General Terms & Conditions

GENERAL TERMS AND CONDITIONS v3 2016.04.16

 

PLEASE READ CAREFULLY. These Terms and Conditions (“Terms”) govern the Services and/or Products provided to the undersigned User/Licensee by Decypher Technologies, Inc (“Company”). Any changes to these Terms will be effective immediately upon the Company sending revised Terms to User.

 

USER USE OF COMPANY’S SERVICES CONSTITUTES USER ACCEPTANCE OF THESE TERMS.

I. Definitions

As used in this Agreement, the following definitions shall apply, unless the context otherwise requires:

(A) “Applicable Rate” shall mean the rate (Hourly or Overtime Rate) specified for the Services hereinafter defined below or in any Agreement, Schedule, Exhibit, Addenda or Amendment attached to this or any subsequent Agreement between the parties.

(B) “A-Tech – Senior Technician Rate” shall mean any DECYPHER team member designed to handle technologies that require a higher degree of specialization than most other network administration tasks including but not limited to Microsoft Server, Cisco IOS, Unix, Linux etc.

(C) “Break-Fix Service” shall mean any service not covered or defined as such in the current DECYPHER Services Agreements, under any attached Schedules, Exhibits, Addenda, Amendment and/or Agreement subsequent hereto (e.g.: DECYPHER Computer Services Agreement Schedules B, C & D; DECYPHER Voice Services Agreement Schedule B; etc.) or a mutually agreed to fixed cost project.

(D) “Company” and/or “Licensor” shall refer to Decypher, LLC, or, “DECYPHER”.

(E) “Computer System” shall include, but is not limited to, all software, servers, computer workstations and other computer equipment, switches, circuits, printers, scanners, and other related computer equipment owned/leased/licensed by User.

(F) “Effective Date” shall mean the first date on which User and Company agreed that Company would provide Services to the User. The Effective Date applies all of these General Terms and Conditions throughout the relationship between Company and User and is not limited to the Effective Dates of each Schedule, Addendum, Amendment and/or Agreement subsequent hereto.

(G) “Help Desk Support” shall mean any and all work done on behalf of User from a remote location with or without User or point of contact support.

(H) “Normal Business Hours” shall mean DECYPHER’ regular business hours Monday through Friday (exclusive of holidays as set forth under the definitions of “Overtime Hours” below) between the hours of 8:00 a.m. and 5:00 p.m. Mountain Standard Time (MST).

(I) “Overtime Hours” shall mean DECYPHER’ overtime hours Monday through Friday, between the hours of 4:31 p.m. until 7:29 a.m. Mountain Standard Time (MST), all day Saturday, Sunday and the following holidays, New Years, Memorial Day, Labor Day, Independence Day, Thanksgiving Day and the Friday following, and Christmas Day.

(J) “Services” shall mean any services provided by Company to User pursuant to the terms of this Agreement, including any and all travel time to and from the User.

(K) “Telephone System” shall mean all software, servers, telephone workstations and other telephone equipment, switches, circuits and other related Telephone equipment owned/leased/licensed by User.

(L) “User” and/or “Licensee” shall refer to the User and/or Licensee (Company/Licensee’s opposite party) of these General Terms and Conditions, engaging Company to provide services described hereunder or in any subsequent Agreements, Schedules, Exhibits, Addenda or Amendments between these parties.

II. Prior Agreements Are Valid, Binding and Enforceable

In the event that an agreement was executed by a User and the Company prior to the Company sending the User these Terms, these Terms will serve as a supplement to said agreement, and in no way will serve to replace the terms contained in any prior agreement. Any terms contained in any prior agreement, executed by User and the Company, prior to the Company sending these Terms to User will remain valid, binding and enforceable. Any prior agreements executed by User and the Company are incorporated herein by reference as if fully set forth herein at length. In the event that any provision contained in any prior agreement conflicts with any provision contained in these Terms, the provision contained in these Terms prevail, the provision contained in the prior agreement will be deemed null and void, and all other provisions contained in the prior agreement that do not conflict with these Terms, will remain valid, binding and enforceable, and are incorporated herein by reference as if fully set forth at length.

