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All references to Qualtrics, LLC. (“Qualtrics”) in these Terms and Conditions should be read as “Contractor(immixTechnology, Inc.), acting by and through its supplier, Qualtrics.”Qualtrics Master License AgreementThis Qualtrics Master License Agreement (“Agreement”), is between Qualtrics, LLC (“Qualtrics”); and OrderingActivity (“Licensee”). Qualtrics has developed a set of computer programs that facilitates and automates the process ofconducting surveys (the “Software”). Access to the Software is provided by Qualtrics as a service to Licensee via anASP (Applications Service Provider) model, in which the Software is hosted on servers of Qualtrics or of a third partyengaged by Qualtrics, where the third party is in the business of hosting Internet services and/or applications.1.0A.Qualtrics maintains the Software, hardware and systems to deliver the Qualtrics Service to subscribingLicensees via the Internet. The specific Software and services provided to Licensee as part of the “QualtricsService” are defined in Exhibit 1 hereunder.B.Licensee desires to utilize the Qualtrics Service, and Qualtrics desires to provide the Qualtrics Service toLicensee, pursuant to the terms and conditions of this Agreement.BackgroundQualtrics will provide the Qualtrics Service to Licensee as an end user customer. Qualtrics will use, operate, and/ormake available applicable software, hardware, network, systems, platforms, and/or other technologies and expertisereasonably required to provide the Qualtrics Service to Licensee. The Qualtrics Service shall be hosted onQualtrics’ servers. Qualtrics may, at its election, outsource the hosting to a trusted third party in the business ofhosting Internet services and/or applications.2.0License of Qualtrics ServiceQualtrics grants Licensee a non-exclusive, non-transferable worldwide license and lease, during the term of thisAgreement, to use the Qualtrics Service for Licensee’s own internal business purposes.2.1Access: During the term of this Agreement, provided that Licensee has paid all fees due and owed toQualtrics and is in compliance with the terms of this Agreement, Licensee will be able to access theQualtrics Service by going to the web site provided by Qualtrics upon receiving a valid order. TheQualtrics Service will prompt Licensee for its login and password information and, if correct, will provideLicensee with access to the Qualtrics Service.2.2Unauthorized Duplication or Use: Licensee shall use commercially reasonable efforts to prevent itsemployees and other third parties from making unauthorized copies of any content in the QualtricsSoftware or using the Qualtrics Service in violation of this Agreement. If Licensee discovers any suchunauthorized duplication or use, it will promptly notify Qualtrics and take commercially reasonableactions to resolve the problem as soon as reasonably possible.immixTechnology, Inc.Page 1reformatted 09.17.13
2.33.0Restrictions: Licensee is not permitted to sublicense the Qualtrics Software to third parties withoutwritten permission of Qualtrics except to affiliates and third party vendors solely for providing servicesfor Licensee and not for their own use.Support and MaintenanceIn consideration of the fees paid by Licensee, as part of the Qualtrics Services, Qualtrics will provide thefollowing support and maintenance services:3.1Technical Support: Qualtrics shall provide Licensee with telephone-based and web site-based technicalsupport services to assist Licensee in utilizing the Qualtrics Service, including the Software. Licenseemay telephone or e-mail Qualtrics’ offices for support during Qualtrics’ regular business hours, 6:00 p.m.Sunday to 6:00 p.m. Friday U.S. Mountain Time (0100 Monday to 0100 Saturday GMT), except U.S.holidays. Qualtrics will respond to telephone calls or e-mails based on the following criteria: (a) the orderthat such calls or e-mails are received; and (b) the relative importance of such calls or e-mails asreasonably determined by Qualtrics. Qualtrics shall make reasonable, good faith efforts to respond totechnical support requests and to correct errors within a reasonable time. Licensee agrees to cooperatewith Qualtrics in providing such documentation and information as Qualtrics may reasonably request, sothat Qualtrics can verify and reproduce the reported error. Additionally, Licensee may log on to thesupport web site to register e-mail requests.3.2Modifications and Enhancements: Qualtrics may also make modifications to the Qualtrics Service toimprove and enhance the Qualtrics Service, as it deems appropriate in its sole discretion, by addingadditional service options, improving the user interface and otherwise responding to its licensees’feedback and requests. Qualtrics will make all such improvements and enhancements (including, but notlimited to, error corrections, bug fixes and performance or functionality improvements) available toLicensee under the terms of this Agreement at no additional charge. Licensee may also utilize Qualtrics’support web site to make enhancement requests and other special ct to the licenses and rights granted herein, the parties acknowledge that:6.1As between the parties, Qualtrics owns all right, title and