Terms & Conditions

Exhibit B - STANDARD TERMS AND CONDITIONS

 

1. Definitions.

As used herein, the following terms will have the following meanings:

1.1 “Accessibility” will have the meaning given such term in Appendix 1.

1.2 “Commencement Date” means the date set out in the Agreement and which will be the date the Services will commence.

1.3 “Confidential Information” means any and all information in whatever form, whether disclosed orally or in writing and whether eye readable or machine readable, (a) that is made available by one Party (in such capacity the “Disclosing Party”) to the other Party (in such capacity the “Receiving Party”) or which is gained by the visit by the Receiving Party to any premises of the Disclosing Party,  whether  before or after the Commencement Date; and (b) which by its nature is confidential or ought to be recognized as confidential or proprietary, even if not marked with “Confidential” or “Proprietary” or words of similar import. Confidential Information includes, without limitation, IP, specifications and technical literature, financial or commercial information, this Agreement (including the Terms and Conditions), the Deliverables, the Proprietary Software, the Improvements, and the Documentation. Confidential Information excludes information which is (a) known to the Receiving Party prior to disclosure without an obligation of confidentiality, (b) rightfully obtained by the Receiving Party without restriction from a third party, (c) already within the public domain, or (d) developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.

1.4 “Deliverables” means the reports, data, materials, physical media, information, goods and other work product of any services provided under the Agreement.

1.5 “Documentation” means documentation, help, files, user manuals, handbooks, or other written or electronic material provided by or made generally available by Decipher to Client in relation to the Proprietary Software, as revised from time to time.

1.6 "Hosting Infrastructure" means the hosting and network infrastructure provided by Decipher or the Hosting Partner in connection with the provision of the Hosting Services.

1.7 "Hosting Partner" means such third party server hosting and network infrastructure provider as Decipher may designate from time to time.

1.8 “Hosting Services” means hosting services to be provided to Client by Decipher pursuant to the Agreement, if applicable.

1.9 “Improvements” means all improvements or other modifications to the Proprietary Software, the Deliverables, the IP, or the Documentation.

1.10 “IP” means all types of intellectual property, whether or not capable of being registered, including copyrights, patents, trademarks, trade secrets, database rights, know-how, methodologies, algorithms, formats, software (including the Proprietary Software), tools, data structures, and design protocols.

1.11 “IP Rights” means all ownership and proprietary rights in IP.

1.12 "License" means the license granted to Client in the Proprietary Software pursuant to Section 2.1.

1.13 "License Fees" means the amounts payable by Client to Decipher plus applicable Taxes in consideration for the License, such amounts being set out in the Agreement.

1.14 "Party" means Client or Decipher, as the context requires, and "Parties" means Client and Decipher.

1.15 “Proprietary Software” means Decipher’s survey programming and reporting engine software or any other proprietary software of Decipher described in the Agreement including any Improvements provided to Client and all files or materials accompanying the Proprietary Software, including the Documentation.

1.16 "Research Services" means survey scripting, e-mails sends and other research services to be provided to Client by Decipher as referenced in the Agreement, if applicable.

1.17 "Research Services Term" means the term for the Research Services, as set out in the Agreement, commencing upon the Commencement Date unless otherwise specified in the Agreement.

1.18 "Research Services Fees" means all amounts payable by Client to Decipher plus applicable Taxes on account of Research Services in accordance with the terms of the Agreement.

1.19 "Services" means any Hosting Services, Support Services and/or Research Services provided by Decipher to Client under the Agreement.

1.20 "Service Levels" means those service levels in Appendix 1.

1.21 "Specifications" means the functional specifications applicable to the Proprietary Software, as set out in the Documentation.

1.22 "Support Services" means maintenance, updates, and technical support services to be provided to Client by Decipher pursuant to such services being referenced to in the Agreement, if applicable.

1.23 "Support Services Term" means the term for the Support Services, as set out in the Agreement, commencing upon the Commencement Date unless otherwise specified in the Agreement.

1.24 "Support Services Fees" means all amounts payable by Client to Decipher plus applicable Taxes on account of Support Services in accordance with the terms of the Agreement.

1.25 “Taxes” will mean all sales, excise or other taxes imposed on the sale, provision or use of the Services or the Deliverables, other than Decipher’s income taxes and property taxes on the equipment used by Decipher to provide the Services.

1.26 "Term" means the Support Services Term, the Research Services Term or the term for which any license to use Proprietary Software is granted hereunder, as applicable, or any extensions thereto.