 

III. Confidentiality

(A) Confidential Information

(1) Both parties hereto understand that during the term of this Agreement, each party may have access to unpublished, proprietary and otherwise confidential information (hereinafter “Confidential Information”), related to actual or anticipated business and/or business strategies, both of a technical and non-technical nature, relating to each other’s technology or the implementation or exploitation thereof, including, but not limited to, information pertaining to strategies, positions, clients, partners, staff, size, and data, tapes, software, applications, supplier lists, customer lists, customer data, marketing information, documentation, records and all copies of the foregoing of any kind and any materials bearing or containing any of the foregoing. User owns all right, title and interest in and to all of User’s Confidential Information. At all times, both during User’s use of Company’s Services and after the cessation of said Services, whether the cessation is voluntary or involuntary, for any reason or no reason, or by disability, both parties will keep in strictest confidence and trust all of the other party’s Confidential Information and anything related thereto, and will not disclose or use or permit the use or disclosure of any such information or rights pertaining to Confidential Information, and anything related thereto, without the other party’s prior written consent, except as may be necessary in the ordinary course of Company performing its Services for User, or as required by applicable law.

(2) The parties recognize that the parties may have exchanged and in the future likely will exchange with third parties, their Confidential Information subject to a duty on both parties and third parties’ parts to maintain the confidentiality of such information and to use it only for certain limited purposes consistent with the parties’ agreements with such third parties.

(3) Upon the termination or expiration of this Agreement or upon User’s request, Company shall promptly return or destroy all of User’s Confidential Information that Company has in its possession or under its control and if requested, certify in writing to User that all of User’s Confidential Information has been returned or destroyed, as applicable.

(4) Notwithstanding the foregoing, Confidential Information does not include information that (i) is or becomes publicly available other than through a breach of this Agreement by Company, its employees, agents or representatives, (ii) Company can demonstrate is known to or is in the possession of Company or any of its employees, agents or representatives at the time of disclosure, (iii) after disclosure becomes known to or comes into possession of Company or any of its employees, agents or representatives (other than as a result of breach of this Agreement) from a third party that Company, or such employee, agent or representative reasonably believes after reasonable investigation is not under any obligation of confidentiality with respect to, and is lawfully in the possession of, such information; or, (iv) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by subpoena, summons or other legal process, or by law, rule or regulation, or by applicable regulatory or professional standards; provided that prior to such disclosure, User is given reasonable advance notice of such order and an opportunity to object to such disclosure.

(B) Remedy

(1) Without limiting the remedies available to the parties, which will include money damages, the parties acknowledges that the breach of this Agreement will result in material, irreparable injury to Company for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely, and that, in the event of such a breach or threat thereof, the injured party will be entitled to obtain a Temporary Restraining Order and/or Preliminary Injunction (without posting any bond or other security) restraining the breaching party from engaging in activities prohibited herein or such other relief as may be required to enforce any of the provisions of this Agreement.

(2) Without limiting the remedies available to User, which may include money damages, Company acknowledges that its breach of this section (§ 3) may result in material, irreparable injury to User for which there is no adequate remedy at law, that it may not be possible to measure damages for such injuries precisely, and that, in the event of such a breach or threat thereof, User will be entitled to obtain a Temporary Restraining Order and/or Preliminary Injunction (without posting any bond or other security)restraining Company from engaging in activities prohibited herein or such other relief as may be required to enforce any of the provisions of this Agreement.

(C) Compliance with Subpoena

(1) Notwithstanding the terms and conditions contained in §§ III(A) and III(B) above, the parties may comply with any subpoena, governmental request or similar order related to Confidential information, provided that the complying party notifies the other party promptly upon receipt thereof, unless such notice is prohibited by law. The targeted party shall pay complying party’s reasonable expenses for such compliance.

