Service Agreement

This Customer Service Agreement (the “CSA”) sets forth the terms and conditions pursuant to which RoundPegg, Inc. (“RoundPegg”) will provide Customer with the right to access and use the Services, as described in the Order Form (defined below) and associated documentation. Capitalized terms used and not defined herein shall have the meanings set forth in the Order Form or the other incorporated exhibits.

1. DEFINITIONS.
1.1 “Authorized User” means any individual who is an employee of Customer (or such other entity as may be authorized in the Order Form) authorized, by virtue of such individual’s relationship to, or permissions from, Customer, to access the Services pursuant to Customer’s rights under this Agreement.
1.2 “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential. Customer Confidential Information includes Customer Content. RoundPegg Confidential Information includes the Services and related technology, product plans, pricing and Access Protocols.
1.3 “Customer Content” means the data, media and content provided by Customer through the Services, including the Employer Profile.
1.4 “Employee Profile” means (a) all data provided to RoundPegg by or for Customer or the applicable employee, about an employee, and (b) all evaluations, “fit assessments”, profiles, or other output from any services provided by RoundPegg regarding such employee.
1.5 “Employer Profile” means (a) all data provided to RoundPegg by Customer about Customer, and (b) the profile of Customer that is developed by RoundPegg pursuant to this Agreement, based on some or all Employee Profile information, but does not include the information in any individual Employee Profile.
1.6 “Order Form” means a document signed by both Parties identifying a given type of Services to be made available by RoundPegg pursuant to this Agreement. Each Order Form shall be agreed upon by the Parties as set forth in Section 2.1.
1.7 “Services” means the services described in the Order Form and provided by RoundPegg including the right to access and use certain content, software and related technology features and functionality made available through a site hosted by or on behalf of RoundPegg.

2. ORDERS, ACCESS AND USE.
2.1 Orders. The Services to be provided by RoundPegg under this CSA are set forth in one or more Order Forms executed by the Parties from time to time. The Parties shall negotiate and sign each Order Form separately. Each Order Form shall set out a description of the applicable Services to be provided by RoundPegg and the fees associated with such Services. Each Order Form shall be incorporated into this CSA by reference, along with incorporated exhibits, if any, and together comprise the agreement between the Parties governing access to and use of the Services set forth in such Order Form (collectively, the “Agreement”).
2.2 Provision of Access. Subject to the terms and conditions of the Agreement, RoundPegg grants Customer a non-exclusive, non-transferable right and license to access and use the Services during the Term through a site hosted by or on behalf of RoundPegg, solely for (i) Customer’s internal business purposes and (ii) the number of Authorized Users paid for by Customer. On or as soon as reasonably practicable after the Effective Date, RoundPegg shall provide to Customer the necessary passwords, security protocols and policies and network links or connections (the “Access Protocols”) to allow Customer to access the Services.
2.3 Responsibility for Application and Content Hosting. RoundPegg shall, at its own expense, host the online based Services. Any development, connectivity, telecommunications or computer network hardware required to provide access to the Internet or the Services is the responsibility of Customer.
2.4 Usage Restrictions. The total number of employees and contractors of Customer that may access and use the Services during the Term shall not exceed the number of users set forth on the Order Form. Customer will not (i) decompile, disassemble, reverse engineer or otherwise attempt to obtain the source code from which any software component of the Services are compiled or interpreted, and Customer acknowledges that nothing in this Agreement will be construed to grant Customer any right to use such code; (ii) create any derivative works or competing product from any of the foregoing; or (iii) allow third parties other than Authorized Users to gain access to or use of the Services. Customer will ensure that its use of the Services complies with all applicable laws, statutes, regulations or rules.
2.5 Other Services. To the extent consulting or other services are specified on an Order Form, RoundPegg will provide such services as expressly described on the Order Form.
2.6 Customer Employees. RoundPegg will make its online “culture survey” service available to specified Customer employees, provided such employees agree to RoundPegg’s Individual User Terms of Service (at http://roundpegg.com/legal/terms). RoundPegg will develop the Employer Profile based on the Employee Profiles of some or all of the employees who complete the culture survey. Customer will be given access to each Employee Profile where applicable.
2.7 Employer and Employee Profiles. RoundPegg will have the right to (a) use any de-identified data or information within the Employer Profile and all Employee Profiles; and (b) disclose any Employee Profile (to the extent allowed under the RoundPegg Individual User Terms of Service or Privacy Policy) and any aspects of the Employer Profile that are de-identified and cannot be associated with Customer or Customer Content.