1.27 “Technical Requirements” means the technical requirements in Appendix 2.

1.28 “Technical Standards” means the technical standards in Appendix 3.

2. Software License

2.1 Decipher grants to Client, subject to the terms and conditions of the Agreement, the restricted, time-limited, non-exclusive, non-transferable and non-assignable right to use the Proprietary Software, in all cases for its internal business purposes. Client is not granted any license or right to use any other IP that Decipher may own, have licensing rights to, or otherwise control.

2.2 Client will be entitled to install and use the Proprietary Software for no more than the number of personal computers, mobile computing devices and/or users of the Hosting Service for which Client has purchased the License, as set out in the Agreement. Further, where applicable pursuant to the Agreement, Client will not use the Proprietary Software for the purpose of storing or transferring more than the maximum amount of data permitted pursuant to the Agreement.  In absence of any specification of allocation for storage and bandwidth in the Agreement, the following will apply:  15 gigabyte total storage, and 45 gigabyte per month of total data transfer.

2.3 It is an express term of the Agreement that Client will acquire no title or ownership to the Proprietary Software. The Improvements, the Proprietary Software, Deliverables, and Documentation are and will remain the IP of Decipher and Decipher will own and retain all IP Rights with respect thereto. For the avoidance of doubt, Decipher will have all IP Rights with respect to any Improvements or IP created from the provision of any Services under the Agreement.

2.4 Client agrees that it will not seek to (i) challenge, through the courts, administrative governmental bodies, private organizations or in any other manner, the rights of Decipher in Decipher’s IP, or (ii) thwart, hinder or subvert the rights of Decipher in Decipher’s IP.

2.5 Decipher reserves all rights not expressly granted to Client under the Agreement. Without limiting the generality of the foregoing, Client will not do or permit any of the following to be done in relation to the whole or any part of the Proprietary Software:  (a) copy or reproduce the Proprietary Software; (b) modify, adapt, translate or alter the Proprietary Software in any way; (c) de-compile, reverse engineer or disassemble the Proprietary Software or otherwise reduce the Proprietary Software to any human perceivable form; (d) take any steps to produce a source language statement of the Proprietary Software; or (e) use the Proprietary Software to develop any derivative works of functionally compatible or competitive computer programs to the Proprietary Software or create derivative works based on the Proprietary Software.

2.6 If any unauthorized use is made of the Proprietary Software and such use is attributable to the act or fault of Client, then, without prejudice to Decipher’s other rights and remedies, Decipher will have the right to require that Client immediately pay to Decipher an amount equal to the License Fees Decipher would have collected had the License originally included such unauthorized use. Client will immediately notify Decipher if it suspects or becomes aware of any such unauthorized use, and will cooperate with Decipher in investigating and resolving the situation.

2.7 Client agrees that it will be responsible at its own expense for complying with all applicable export and import laws and regulations in using the Proprietary Software, and neither the Proprietary Software nor any direct product thereof is being or will be shipped, transferred or re-exported, directly or indirectly, into any country or to any foreign entity or foreign person prohibited under any statute or regulation of the United States or by the laws of the jurisdiction in which the Proprietary Software was obtained.  By using the Proprietary Software, Client is agreeing to the foregoing and represents and warrants that Client will not download or otherwise export to (or to a national or resident of), and Client is not located in, any country in which it would not be permitted to export the Proprietary Software from any jurisdiction in which the Proprietary Software or related materials was situated prior to Client obtaining it.

2.8 Decipher will defend, indemnify (including settling at its own expense) and hold Client harmless from and against any third-party claim that the Proprietary Software or the utilization of the Deliverables infringes any third party IP Rights enforceable in the United States (a “Claim”). Decipher’s indemnity obligation is subject to the following conditions: (a) the Claim must not result from or be attributable to the breach of the Agreement by Client; (b) Client must give Decipher prompt written notice of a Claim; (c) Decipher must have exclusive control of the defense of the Claim; and (d) Client must cooperate in the defense of the Claim and provide all information in their possession or control that may be requested by Decipher, at Decipher’s expense.  Should Decipher’s ability to provide Client with the License (including without limitation Client’s use of Deliverables) be enjoined or otherwise restricted due to a Claim, Decipher will, at its option, either procure the right to continue providing the License, replace or modify the License to make it non-infringing, or if neither of the foregoing is reasonably feasible in Decipher’s opinion, Decipher may terminate this Agreement immediately without any further liability to Client other than to refund to Client the unearned portion of any License Fees paid in advance.