(2) The parties recognize that they may have received and in the future likely will receive from third parties their Confidential Information, subject to a request or similar order related to Company Confidential Information, provided that the complying party notifies the other party promptly upon receipt thereof, unless such notice is prohibited by law, so that the other party may inform the targeted third party if required and permissible. The complying party’s reasonable expenses for such compliance shall be paid by the other party, whose third party is the target of said information request.

(D) Forfeiture/Donation of Property

In the event that (i) User donates or bequeaths a Computer System and/or other equipment(s) or (ii) User fails to receive or take delivery of a Computer System and/or other equipment(s) within 30 days of, Company will render the Computer System and/or other equipment(s) as abandoned and as a forfeiture of property.  Company will not pay User for the property being forfeited. Company will reset system to original factory settings.  No Confidential Information so set forth in Section A will be used for purposes of solicitation, advertising, unsolicited e-mail, or spamming, nor will any Confidential or Personal Information be stored for any reason whatsoever.  Those Computer Systems and/or other equipment(s) that are donated by Company are donated without Warranty.  Company will not be responsible for any additional gratis services or support.

IV. Delivery of Property and Work Product

In the event that the Company ceases to provide Services for User, for any reason, the parties will deliver to each other all, but not limited to, devices, records, sketches, reports, memoranda, notes, proposals, lists, correspondence, equipment, documents, photographs, photographs, negatives, undeveloped film, drawings, specifications, tape recordings or other electronic recordings, programs, data, software, hardware and other materials or property of any nature belonging to the other party and/or the other party’s clients and/or customers, and will not take with or retain, or allow a third party to take or retain, any of the foregoing or any reproduction thereof.

V. Duties of Company

(A) During the term of this Agreement, Company shall perform the Services specified on the attached Schedules, as applicable. Company’s employees shall perform all Services; provided, however, that Company is hereby authorized, as approved by User with respect to the specific scope of work to be performed and subject to their execution of appropriate confidentiality agreements with User, to engage qualified consultants, agents or independent contractors to perform the Services on behalf of Company. Company shall be responsible for the supervision and performance of such consultants, agent or independent contractors.

(B) At Company’s reasonable discretion, and to the extent practicable, Company may perform Services via remote access to, per the applicable Schedules below (in any Agreement, Schedule, Exhibit, Addenda or Amendment attached to this or any subsequent Agreement between the parties), User’s System(s).

VI. Duties of User

(A) During the term of this Agreement, User shall provide Company with any and all available resources, including but not limited to information, documentation, technical assistance and access to the applicable systems (including via remote access) as Company may reasonably require in performing its duties hereunder.

(1) All of User’s servers must be covered by the manufacturers’ warranties for parts replacement. Servers whether or not covered by the manufacturers’ warranties, will be serviced at the applicable Rate (as set forth on Company’s then-current Computer Services Agreement).

(2) User hereby agrees to maintain in full force and affect a license for any and all software serviced by Company for the Term of this Agreement. If, for any reason, User does not maintain a license for software, then Company may, in its sole and absolute discretion, cease providing any and all Services to User.

(B) Company shall be relieved of its duties hereunder to the extent such failure is caused by User’s failure to comply with any of the foregoing provisions of this Section (§ VI).

 

VII. Fees

(A) In consideration of Company’s obligations pursuant to this Agreement, User shall pay Company the rates and fees set forth in this Agreement or in any subsequent Agreement, Schedule, Exhibit, Addenda or Amendment for the Services rendered. Such rates and fees shall be adjusted annually in conjunction with the Company’s increased costs of doing business. The Company may also adjust its rates and fees throughout the Term in the event of a change to the User’s network infrastructure (which change results in the dedication by the Company of greater resources and time). In addition, User shall pay all taxes based on or in any way measured by this Agreement or any Services related hereto, excluding taxes based on Company’s net income. If User challenges the applicability of any such taxes, it shall pay the same to Company and User may thereafter challenge such tax and seek refund. All labor costs quoted are strictly an estimate.  The labor estimates are subject to change based on unforeseen circumstances.  Any work not described within the scope of the services will be priced and performed separately.  In such event, Company will discuss any variations with the User at the time they occur and obtain consent to proceed with the additional work.