3. IMPLEMENTATION AND SUPPORT.
3.1 Implementation Services. The Services will be made available to Customer within the timeline mutually agreed upon during the onboarding process. The “Support Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by RoundPegg as required for use of the Services. Such Support Environment includes, but is not limited to, telecommunications and Internet services. Customer shall be solely responsible for any and all costs, fees, expenses, and taxes of any kind related to the Support Environment. RoundPegg shall not be liable for any loss or corruption of data, lost communications, or any other loss or damage arising from any such telecommunications and Internet services. The current Support Environment requirements are detailed here: Usage of modern browsers – Internet Explorer 9+, FireFox 3+, Safari 4+, Chrome 10+
3.2 Customer Support. During the Term, RoundPegg will provide Customer the following support: During the hours of 8am – 5pm Mountain Standard Time Monday through Friday (national holidays excepted) via telephone and email; and, RoundPegg will make commercially reasonable efforts to respond to support requests within 4-hours and guarantees to respond within 1-business day. The following items are excluded from support: errors in Customer Content, third party products or services, and errors not attributable to RoundPegg Services.

4. CUSTOMER RESPONSIBILITIES.
4.1 Authorized Users Access to Services. Customer may permit any Authorized User to access and use the features and functions of the Services as contemplated by this Agreement. Access Protocols cannot be shared or used by more than one Authorized User at a time. If Customer wishes to add additional Authorized Users, Customer may do so by executing a new Order Form detailing the number of additional Authorized Users. Upon written acceptance of the Order Form, RoundPegg shall make the Services available to the additional Authorized Users.
4.2 Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all Customer Content and the security of all Access Protocols required in order to access and use the Services. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the all Customer Content.
4.3 Services Rules and Guidelines. Customer shall use the Services solely for its internal business purposes as contemplated by this Agreement and shall not use the Services to: (a) harvest, collect, gather or assemble information or data regarding other users without their consent; (b) transmit through or post on the Services unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (c) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (d) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (e) attempt to gain unauthorized access to the Services, computer systems or networks related to the Services; or (f) interfere with another user’s use and enjoyment of the Services.

5. FEES AND PAYMENT.
5.1. Fees. In consideration for the access rights granted to Customer and the Services provided by RoundPegg under this Agreement, Customer will pay to RoundPegg, without offset or deduction, all fees set forth on the Order Form in full. All fees are due and payable within thirty (30) days of the invoice date. Unless RoundPegg in its discretion determines otherwise, all fees will be billed in U.S. dollars. Notwithstanding the foregoing, any set-up fees listed on a particular Order Form shall be due and payable upon execution of the applicable Order Form.
5.2. Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges, other than taxes based on RoundPegg’s income.

6. CONFIDENTIAL INFORMATION. Each Party may use Confidential Information of the other Party solely (i) to exercise its rights and perform its obligations under this Agreement; or (ii) in connection with the Parties’ ongoing business relationship. The receiving Party will not use any Confidential Information of the other Party for any purpose not expressly permitted by the Agreement, and will disclose such Confidential Information only to the employees or contractors of the receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Party’s duty hereunder. The receiving Party will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as the receiving Party protects its own confidential or proprietary information of a similar nature but with no less than reasonable care. The receiving Party shall return or destroy all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that RoundPegg may collect aggregated statistical data from Customer Content regarding Customer’s use of the Services and may use such aggregated statistical data solely for internal purposes and to the extent that such does not contain Sensitive Data. External use of Customer data may be used (i.e. case studies, etc.) if mutually agreed upon by both parties in writing. Notwithstanding the foregoing, the confidentiality restrictions above will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.

7. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms. Customer represents and warrants that it will use Service Information only as a component (and not the sole or predominant factor) in any employment decision or action. “Service Information” means information that is the result of any analysis or processing by RoundPegg or is provided to Customer by RoundPegg.

8. DISCLAIMERS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ROUNDPEGG IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES PERFORMED BY ROUNDPEGG ARE PROVIDED “AS IS,” AND ROUNDPEGG DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. ROUNDPEGG DOES NOT WARRANT THAT ANY SERVICES PROVIDED BY ROUNDPEGG WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE APPLICATION SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

9. LIMITATION OF LIABILITY. EXCEPT FOR BREACH OF CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PAYMENT OBLIGATIONS AND INTELLECTUAL PROPERTY INFRINGEMENT, THE CUMULATIVE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO ROUNDPEGG BY CUSTOMER DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. Customer acknowledges and understands that the limitations of liability set forth in this Section 8 form an essential basis of the agreement between the Parties, that the Parties have relied upon such limitations of liability in negotiating the terms and conditions in this Agreement, and that absent such limitations of liability, the terms and conditions of this Agreement would be substantially different.