3.0 Support Services 

3.1 The provisions of this Article 3.0 apply only to the extent that Client has purchased Support Services pursuant to the Agreement or the Agreement includes Support Services as part of the License.

3.2 If the Agreement includes Support Services, Decipher will provide the Support Services to Client in accordance with the terms of the Agreement and for the Support Services Term.

3.3 If Client has purchased Support Services from Decipher or the Agreement includes Support Services as part of the License:

        (a) Decipher will provide Support Services, so that the Software will function substantially in accordance with the Specifications;

        (b) Decipher will provide the following Support Services by answering Client's requests for support submitted by the support contact designated by Client (the "Support Contact"):  (i) explanation of installation procedures, functions and features of the Proprietary Software; (ii) clarification of Documentation; and (iii) error analysis and correction; during the hours of 9:00 a.m. and 5:00 p.m. Monday through Friday in the time zone of Decipher's office, provided that Decipher will not provide any such services on recognized holidays or as otherwise specified in the Business Terms.

        (c) Client shall designate one primary Support Contact who will act as the conduit for requests from Client to Decipher relating to Support Services matters.

        (d) Before assuming responsibilities, the Support Contact must attend training in the use of the Services and the Proprietary Software as prescribed by Decipher, or must possess skills at least at the same level as those having undertaken such training.

        (e) Client shall ensure that parties other than the Support Contact do not send requests answerable by Support Contact for support directly to Decipher. Decipher may, in its discretion, cease offering support directly to licensed users who are not Support Contacts.

3.4 If Client has purchased Support Services or the Agreement includes Support Services pursuant to a License, and Client after receiving Support Services in accordance with Section 3.3(a), suspects that there is a failure or deficiency in the Proprietary Software or the Proprietary Software is not performing substantially in accordance with the Specifications or Documentation, Client will notify Decipher in writing. The notice will include a description of the suspected defect or non-conformity and the circumstances of its occurrence.  Upon receipt of such notice, Decipher will use commercially reasonable efforts to confirm the existence of the defect or non-conformity, correct it, and provide an explanation of the correction applied.  If there is no such defect or non-conformity, Decipher is entitled to charge Client for the technical support services provided to Client at Decipher's standard rates from time to time.

3.5 The Support Services do not include any customizations, adaptations, or modifications to the Proprietary Software to meet Client's requirements. Should Client require any such customization services, the Client will engage Decipher as Decipher's standard rates from time to time

3.6 Client acknowledges that the Support Services are limited to the services and remedies expressly set out in these Terms and Conditions and exclude any services or additions, modifications or adjustments to the Proprietary Software to correct any defect or non-conformity relating to:

        (a) the use of the Proprietary Software in combination with apparatus, systems, products or services where such combination was not provided, proposed or recommended by Decipher or contemplated in the Specifications or Documentation, except to the extent such use reasonably constitutes an intended or expected use of such Proprietary Software and such use was disclosed in writing by the Client to Decipher in advance of such use; or

        (b) the alteration or modification of the Proprietary Software after delivery by Decipher, if such alteration or modification is made by a person other than Decipher or otherwise without Decipher's authorization, direction, request or specification; or

        (c) Client's failure to incorporate any Improvements that Decipher has provided to Client; or

        (d) Client's operation of the Proprietary Software in an erroneous way or outside what described in the Documentation or non-compliance with any of the terms of this Agreement;

        (e) the access to or operation of the Proprietary Software by someone who is not a licensed user;

        (f) the failure of Client's systems to meet the applicable Technical Requirements; or

        (h) issues due to general internet latency and connection loss, or issues related to inadequate bandwidth, insufficient network, etc, and not related to the Hosting Services.

3.7 Client's Support Services under the Agreement will expire upon expiration of the Support Services Term or earlier termination of the Support Services or the Agreement in accordance with these Terms and Conditions, as the case may be.

4.0 Research Services 

4.1 The provisions of this Article 4.0 apply only to the extent that Client has purchased Research Services pursuant to the Agreement.

4.2 If the Agreement includes Research Services, Decipher will provide the Research Services to Client in accordance with the terms of the Agreement and for the Research Services Term.

4.3 Client acknowledges that the Research Services are limited to the services and remedies expressly set out in the Agreement and these Terms and Conditions and exclude any other services.