(B) Payment of Fees The Annual Fees (as set forth below or on in any subsequent Agreement, Schedule, Exhibit, Addenda or Amendment) shall be due and payable monthly in advance on the first day of each calendar month of the Term and as the same may be extended without prior demand for and without any deductions, setoffs or abatements whatsoever, with the first payment due upon the execution of this Agreement by both parties. All other fees and sales taxes shall be invoiced monthly and shall be due and payable within thirty (30) days after date of Company’s invoice therefore. Upon each subsequent yearly renewal, Company reserves the right to increase the fees.

(C) Late Fees  All sums due Company under this Agreement or in any subsequent Agreement, Schedule, Exhibit, Addenda or Amendment, if unpaid within thirty (30) days of the date due, shall bear interest from such date until paid, at a rate equal 1.5% per month, or the maximum rate permitted by law, on the entire overdue amount for each calendar month or a fraction thereof that any payment to the Company is in arrears; provided User has received three (3) business days notice of such nonpayment.

(D) Disputed Amounts If at any time User disputes in good faith any portion of an invoice from Company, User must pay all monies except for the good faith amount disputed; but such withheld good faith amounts are subject to a Late Fee of 1.5% per month unless the underlying amounts are waived. If User withholds any amount more than the amount disputed in good faith, Company may interpret such act by User as an Anticipatory Breach and may take any and all actions to obtain remedies available under this Agreement, at law or in equity. If in fact a disputed amount is proven to be in error, Company will issue a credit to User before or on the next monthly invoice sent to User.

(E) Refund of Fees In the event of a termination of this Agreement for reasons other than User’s default, the User shall be entitled to a refund of any unearned portion of such Fees theretofore paid.

 

VIII. Limited Warranty.

Company represents and warrants to User as follows:

(A) Intellectual property warranties:

  • At the time the Services are rendered, it will have all the rights, authorizations and licenses necessary to provide the Services;
  • To the best of its knowledge at the time the Services are rendered, Company’s use of third party software and hardware to perform the Services will not infringe the intellectual property rights of any third party; and,
  • Upon full payment, Company will transfer to User the rights to third party software and hardware purchased by Company for installation on User’s system.

(B) Sale of Products In connection with the sale, if any, of software or other products (hereinafter “Products”) by the Company to User, the Company agrees, to the extent it has the authority, to assign to User any manufacturer’s warranties applicable to the Products. IN CONNECTION WITH ANY SUCH PRODUCT(S) SOLD BY THE COMPANY TO USER, THE COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Upon termination of this Agreement by either party, the Company shall have no further liability or obligation to User with respect to sale of Products.

(C) In fulfilling its obligations to provide the Services during the term of this Agreement, Company will, to the extent commercially reasonable, keep all Company-supplied software and hardware resources used by Company to provide the Services (excluding third party software and hardware resources installed on User’s system) properly maintained and current relative to such industry products and standards and the software and hardware maintenance recommendations of the respective vendors.

(D) The Services will be rendered by Company and by Company’s employees, agents, and contractors, in a professional and competent manner in accordance with commercially accepted industry standards.

(E) In performing the Services hereunder, Company will use commercially reasonable efforts to minimize the risk of undue interruption of the normal business operations of User.

IX. Negation of Warranty

(A) The express warranties set forth in § VIII above shall not apply to the extent the Services provided by Company are delayed or fail to comply as a result of any of the following: (i) unauthorized actions, delay or inaction of User, User personnel or third parties (not including Company’s employees, agents, representatives or contractors); (ii) failure of software and equipment not administered by Company; (iii) incompatibility of software or hardware installed by User or third parties (not including Company’s employees, agents, representatives or contractors) after the effective date of this Agreement; (iv) modification by User or third parties (not including Company’s employees, agents, representatives or contractors) of any work product provided by Company to User, unless the same has been authorized by Company; (v) damage or malfunction of hardware not caused by Company’s employees, agents, or contractors; (vi) acts of God, flood, fire, or other casualty, vandalism, war, the public enemy, or any and all other events of force majeure or failure of common carriers, or any other event or failure out of the Company’s reasonable control; or, (vii) failure of User to perform any of its duties set forth in § VI of this Agreement.

