
    1. Export Laws. Licensee acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software. Licensee agrees that it will not export or re-export the Software in any form in violation of the export laws of the United States or any foreign jurisdiction. Licensee will defend, indemnify, and hold harmless Webroot from and against any violation of such laws or regulations by Licensee or any of its agents, officers, directors, or employees.
    2. Assignments. Licensee may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including its licenses with respect to the Software) to any third party without Webroot's prior written consent. Any attempted assignment or transfer in violation of the foregoing will be void. Without limiting Webroot's right to assign or transfer any of its rights or obligations hereunder, Webroot will have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, or otherwise.
    3. Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the Service Order, and will be effective upon the earlier to occur of receipt or three (3) business days after being deposited in the mail as required above. Either party may change its address by giving written notice of the new address to the other party.
    4. Governing Law and Venue. This Agreement will be governed by the laws of the State of Delaware, without regard to any of its conflict of laws provisions that would cause the laws of another jurisdiction to apply. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding relating to this Agreement must be brought in a federal or state court in Denver or Boulder County, Colorado (provided, however, that nothing in this Agreement will prevent Webroot from seeking injunctive relief to enforce the terms of this Agreement in any venue or jurisdiction, as determined in Webroot's sole convenience), and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its costs, expenses and reasonable attorneys' fees, in addition to any other relief it may receive.
    5. Remedies. Licensee acknowledges that the Software contains valuable trade secrets and proprietary information of Webroot, that any actual or threatened breach of Sections 2, 3 or 8 will constitute immediate, irreparable harm to Webroot for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach, and Licensee waives any requirement by Webroot for posting bond.
    6. Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of any other provision or of such provision on any other occasion.
    7. Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
    8. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms of this Agreement will govern all purchase orders or similar ordering documents submitted by Licensee to Webroot and preprinted or form terms in any purchase order or similar ordering document will have no legal effect on the parties.Facsimile signatures will be considered originals for the purposes of execution or modification of this Agreement. The Section headings in this Agreement are for convenience only and are not to be used in interpreting this Agreement.

SCHEDULE 1

DEFINITIONS

The following terms shall have the following meanings:

1. "Business Hours" means the hours between 7:00 a.m. and 6:00 p.m. (Mountain Time) during a Business Day.
2. "Business Day" means Monday through Friday, excluding holidays.
3. "Content Updates" means the changes to the database of programs, files, and content that the Software identifies as fitting within a defined category, as provided by Webroot from time to time.
4. "Confidential Information" means all trade secrets, business, technical and financial information, computer software, machine and operator instructions, business methods, procedures, know-how, and other information that relates to the business or technology of either party that is identified as being confidential at the time of disclosure.
5. "Documentation" means the online user manual, instructions, and specifications provided by Webroot to assist Licensee in the installation, operation, and use of the Software.
6. "Eligible Personnel" means up to two (2) employees or contractors of Licensee designated in writing to Webroot who may contact Webroot to obtain the Support described in Schedule 2.
7. "Incident" means any problem, question, or other request for assistance from Licensee pertaining to the Software that does not relate to: (a) any problem, question, or other request that occurs during the Software Warranty Period; (b) a Software Error; (c) Licensee's request for any enhancements to the Software; (d) an inaccuracy in the Documentation; (e) a false positive detection of malware; or (f) a report of malware not identified by the Software.
8. "Intellectual Property Rights" means all worldwide patents, patent applications, copyrights, trademarks, design rights, service marks, trade names, trade dress, trade secrets, know-how, moral rights, and any other intellectual property or proprietary rights.
9. "License Fees" means the Software license fees set forth in the Service Order.
10. "Software" means either Webroot® AntiSpyware Corporate Edition or Webroot® AntiSpyware Corporate Edition with AntiVirus (as specified in the Service Order) software program in executable code form, and any modified, updated, or enhanced versions of such program Webroot provides to Licensee under this Agreement.
11. "Software Error" means the material failure of the Software to perform in accordance with the then-current Documentation that is reproducible by Webroot.
12. "Software Warranty Period" means the thirty (30) day period after the Effective Date.
13. "Subscription Term" means the term for the purchased products and/or services as set forth in the Service Order.
14. "Support Fees" means the fees for the applicable level of Support selected by Licensee as set forth in the Service Order.
15. "Support" means the Software maintenance and support services set forth in Schedule 2 made available to Licensee depending upon the level of service and duration selected by the Licensee.
16. "Support Term" means the period for which Licensee has paid the applicable Support Fees.