interest in and to the Qualtrics Service, allrelated software and technology, and all Qualtrics content provided in connection with the QualtricsService, including all intellectual property rights in the foregoing. Qualtrics reserves all rights notexpressly granted to Licensee in this Agreement.6.2Licensee owns all right, title and interest in and to any questions, responses, and other data andinformation input by Licensee and its survey recipients in the surveys conducted through the QualtricsService (“Data”) including, but not limited to, any survey created by Licensee, as well as any additionaldata provided by the Licensee as part of the survey process including personally identifiable informationprovided by Licensee’s survey recipients and respondents. All such Data shall be deemed ConfidentialInformation of Licensee pursuant to the terms of Section 9 and shall not be utilized by Qualtrics for anyimmixTechnology, Inc.Page 2reformatted 09.17.13
purpose other than to perform its obligations under this Agreement or as agreed to in writing by anauthorized representative of Licensee.7.08.0Term and Termination7.1Reserved.7.2Reserved.7.3Effect of Termination: Upon termination of this Agreement, Qualtrics shall discontinue providing theQualtrics Service to Licensee and Licensee shall cease using the Qualtrics Service. Each party shallpromptly return or destroy all Confidential Information of the other party, as applicable, in accordancewith the terms of the Confidential Information in Section 9 (defined below). For thirty (30) days of thedate of termination, Licensee shall have reasonable access to retrieve and secure its data contained in theservice. In addition, any terms that by their nature extend beyond termination of this Agreement shallsurvive.Representations and Warranties8.1By Qualtrics: Qualtrics represents and warrants to Licensee that:(a) it has the power and authority to enter into this Agreement and perform its obligations hereunder, andsuch performance will not breach any separate agreement by which Qualtrics is bound;(b) it will comply with the laws, rules and regulations that apply to Qualtrics in connection with theconduct of its business and its provision of the Qualtrics Service;(c) it will not knowingly infringe on any party’s patent, trademark, mask work, copyright, trade secret, orother intellectual property right; and will not violate any laws, rules, or regulations applicable to Qualtricsor the Qualtrics Service; and(d) it will use commercially reasonable efforts to allow Licensee to access the Qualtrics Service seven (7)days per week, twenty-four (24) hours per day with a goal of ninety-nine percent (99%) reliability to theQualtrics Service, excluding downtime (i) scheduled in advance for maintenance on a periodic basis, or(ii) due to faults caused by Licensee or Licensee’s system, or (iii) due to other causes outside of thereasonable control of Qualtrics, including without limitation malfunction or cessation of Internet servicesby any third party network or ISP.(e) it will use commercially reasonable efforts to ensure that updates and/or new releases will notintroduce, any program, routine, subroutine, or data (including malicious software or “malware,” viruses,worms, and Trojan Horses) that are designed to disrupt the proper operation of the Service or anysoftware or system used by Licensee in connection with the Service, or which, upon the occurrence of acertain event, the passage of time, or the taking of or failure to take any action, will cause the Service orany system or software used in connection with the Software to be destroyed, damaged, or renderedinoperable.(f) to the best of Qualtric's knowledge, it shall not violate the software as delivered to the Licensee, shallnot violate any proprietary rights of third parties, including, without limitation, patents, copyrights ortrade secrets; and, that the software as delivered to the Licensee will not violate any applicable law, rule,immixTechnology, Inc.Page 3reformatted 09.17.13
regulation or contractual obligations or confidential relationships which Qualtrics may have or with anythird party, or violate the privacy of any third party from whom Qualtrics may obtain any information inconnection therewith.8.2By Licensee: Licensee warrants and represents to Qualtrics that:(a) it has the power and authority to enter into this Agreement and perform its obligations hereunder, andsuch performance will not breach any separate agreement by which Licensee is bound;(b) it will comply with the laws, rules and regulations that apply to Licensee in connection with theconduct of its business and its use of the Qualtrics Service; and(c) it will not knowingly utilize (or allow utilization of) the Qualtrics Service in any manner prohibited bythis Agreement or written Qualtrics policies provided to Licensee, or reverse engineer or tamper with thesecurity of any Qualtrics computer software.8.39.0Limitation of Warranties: EXCEPT AS SET FORTH IN THIS SECTION 8, (i) NEITHER PARTYMAKES ANY OTHER REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, AND (ii)ALL PRODUCTS AND SERVICES ARE PROVIDED BY QUALTRICS ON AN “AS IS” BASIS.QUALTRICS DOES NOT WARRANT THAT THE QUALTRICS SERVICE OR ITS SOFTWAREWILL BE ERROR-FREE OR THAT ALL