(B) EXCEPT TO THE EXTENT SET FORTH ABOVE IN § VIII: (i) COMPANY DOES NOT WARRANT THE SERVICES PERFORMED HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SERVICES; (ii) COMPANY DOES NOT WARRANT ANY THIRD PARTY SOFTWARE PURCHASED FOR OR BY USER IN CONNECTION WITH THIS AGREEMENT, OR THAT SUCH SOFTWARE WILL MEET OR CONTINUE TO MEET THE MANUFACTURER’S SPECIFICATIONS; (iii) COMPANY DOES NOT WARRANT THAT ANY OR ALL ERRORS, MALFUNCTIONS AND DEFECTS CAN OR WILL BE CORRECTED; (iv) THE WARRANTY IS EXCLUSIVE AND THE COMPANY DOES NOT MAKE, AND USER SPECIFICALLY WAIVES, ALL WARRANTIES, EXPRESSED OR IMPLIED, EXPRESSED OR IMPLIED WITH RESPECT TO THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT AND ALL CORRECTIONS, PROGRAMS, INFORMATION, OFFICE SPACE, EQUIPMENT, AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OF THE COMPUTER EQUIPMENT, SOFTWARE, INFORMATIONAL CONTENT, OR FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, OR ANY OTHER USE; AND, (v) THERE IS NO WARRANTY AGAINST INTERFERENCE WITH USER’S ENJOYMENT OF THE SOFTWARE, OR ANY OF THE COMPUTER OR VOICE SYSTEMS, OR ANY OF THE EQUIPMENT OR AGAINST THE RIGHTS, INCLUDING BUT NOT LIMITED TO THE INTELLECTUAL PROPERTY RIGHTS, OF ANOTHER.

X. Indemnification

(A) Company shall have no liability to User for infringement of any proprietary rights as a result of or related to this Agreement or to any corrections, programs, information, work product or Services provided to User by the Company hereunder.

(B) User hereby agrees to indemnify and hold harmless Company and subsidiaries, their shareholders, directors, officers, employees, agents and assigns under its control against any and all actions or claims and/or losses, liabilities, awards, costs, and expenses including, but not limited to, legal fees and expenses, for any actions or claims (i) brought by a third party software- or hardware- related Company, which software or hardware was purchased by User or by Company for the benefit and at the instruction of User; (ii) brought by any third party resulting from User’s use of any of the Services described herein and/or in the attached Schedules, Exhibits, Addenda and/or Amendments; and, (iii) which Company may incur as a result of or in connection with User’s failure to comply with the terms, covenants and provisions of this Agreement.

(C) User shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that the Company gives User prompt notice of any such claim of which it learns. In any action, claim or proceeding brought against Company arising out of the foregoing, User shall pay all of Company’s reasonable costs and expenses incurred in connection therewith including without limitation, reasonable attorneys’ fees and costs. Subject to the provisions and limitations set forth in §§ VIII, IX and XI of these terms and conditions, Company shall indemnify and hold harmless User from and against any and all losses, costs, and expenses arising from (i) Company breach of this Agreement; or, (ii) gross negligence or willful misconduct of Company; provided that such indemnification shall not affect the limitation on Company’s liability as set forth at § XI, Limitation of Liability, below.

(D) In the event of any occurrence giving rise to indemnification, the indemnified party shall (i) give prompt notice thereof to the indemnifying party; (ii) choose counsel; (iii) reasonably cooperate in the defense of such claim; and, (iv) not settle such claim, if same still pertains to the indemnifying party, without the prior written consent of the indemnifying party, which consent shall be reasonable in nature.