4.4 Client's Research Services under the Agreement will expire upon expiration of the Research Services Term or earlier termination of the Research Services or the Agreement in accordance with the Terms and Conditions, as the case may be.

5.0 Hosting Services 

5.1 The provisions of this Article 5.0 apply to any License of the Proprietary Software or the purchase of Research Services pursuant to the Agreement.

5.2 If applicable, Decipher will provide the Hosting Services to Client for the Term as specified in the Agreement. Decipher shall use commercially reasonable efforts to ensure the Hosting Partner provides reasonable access, in accordance with these Terms and Conditions, for Client's employees for Client's internal business purposes. Unless otherwise provided in the Agreement, Client will be provided administrative project management accounts (login and password) for access to the Hosting Infrastructure upon request.

5.3 During the Term, Decipher will perform the Hosting Services in accordance with the Service Levels and the Technical Standards.

5.4 Client agrees that in its use of the Hosting Services, it will:  (a) use its own hardware and software to access the Hosting Infrastructure; (b) be responsible for performing its own backups of any data exported from the Hosting Infrastructure; and be responsible for, and will pay to Decipher, a reasonable charge for the completion of data recovery requests to restore any Client data lost due to the failure of Client's servers and/or computers.

5.5 Notwithstanding any other provision of this Agreement, Decipher shall have the right to review Client's computing environment and the usage of the Software on a monthly basis in order to confirm Client's compliance with this Agreement.

5.6 The Parties acknowledge that at all times Client will remain the owner of its data. Decipher shall not at any time use Client's data or disclose Client's data to any third parties, except that Decipher may store, back-up, view and archive Client's data with, and disclose Client's data to, the Hosting Partner for administrative or support purposes in carrying out the Hosting Services, and the Client hereby consents to such use and disclosure. Client shall ensure that, to the extent required by applicable law, it has obtained from any person whose personal information (“Personal Data”) may be contained in Client's data consent to use and disclose such Personal Data as contemplated hereunder in connection with the use of the Proprietary Software, even if transmitted, posted, received or created by someone else, and Client agrees to defend, indemnify and hold Decipher and its respective directors, officers, employees, agents and contractors, harmless from any loss, damage or liability which may result therefrom or from breach by Client of any of the terms and conditions under the Agreement, or any requirement applicable to Client under applicable law.

5.7 The Hosting Services under the Agreement will expire upon expiration of the Term or earlier termination of the Agreement in accordance with these Terms and Conditions, as the case may be.

5.8 Six (6) months following the expiration of the Term, Decipher may permanently destroy any of Client's data remaining on the Hosting Infrastructure, provided however that if Client has requested in writing to Decipher before the last day of the Term, Decipher shall provide to Client a copy of any remaining data in raw format, upon payment by Client of Decipher's standard charges for such assistance.

6.0 Price and Payments 

 6.1 Client will pay Decipher the applicable License Fees, Support Services Fees and/or Research Services Fees (collectively, the "Fees") for the applicable Services in the amount of and as set forth in the payment schedule set out in the Agreement.

6.2 In addition to the Fees, Decipher will invoice Client for its reasonable and necessary travel and other out-of-pocket expenses incurred in providing the Services. An estimate of such expenses will be provided to Client for prior approval.

6.3 No additional terms and conditions in any purchase order or similar document provided by Client will become part of the Agreement, and all such terms are hereby rejected by Decipher.

6.4 Unless otherwise specifically set forth in the Agreement, all invoices for Fees and expenses will be due and payable, without any setoff, deduction or withholding whatsoever, no later than thirty (30) calendar days after the date of the invoice (the “Due Date”). If payment is not made in full by the Due Date, Decipher will, at its option and without limiting any other rights it might have under the Agreement or under the law, be entitled to take one or more of the following measures until payment in full is received: (a) immediately suspend provision of the Services without the suspension being considered as a termination of the Agreement; and (b) charge interest on overdue amounts at a default rate equal to ten percent (10%) per annum, but not exceeding the maximum interest rate permitted by law.

6.5 All Fees are exclusive of Taxes, and Decipher will endeavor to include any Taxes as a separate line item on its invoices. Client will be responsible for the payment of all Taxes, whether or not reflected in Decipher’s invoices.