NON-CONFORMITIES CAN BE OR WILL BECORRECTED. QUALTRICS DOES NOT MAKE ANY WARRANTIES, REPRESENTATIONS ORCONDITIONS WITH RESPECT TO ANY THIRD PARTY CONTENT, EXPRESS OR IMPLIED.EXCEPT AS SET FORTH IN THIS SECTION 8, EACH PARTY EXPRESSLY DISCLAIMS ALLOTHER REPRESENTATIONS OR WARRANTIES, CONDITIONS AND REPRESENTATIONSRELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED,STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIESOF FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND MERCHANTABILITY.Confidential Information9.1Definition: “Confidential Information” means the substantive terms of this Agreement, business andmarketing plans and strategies, non-public business and technology information, trade secrets, data andinformation included in surveys by Licensee and all personally identifiable information provided bysurvey respondents, any written materials marked as confidential and any other information, includingvisual or oral information, which reasonably should be understood to be confidential. ConfidentialInformation does not include information that a party can prove: (a) is now or later becomes generallyavailable to the public without fault of the party who received such information (“Recipient”) from theother party (“Discloser”); (b) was rightfully in Recipient’s possession prior to its disclosure by Discloser;(c) is independently developed by Recipient without the use of any Confidential Information of Discloser;or (d) is obtained by Recipient without obligation of confidentiality from a third party who has the right todisclose it. Additionally, a disclosure of Confidential Information that is (a) in response to a valid orderby a court or other government body, (b) required by law, or (c) necessary to establish the rights of eitherparty hereunder, shall not be considered to be a breach of this Agreement.9.2Use and Disclosure: Recipient shall not disclose to any person or use for any purpose, except asexpressly permitted by this Agreement, any Confidential Information of Discloser. Recipient maydisclose Confidential Information only to its employees, independent contractors and advisors who needimmixTechnology, Inc.Page 4reformatted 09.17.13
to know such information, and who are bound to keep such information confidential. Recipient shall giveDiscloser’s Confidential Information at least the same level of protection as it gives its own ConfidentialInformation of similar nature, but not less than a reasonable level of protection. Recipient shall maintainConfidential Information in a safe and secure place and shall not copy Confidential Information except tothe extent necessary for the purposes of this Agreement. All confidentiality obligations shall survivetermination of this Agreement.9.3Data Protection: Qualtrics shall use commercially reasonable technology, industry best practices and bestefforts to ensure the integrity and security of all Confidential Information with respect to theft, piracy,unauthorized access, copying, duplication and distribution.9.4Reserved.10.0 Limitation of LiabilityUNLESS OTHERWISE REQUIRED BY APPLICABLE LAW, NEITHER PARTY BE LIABLE TO THE OTHERPARTY OR ANY THIRD PARTY FOR INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGESOR LOST DATA OR PROFITS AS A RESULT OF OR IN ANY WAY CONNECTED TO THE QUALTRICSSERVICE OR THIS AGREEMENT, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT(INCLUDING NEGLIGENCE AND STRICT PRODUCT LIABLITY), AND EVEN IF EITHER PARTY HASBEEN SPECIFICALLY ADVISED CONCERNING THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITHRESPECT TO AN INFRINGEMENT, EITHER PARTY’S AGGREGATE LIABILITY FOR ANY CLAIMS ORDAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THEAMOUNTS PAID OR PAYABLE BY LICENSEE TO QUALTRICS IN THE TWELVE (12) MONTH PERIODIMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.11.0 IndemnificationTo the extent permitted by applicable federal law, Qualtrics will indemnify, hold harmless and defend Licensee, itstrustees, officers, faculty, students, agents, directors, contractors, and employees against any and all damages, suits,claims, liabilities, judgments, costs and expenses arising out of or relating to (i) any personal injury or propertydamage caused by Qualtrics breach of warranties or its unlawful, or willful acts or omissions, (ii) breach ofCompany’ confidentiality obligations, or (iii) an infringement or misappropriation of any third party intellectualproperty or proprietary rights (including, without limitation, trademark, trade secret, copyright or patent). Licenseewill provide prompt written notice to Qualtrics of any claim that Qualtrics is obligated to indemnify under thisAgreement. Qualtrics will be permitted to participate in the defense of the claim and any related settlementnegotiations, and Licensee will cooperate (at Qualtrics expense) with the defense and settlement of the claim.Qualtrics will have the right, at its option and expense, to participate in the defense of any suit or proceedingthrough counsel of its own choosing.12.0 Force MajeureNeither party shall be liable for any loss or damage or be deemed to be in breach of this Agreement to the extentthat performance of such party’s obligations or attempts to cure any breach under this Agreement are delayed orprevented as a result of any event or circumstance beyond its reasonable control.13.0 Public AnnouncementsimmixTechnology, Inc.Page 5reformatted 09.17.13