 

XI. Limitation of Liability

(A) In no event shall either party be liable to the other party, regardless of form of action whether contract or tort, including but not limited to Negligence actions or claims, for any indirect, special, consequential or punitive damages, or similar damages, or for claims made by any third parties, even if the possibility of such claims or damages was disclosed and liability shall not extend to claims or lost profits arising out of or relating to this Agreement or the performance of Services hereunder or any breach thereof unless such damages or lost profit are the result of gross negligence or willful misconduct of such party; provided however, that in no event shall Company’s liability to User (if any), for any reason whatsoever, exceed the total amount of all of the Annual Fees (as set forth in this Agreement attached hereto at Schedule A) actually paid to Company by User during the preceding twelve (12) months.

(B) Exculpatory Clause: If Company shall be liable hereunder to User for damages, User shall, subject to the provisions of § XI(A), look only to the assets of Company for the satisfaction of User’s remedies, if any, and not to any of the assets of any employees, owners, shareholders, officers, partners, trustees, affiliates, and/or directors.

 

XII. Term and Termination

(A) This Agreement shall commence on the date first above written and, unless otherwise terminated as provided herein, shall remain in full force and effect for a period of thirty six months (3) years (hereinafter “Term”); and, provided User is not in default under this Agreement, this Agreement shall automatically renew for subsequent one (1) year terms, unless written Notice of non-renewal is delivered by either party to the other not less than ninety (90) days prior to the expiration date of the then-current Term of this Agreement.

(B) This Agreement may be terminated upon the occurrence of one or more of the following; provided, however, that the terminating party shall have no liability to the other party (other than for accrued but unpaid fees) for the exercise of any rights granted in this paragraph, nor shall such exercise have the effect of waiving any rights, claims, or damages to which the terminated party might be entitled:

(1) By Company, if User fails to pay Company any amounts of any nature required by User to be paid hereunder within thirty (30) days from the invoice date for Services rendered; Subject to the provisions of VII(C) herein

(2) By either party if the other party becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy law; or,

(3) By either party, if the other party is in default of any provision of this Agreement or the Schedules, Exhibits, Addenda or Amendments attached hereto, provided written notice of such alleged default has been given to the other party and such other party has not cured such default within fifteen (15) days after receipt of such notice, or default cannot reasonably be cured within fifteen (15) days.

(C) In the event of any termination of this Agreement by Company for User’s uncured breach, Company may, in addition to any and all remedies available in this Agreement or the Schedules, Exhibits, Addenda or Amendments attached hereto, at law or in equity:

(1) Declare all amounts, including but not limited to costs, damages, expenses, attorneys’ fees and disbursements, owed to it hereunder due to Services performed or otherwise to be immediately due and payable;

(2) Repossess all supplies, spare parts and other items supplied by Company hereunder for which payment is due, has been invoiced and has not been received by Company, and is not contested in good faith by User; provided Company shall first allow User a reasonable period of time to transfer any of User’s information that may be contained on such items, and Company shall then delete such information; and

(3) Cease performance of all Services hereunder without liability of any nature to User.

(D) In the event of any termination of this Agreement by User by reason of Company’s insolvency or pursuant to § XII(B)(3), Company shall refund to User, within thirty (30) days of such termination, an amount equal to the difference, if any, between the amounts owed to Company by User, if any and a pro-rated portion of the prepaid Annual Fee theretofore paid by User to Company for month in which the termination occurred, based on the number of days remaining in the period for which such Annual Fee was paid.

 

XIII. Non-Solicitation

(A) The parties that during the period Company is providing Services to User hereunder, and for a period of eighteen (18) months thereafter, the parties will not, without the other’s prior written consent, directly or indirectly, solicit, employ, retain the services of, interfere with or attempt to entice away from the other party or any affiliate of the other party, any person who was an employee, independent consultant, contractor or agent of the other party at any time during which Company was providing Services to User.

(B) User understands that employees, consultants and independent contractors of the Company, including managers and field technicians (hereinafter “Company Hires”), have signed agreements with the Company which include covenants that such Company Hires shall not accept employment or engagement with any client of the Company. It is also understood that such agreements are enforceable under the laws of the State of Colorado and that the Company has the right to take legal action against any signatory to an arrangement whereby Company Hire accepts employment or engagement with User without the prior written consent of the Company or in violation of the covenants contained in the Company’s proprietary agreements with the Company Hires.