SCHEDULE 2

SUPPORT

1. Levels of Support. Depending on the level of Support purchased, Webroot will provide Support for the Software as set out below to Eligible Personnel for the most current version of the Software and the most recent previous version of the Software.
   1. BASIC SUPPORT
      • Telephone Support during Business Hours on Business Days.
      • Access to Webroot technical support through telephone, email and online trouble ticketing system.
      • Five (5) Incidents per year.
      • Access to the Webroot online knowledge base.
      • One (1) named Licensee contact.
      • Custom malware removal available via e-mail only.
      • Unlimited access to online user group.
   2. SILVER SUPPORT – Includes Basic Support plus the following:
      • Telephone Support available 24 hours per day / 7 days per week.
      • Unlimited Incidents (phone, email and tickets) per year.
      • Two (2) named Licensee contacts.
      • Prioritized phone support through a dedicated phone queue.
      • Security alerts and periodic technical bulletin for upgrade notifications and known bugs.
   3. GOLD SUPPORT – Includes Silver Support plus the following:
      • Prioritized phone support handled by a dedicated Gold Support team.
      • Custom malware removal with phone-based service.
      • Three (3) named Licensee contacts.
      • One yearly on-site visit at a reduced cost.
   4. PLATINUM SUPPORT – Includes Gold Support plus the following:
      • Prioritized phone support handled by a dedicated Platinum Support team with the addition of a Technical Support Account Manager resource assigned to the account.
      • Five (5) named Licensee contacts.
      • One yearly on-site visit.
        
2. Software Updates and Upgrades. Webroot, at its sole discretion, may make modifications, updates, upgrades, or enhanced versions available to Licensee during the Support Term. Any such modifications, updates, upgrades, or enhanced versions provided hereunder will be deemed to constitute part of the Software and will be subject to the terms of the Agreement.
3. Content Updates. Licensee may obtain Content Updates during the Support Term. To be notified of and receive the Content Updates, Licensee must record its license for the Software with Webroot either through product registration or a direct purchase through www.webroot.com. Webroot will not be responsible for Licensee's failure to follow the requirements to obtain Content Updates.
4. Software Errors.
   1. Priority Levels. Upon receipt of a Software Error report from Eligible Personnel, including all information from Licensee that Webroot deems necessary to diagnose the Software Error, Webroot will acknowledge the report and assign a log number. If the Software Error cannot be reproduced, Webroot will indicate such and may recommend actions to Licensee to assist in the diagnosis or request additional information. As soon as practical after receiving all necessary information regarding the Software Error, Webroot will determine, in its sole discretion, the priority of the Software Error according to the priority levels listed below and will use commercially reasonable efforts to remedy the Software Error as set forth below. If Webroot determines in good faith that any such Software Error is the result of an error or misstatement in the Documentation, Webroot may correct such non-conformity solely by amending the Documentation, as necessary. Licensee, through its Eligible Personnel, will use commercially reasonable efforts to assist Webroot in the implementation in Licensee's computer environment of any solutions for the Software Errors provided by Webroot pursuant to this Section.
      
      Priority 1
      Occurs if the Software materially fails to conform to the functional specifications set forth in the Documentation and Licensee is unable to proceed without a fix to the problem or a work-around solution provided by Webroot (e.g., Software downtime problems). Webroot will assign a Priority 1 Software Error to Tier 3 Support personnel, and such personnel will respond directly to Licensee indicating the plan to seek resolution and provide regular status updates to the Licensee until the Software Error is resolved.
      
      Priority 2
      Occurs if the Software contains major functional failures to conform with the specifications set forth in the Documentation, which Licensee is able to work around but the Software can only be used to a limited degree (e.g., partial or limited functionality). Webroot will assign a Priority 2 Software Error to Tier 2 Support personnel, and such personnel will respond directly to Licensee indicating the plan to seek resolution and provide regular status updates to the Licensee until the Software Error is resolved.
      
      Priority 3
      Occurs if the Software or Documentation contains incorrect logic, incorrect descriptions, or functional problems which Licensee is able to work around, or where a temporary correction has been implemented (e.g., fully functional but needs improvement) or where the Software conflicts with other software applications and no workaround is available. Depending on the severity of the Priority 3 Software Error, as determined by Webroot in its sole discretion, Webroot will determine the plan to seek resolution for the Software Error and will respond directly to Licensee indicating whether the Software Error will be resolved, at Webroot's sole discretion, in the next modification, update, upgrade, or enhanced version of the Software
      
      Priority 4
      Occurs if Licensee has a suggestion for an enhancement to the Software. Webroot will take Licensee's request for an enhancement under consideration and will determine at Webroot's sole discretion whether to include the enhancement or some variation thereof in the next modification, update, upgrade, or enhanced version of the Software, if at all.
      
   2. Procedural Workarounds. If Webroot fails or is unable to correct any Software Error, Webroot will use commercially reasonable efforts to develop procedures or routines to avoid or substantially diminish the practical adverse effects of the relevant Software Error. Any failure or inability by Webroot to develop any such procedure or routine, or Webroot's failure or inability to do so in a timely fashion, will in no event be deemed a breach of Webroot's obligations hereunder.