10. INDEMNIFICATION.
10.1 Indemnification of Customer. RoundPegg agrees to (a) defend Customer against any and all claims by any third party that the Services infringe such third party’s U.S. patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America; and (b) pay any damages awarded or settlement amounts agreed to, provided that Customer promptly notifies RoundPegg in writing of the claim, cooperates with RoundPegg, and allows RoundPegg sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit RoundPegg, at RoundPegg’s sole discretion, to enable it to continue to use the Services, or to modify or replace any such infringing material to make it non-infringing. If RoundPegg determines that none of these alternatives is reasonably available, RoundPegg may terminate the services that are the subject of the infringement claim. This Section 9.1 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Services by Customer, or (ii) combination, operation or use of the Services with other software, hardware or technology not provided by RoundPegg, or (iii) related to the Customer Content (any of the foregoing circumstances under clauses (i), (ii), and (iii) a “Customer Indemnity Responsibility”). IN NO EVENT SHALL ROUNDPEGG’S LIABILITY UNDER THIS SECTION 9 EXCEED THE CAP ON LIABILITY SET FORTH IN SECTION 8. THIS SECTION STATES ROUNDPEGG’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT. If this Agreement is specified on the Order Form as a beta or evaluation Agreement, notwithstanding any provision to the contrary, RoundPegg will have no obligation under this Section 9.1.
10.2 Customer’s Indemnity Obligations. Customer agrees to defend RoundPegg against any claim based on a Customer Indemnity Responsibility or any Customer use (including hiring and firing decisions) of any output (including Employer Profile and Employee Profile) from any Services, and (b) pay any damages awarded therefore or settlement amounts agreed by Customer, provided that RoundPegg promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim; provided that Customer will not settle any third-party claim against RoundPegg unless such settlement completely and forever releases RoundPegg from all liability with respect to such claim or unless RoundPegg consents to such settlement, and further provided that RoundPegg will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

11. TERM AND TERMINATION.
11.1 Term. The term of this Agreement (the “Term”) will commence on the Effective Date and will continue for the period stated on the Order Form (or if not specified on the Order Form, a period of one (1) year), unless earlier terminated in accordance with this Section 10.
11.2 Termination for Breach. Either Party may, at its option, terminate this Agreement in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party, specifically identifying the breach or breaches on which such notice of termination is based. The breaching Party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement will terminate in the event that such cure is not made within such thirty (30) day period.
11.3 Termination Upon Bankruptcy or Insolvency. Either Party may, at its option, terminate this Agreement immediately upon written notice to the other Party, in the event (i) that the other Party becomes insolvent or unable to pay its debts when due; (ii) the other Party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (iii) the other Party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other Party’s creditors.
11.4 Effect of Termination. Upon any termination of this Agreement, Customer will (a) immediately discontinue all use of the Services and any RoundPegg Confidential Information; and (iii) promptly pay to RoundPegg all amounts due and payable under this Agreement. Within thirty (30) business days after the effective date of any termination of this Agreement, RoundPegg shall make available to Customer a comma-separated text file of Customer Content. After such thirty (30) day period, RoundPegg shall have no obligation to maintain or provide any Customer Content to Customer.
11.5 Survival. The provisions of Sections 1.4, 1.7, 3, 4, 7 – 9, 10.4, 10.5 and 11 will survive the termination.
11.6 Suspension of Services. If Customer fails to pay undisputed amounts in accordance with the terms and conditions hereof, RoundPegg shall have the right, in addition to any of its other rights or remedies, to suspend the Services to Customer, without liability to Customer until such amounts are paid in full.

12. MISCELLANEOUS.
12.1 Entire Agreement; Amendments. This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter of this Agreement and supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter of this Agreement. Notwithstanding any language to the contrary therein, no terms and conditions in Customer’s preprinted purchase order or order documentation shall be incorporated into the Agreement. In the event that here is a conflict between an Order Form and this CSA, this CSA shall prevail. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
12.2 Independent Contractors. In making and performing this Agreement, Customer and RoundPegg act and will act at all times as independent contractors, and, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of the other Party.
12.3 Notices. Any notice required by or relating to this Agreement must be in writing and delivered by registered or certified mail, return receipt requested, reputable overnight courier, or personal delivery to the Parties at their respective addresses set forth in the Order Form. Notice shall be deemed received on the date of delivery shown by the corresponding confirmation. A Party may change its address for notification by notifying the other Party in accordance with this paragraph. Any notice required by or relating to this Agreement may also be communicated by email, provided that the sender receives confirmation of the sent email. Such notices will be deemed delivered on the date indicated in such confirmation. For any notice sent by email in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice by means of registered or certified mail or reputable overnight courier.
12.4 Assignment; Delegation. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of RoundPegg, and any attempted assignment or delegation absent such consent will be null, void and of no effect. RoundPegg may assign this Agreement in its discretion.
12.5 No Third Party Beneficiaries. This Agreement does not create any rights for any person who is not a party to it, and no such person may enforce any of its terms or rely on any limitations or exclusions contained in this Agreement.
12.6 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability, and the validity of the remaining parts of the Agreement will not be affected.
12.7 Waiver. Failure to enforce a provision of this Agreement shall not constitute a waiver.
12.8 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure or delay of internet, electronic communications or public utilities, such failure or delay will not be deemed to constitute a material breach of this Agreement.
12.9 Governing Law. This agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, without regard to conflicts of law principles thereof or to the United Nations Convention on the International Sale of Goods. For purposes of all claims brought under this Agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Colorado.
12.10 U.S. Government End-Users. Each software component of the Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Services with only those rights set forth therein.
12.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. Facsimile or scanned signatures and/or signed facsimile or scanned copies of this Agreement shall legally bind the parties to the same extent as originals.

This Customer Service Agreement was last updated March 2016.
RoundPegg, Inc. | PO Box 73  |  Boulder, CO 80306-0073