7.0 Warranties and Disclaimers 

7.1 Decipher warrants that, during the Term, the Services will be performed in material compliance with the Documentation and the Service Levels and in accordance with good industry practice. Client’s sole and exclusive remedy for breach of any of the foregoing warranties will be for Decipher to use reasonable efforts to repair such nonconformities within a reasonable time after Client provides notice to Decipher of such breach and, if the breach relates to a software error, after Decipher receives sufficient information to replicate the error. If this exclusive remedy is unenforceable for any reason, then the limitation of liability provisions set forth herein will apply to any resulting liability.

7.2 Decipher does not warrant that the Services or the Deliverables will meet Client’s or its Affiliates’ requirements or that the Services provided under this Agreement will be error free or operate without interruption. Any liability that Decipher may have under this Agreement will be subject to the limitation of liability provisions set forth herein.

7.3 EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE AGREEMENT, ALL CONDITIONS, WARRANTIES, TERMS AND UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, ARE HEREBY EXCLUDED TO THE EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  IN PARTICULAR, ANY AND ALL WARRANTIES ARISING IN LAW OR FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USE OF TRADE ARE EXPRESSLY EXCLUDED. THIS IS A LIMITED WARRANTY AND IS THE ONLY WARRANTY MADE BY DECIPHER. CLIENT HEREBY DISCLAIMS ANY RELIANCE ON ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY SET FORTH IN THIS AGREEMENT.

8.0 Term and Termination of Agreement

8.1 Upon the termination or expiration of this Agreement, for whatever reason, Decipher will cease to provide any of the Services.

8.2 The Agreement will automatically terminate without further formality on the final day of the Term.

8.3 Either Party may terminate the Agreement upon thirty (30) calendar days written notice to the other Party if the other Party is in material breach of this Agreement and fails to cure such breach to the non-breaching Party’s satisfaction within the notice period.

8.4 Decipher reserves the right to suspend the Services immediately, in whole or in part, followed by notice to Client, if Decipher deems such action reasonably necessary to protect its IP.

8.5 Either Party may terminate the Agreement immediately upon notice to the other Party if the other Party: (a) becomes the subject of any order or other process calling for the appointment of a receiver, administrator, trustee, nominee or other similar official; (b) is wound up or dissolved, becomes or is declared insolvent; (c) is involved as a debtor, voluntarily or involuntarily, in any proceeding for relief under the Federal Bankruptcy Code (or any statutory re-enactment or modification thereof); or (d) ceases to or threatens to cease to carry on all or a substantial part of its business.

8.6 Termination or expiration of this Agreement will not prejudice any rights of either Party which have arisen on or before the date of termination or expiration. If this Agreement is terminated for any reason other than Client’s breach, Decipher will refund to Client any prepaid Fees on a prorated basis.

9.0 Limitation of Liability

9.1 The liability of Decipher to Client (or any other third party claiming through Client via indemnity or otherwise) arising from the Services, use of the Deliverables or Decipher’s breach of this Agreement, however caused and whether the claim arises in contract, tort, breach of warranty, strict liability or other theory of liability, will, to the maximum extent permitted by law, be limited to direct damages actually incurred and will not exceed the Fees collected by Decipher for the specific Services giving rise to the liability. In no event will Decipher have any liability for claims to the extent attributable to the acts or omissions of Client or any third party claiming through Client via indemnity or otherwise.

9.2 In no event will Decipher be liable to Client (or any other third party claiming through Client via indemnity or otherwise) for any indirect, incidental, special or consequential damages, including damages for loss of profits, revenue, data or data use, even if Decipher is or was advised of the possibility of such damages.

9.3 Section 2.8 sets forth the exclusive remedy available to Client against Decipher for a Claim.

9.4 The limitations of liability set forth in this Article 9 are of the essence of the Agreement and are the basis on which the Fees were determined.

10.0 Confidential Information

10.1 A Receiving Party will neither disclose the Disclosing Party’s Confidential Information to any third party nor use such Confidential Information in any manner not permitted by the Agreement. A Receiving Party will disclose the Disclosing Party’s Confidential Information to its employees or agents only on a “need to know” basis. A Receiving Party will be responsible for any breach of these confidentiality obligations by its employees or agents.

10.2 Notwithstanding the foregoing, a Receiving Party will be entitled to disclose a Disclosing Party’s Confidential Information as a result of governmental or legal requirements, provided that reasonable notice is first given to the Disclosing Party and all reasonable non-financial cooperation is given in order to allow the Disclosing Party to seek a protective order.

10.3 Notwithstanding the foregoing, each Party may reveal to third parties that a relationship exists between Client and Decipher, without revealing the scope, content or any other Confidential Information related to the engagement.