Neither party shall issue any press release or other public statement regarding this Agreement without the priorconsent of the other party, which shall not be unreasonably withheld.14.0 General14.1Inspection/Acceptance. The Contractor (immixTechnology, Inc.) can only, and shall only tender foracceptance those items that substantially conform to the software manufacturer’s (“Qualtrics”) publishedspecifications. Therefore, items delivered shall be considered accepted upon delivery. The Governmentreserves the right to inspect or test any supplies or services that have been delivered. The Governmentmay require repair or replacement of nonconforming supplies or re-performance of nonconformingservices at no increase in contract price. If repair/replacement or re-performance will not correct thedefects or is not possible, the Government may seek an equitable price reduction or adequateconsideration for acceptance of nonconforming supplies or services. The Government must exercise itspost-acceptance rights-(1) Within the warranty period; and (2) Before any substantial change occurs in thecondition of the item, unless the change is due to the defect in the item.14.2Reserved.14.3Severability: In case of any one or more of the provisions of this Agreement should be held invalid,illegal or unenforceable, such provision(s) shall be modified, if possible, to the minimum extent necessaryto make it (them) valid and enforceable, or if it (they) cannot be so modified, then severed, and theremaining provisions contained herein shall not in any way be affected or impaired.14.4Waiver: Neither party’s failure to enforce strict performance of any provision of this Agreement willconstitute a waiver of a right to subsequently enforce such a provision. No modification, extension orwaiver of this Agreement shall be valid unless made in writing and signed by an authorized representativeof the party to be charged. No written waiver shall constitute, or be construed as, a waiver of any otherobligation or condition of this Agreement.14.5Assignment: Neither party may assign this Agreement, by operation of law or otherwise, without theprior written consent of the other party.14.6Notices: All legal notices between the parties shall be in writing and shall be sent by certified orregistered mail or commercial overnight delivery service, with provisions for a receipt, to the address ofthe other party listed above (or to such other address as a party may furnish to the other in writing).14.7No Agency. This Agreement shall not be construed to create an agency, franchise, representative, jointventure, employment relationship, or partnership between the parties. The parties are and remainindependent contractors. Neither party has the authority to bind the other or to incur any liability orotherwise act on behalf of the other.immixTechnology, Inc.Page 6reformatted 09.17.13
EXHIBIT 11. QUALTRICS SERVICE: Develop and host the survey website which includes all survey development tools,e-mail delivery capabilities, online analysis tools, online survey libraries, tutorials and help facilities.2. RESERVED.3. SUPPORT AND TRAINING: Qualtrics will provide online tutorials, phone support and respond to e-mailsduring normal business hours. Qualtrics will provide a U.S. toll free number that may be used for contactingQualtrics regarding support issues. As each survey project tends to be uniquely structured the majority oftraining will occur through telephone and e-mail support. Quarterly training calls may also be scheduled bythe Qualtrics Account Manager to discuss and/or demonstrate new features that have been made availableby Qualtrics.4. BRANDED SURVEY SITE: This license will operate under a branded platform, which will be created byQualtrics. The cost of this branded platform is included in the bid. Any changes to the site and domain arealso included in the bid.5. SKINS TO MATCH: The corporate branded solution comes with skins in a library that can be used tochange the look and feel of a survey. Licensee will have the ability to request new skins that will fit theirbranding.6. REQUESTS: A “Request” is a server call sent to Qualtrics that occurs each time a site intercept code istriggered. Qualtrics will provide information on the number of requests to Licensee each month. In theevent Licensee exceeds the number of allotted Monthly Requests by fifty percent (50%), or in the eventLicensee exceeds the number of allotted Yearly Requests, Licensee agrees to work with Qualtrics to “trueup” the account.7. DISTRIBUTION OF USERNAMES AND PASSWORDS: Qualtrics will give the Licensee account manager anadmin login name and password. With this admin login the account manager will be able to view the use ofall users and create new usernames and passwords with unique permissions.8. RESERVED.immixTechnology, Inc.Page 7reformatted 09.17.13
This Qualtrics Master License Agreement ("Agreement"), is between Qualtrics, LLC ("Qualtrics"); and Ordering Activity ("Licensee"). Qualtrics has developed a set of computer programs that facilitates and automates the process of conducting surveys (the "Software").