 

XIV. Insurance

(A) Company represent and warranties that it is properly bonded and insured and User represents and warranties that it is properly insured at a minimum to meet Colorado Law. In any situation where Company employees, agents or assigns will be doing work for the User in a jurisdiction other than the State of Colorado, User asserts that it is properly insured at a minimum to meet the qualifications of that jurisdiction’s insurance laws.

XV. General

(A) Independent Contractors The relationship between Company and User created by this Agreement shall be that of independent contractors. Nothing contained in this Agreement shall be construed as constituting a partnership or agency between Company and User.

(B) Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Both parties agree that any claims asserted by or against Company or User arising under this Agreement, or any Schedule, Exhibit, Addenda. Amendment or subsequent Agreement hereto, shall be heard and determined exclusively either in the Courts of the United States located in the City of Aspen or in the Courts of the State of Colorado located in the County of Pitkin. THE PARTIES HERETO HEREBY AGREE TO WAIVE TRIAL BY JURY.

(C) Entire Agreement Each party acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and further agrees that this Agreement, including all Schedules, Exhibits, Addenda, Amendments or subsequent Agreements, are the complete and exclusive statement of the agreement between the parties with respect to the subject matter hereof, and supersedes and merges all prior proposals, understandings, and all other agreements, oral and handwritten, between the parties relating to the subject matter of this Agreement. This Agreement may not be modified or altered except by written instrument duly executed by both parties.

(D) Enforceability If any provision of this Agreement, Schedule, Exhibit, Addenda, Amendment or subsequent Agreement shall be held to be invalid, illegal, or otherwise unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.

(E) No Waiver The failure of either party to exercise in any respect any right provided for herein shall not be or deemed a waiver of any right hereunder. No waiver of any condition in this Agreement shall be implied by any omission of Company to enforce any remedy on account of the violation of any such condition and no receipt of money by Company after the termination, in any way, of the Term hereunder or after the giving of any notice shall reinstate, continue or extend the Term hereof or affect any notice given to User. No modification, waiver or amendment to this License Agreement shall be binding unless such modification, waiver or amendment is in writing and signed by both parties.

(F) Assignment This Agreement and any Schedules, Exhibits, Addenda, Amendments or subsequent Agreements and the rights and duties hereunder shall not be assignable by the parties hereto except upon the prior written consent of the other which consent shall not be unreasonably withheld; provided however, for the purposes of this provision, a sale of all or substantially all of the Company’s assets to a third party, the sale of fifty percent (50%) or more of the Company’s interest to a third party, or the merger, consolidation or other business combination of the Company with a third party shall not require consent. User may assign its rights and duties hereunder to any current or future parent, affiliate or subsidiary having a net worth equal to or greater than that of User, as evidenced by then current certified financial statements provided that User shall give Company written Notice ninety (90) days prior, such financials and any other information reasonably requested by Company.

(G) Supervision User acknowledges that it does not have any authority or power to supervise or otherwise direct or regulate the employees or operations of the Company.

(H) Miscellaneous Submission of this Agreement for examination shall not bind Company in any manner and no obligation on Company shall arise until this Agreement is signed and delivered by both Company and User.

(I) Force Majeure The parties hereto shall not be responsible for any failure or delay in the performance of any obligation hereunder caused by Acts of God, flood, inclement weather, fire, or other casualty, vandalism, war, the public enemy or failure of common carriers.

(J) Notices Unless otherwise provided herein, all notices given hereunder shall be in writing and sent via email with proof of receipt, or by nationally recognized overnight courier providing a receipt, or by hand delivery with a receipt obtained, or by registered or certified mail, return receipt requested, addressed to   Decypher, LLC, 1810 Platte St, Denver, CO 80202, or at such other address as the parties shall designate in writing and attached hereto via amendment.