11.0 Data Protection

11.1 Client acknowledges and agrees that Decipher stores the information gathered by Client, including any Personal Data, on servers situated on the premises of the Hosting Partner. Decipher reserves the right to, in its sole discretion, to change the Hosting Partner and Hosting Infrastructure upon reasonable notice to Client.

11.2 In respect of all Personal Data that Decipher processes on behalf of Client, Decipher:

        (a) maintains (and shall ensure that the Hosting Partner undertakes) that it will act only on the instructions of Client (such instructions provided via the use of the Services or otherwise) in relation to the processing of such Personal Data in connection with this Agreement, provided that Decipher will not be in breach of this Agreement or otherwise liable to Client to the extent that compliance with any such instructions would otherwise constitute a breach by Decipher of this Agreement and/or of applicable law or regulation;

        (b) subject to the terms of the Agreement setting forth Decipher's right of time-limited retention of back-ups of data upon termination of the Agreement, and except as reasonably required for the performance of its obligations under the Agreement or as required by law, agrees it will not (and shall ensure that the Hosting Partner will not) retain any copy, abstract, or summaries any of such Personal Data;

        (c) will require any agents and sub-contractors to which Decipher discloses any of such Personal Data for the purposes of carrying out Decipher's obligations under this Agreement to enter into contractual obligations as to the processing of such Personal Data substantially equivalent to those set out in this Section 11.2; and

        (d) will not use or disclose any of such Personal Data which comes to its knowledge or possession under or in respect of this Agreement, save as may be necessary for the provision of the Service which shall include disclosure to the Hosting Partner, subject to confidentiality terms substantially equivalent to those set out in this Agreement; or which Decipher is compelled to disclose by order of a court or other body having similar authority or pursuant to governmental or other regulations.

12.0 Notices

Notices under this Agreement must be in writing and may be served either personally (hand-delivery) or by registered or certified mail, return receipt requested, to the address of the Parties stated in the Agreement, or to any other addresses as may have been properly notified by one Party to the other. Any notice served personally will be deemed to have been received on the date delivered any notice served by registered or certified mail shall be deemed to have been received two (2) business days after its mailing. Notwithstanding the foregoing, the Party serving notice also agrees to contact the other Party by telephone or e-mail if the message is time critical.

13.0 Non-Solicitation

Neither Party will solicit for employment or hire employees of the other Party during the Term of the Agreement. This restriction will not apply where (as shown by written records or other reasonable evidence) the person is employed as a result of an open market employment campaign without direct solicitation of the employee or if the employee is referred on an unsolicited basis by an employment agency.

14.0 Force Majeure

Decipher will not be held liable or responsible to Client, nor be deemed to have defaulted under or breached this Agreement, for failure or delay in fulfilling or performing any of its obligations under this Agreement to the extent, and for so long as, such failure or delay is caused by or results from causes beyond the reasonable control of Decipher (a “Force Majeure Event”) including, but not limited to, any act of God, fire, natural disaster, accident, terrorism, war, acts of war (whether war be declared or not), insurrections, riots, civil commotion, strikes, lockouts or other labor disturbances or any acts, omissions or delays in activity by any governmental authority. If Decipher is prevented or delayed in performing because of a Force Majeure Event it will promptly notify Client of the circumstances giving rise to the Force Majeure Event and, if possible, provide a projected duration of the Force Majeure Event. If a Force Majeure Event continues for longer than three consecutive months, either Party will thereafter have the option of terminating this Agreement immediately upon written notice to the other Party without any resulting liability for early termination.

15.0 General Provisions

15.1 The Terms and Conditions are incorporated by reference into each Agreement and together the Agreement constitutes the entire understanding between the Parties concerning its subject matter. No provision, right or obligation of or under an Agreement may be modified, assigned, delegated or waived, whether by operation of law or otherwise, unless done pursuant to a writing signed by an authorized representative of each Party.

15.2 Unless otherwise agreed, this Agreement supersedes any prior Agreement(s) with respect to the same Services but will not be deemed a waiver of rights with respect to, or act to extinguish, any pending obligations arising from such prior Agreement(s).

15.3 Nothing in this Agreement will create any association, partnership, joint venture, employer-employee or agent-principal relationship between the Parties.

15.4 The provisions of this Agreement which expressly or by implication are intended to survive its termination or expiration will survive and continue to bind both Parties.

15.5 If any provision of this Agreement is held to be invalid, the remaining provisions will remain in full force and effect.

15.6 An action, suit, or proceeding shall not be had or maintained under this Agreement unless the action, suit, or proceeding is commenced within one year from the date of termination or expiration of this Agreement. Failure to bring a claim on a timely basis will be deemed a waiver of such claim. This limitation will not apply to claims for equitable or injunctive relief.

15.7 This Agreement will be governed by and construed exclusively in accordance with the laws of the State of California excluding its conflicts of law provisions. Any dispute arising under the Agreement which is not otherwise resolved between the Parties will be submitted for resolution exclusively before any federal or state court situated in Fresno County, California, and both Parties consent and submit to the exclusive jurisdictions and venue of such courts. Notwithstanding the foregoing, either Party may seek injunctive relief to protect its interests before any court of competent jurisdiction.

Appendix 1

Service Levels

1. The Hosting Infrastructure will be available at least ninety-nine point nine percent (99.9%) (“Accessibility”) of the time for the purpose of authorized users creating, ordering and downloading reports, between 8:00 a.m. and 8:00 p.m. Pacific Standard Time (“PST”) Monday to Friday inclusive (but excluding Federal holidays) calculated for any given month during the Term.

2. The performance of the Services and related hardware components and network connectivity from Decipher’s principal system locations will be included in the determination of Accessibility. The following will be excluded from any outage time when calculating Accessibility:

        (a) scheduled maintenance and required repairs in which case three (3) calendar days’ prior notice will be given by Decipher to Client;

        (b) any loss or interruption of service due to third party service providers;

        (c) any loss or interruption of service due to causes otherwise beyond the control of Decipher or which could not reasonably have been foreseen by Decipher;

        (d) the failure of any components beyond the premise of Decipher demarcation; and

        (e) the failure of any components which cannot be corrected due to inaccessibility.

Decipher will not be responsible for Hosting Infrastructure unavailability due to the following and any resulting outages will be excluded when calculating Accessibility:

        (x) the failure of public network or communications components;

        (y) errors in the HTML coding in, or any other aspect of, the electronic files provided by Client; or

        (z) unauthorized use or misuse by authorized users.

3. If Decipher fails to provide the required level of Accessibility, Decipher’s sole liability, and Client’s sole remedy, shall be a proportionate refund in prepaid Fees. Client waives the right to claim any such reduction unless a written claim is given to Decipher within ten (10) days after the end of any calendar month in which it is claimed that required Accessibility was not achieved.

4. Decipher will provide a telephone help line between the hours of 9:00 a.m. and 5:00 p.m. PST Monday to Friday, in order to answer Client’s reasonable queries in relation to software errors or system problems but this does not extend to Training. Updates to Software comprising the Hosting Infrastructure will, wherever reasonably possible, take place outside these hours.

From time-to-time, the delivery of weekly data updates may be delayed to Decipher, and consequently delayed to Client via the Hosting Infrastructure. On such occasions Decipher will inform Client as soon as is practicable. For the avoidance of doubt Decipher accepts no responsibility for any losses caused by the delayed delivery of data updates.

Appendix 2

Client Technical Requirements Schedule 

Requirements to use Decipher’s applications:

The below list of supported browsers is a general rule of thumb in regards to our level of browser support for each area within our system. There are two tiers of support for the below browsers.

Tier I Browsers:  For these browsers we are actively testing and verifying that our surveys and/or software view properly on these browsers prior to upgrades and new releases.

Tier II Browsers: We do not include these browsers in our testing phase, however, we do support these browsers, and will update our system should bugs arise.

Requirements:

General Survey Support Tier I Firefox 3.6+ & Internet Explorer: 8+ (Except Builder) Tier II Firefox 2+, Safari 3+, Opera 9+, & Chrome 2+	Mobile Device Support Tier I iOS4+ Android 2.2+ Tier II Windows Phone 7+ Blackberry 6+
Decipher Portal & Reporting Tier I Firefox 3.6+ & Internet Explorer: 8+ (Except Builder) Tier II Firefox 2+, Safari 3+, Opera 9+, & Chrome 2+

• PC
• Internet access (recommended a dedicated minimum internet bandwidth of 2Mb/s)
• Screen resolution 1024x768 minimum with browser maximized; recommend 1152x864 or more
• The PC must meet the minimum spec required to support the specified browser and PC software requirements
  • User
  • Valid email address