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CHECKBOX SURVEY, INC. TERMS OF SUPPORT

The following sets forth the terms of the agreement (the “Agreement”) by which Checkbox Survey, Inc. a Delaware corporation with its principal place of business at 44 Pleasant Street, Watertown, MA 02472 (“Checkbox”) will provide Support Services (as defined below) for its Checkbox Survey Software product (the “Software”) which is licensed by the Customer (as defined below) pursuant to Checkbox’s Software License Agreement (“License Agreement”). Except where superseded by this Agreement, all other terms and conditions of the License Agreement are incorporated by reference. Capitalized terms that are not contained herein have the same meaning as in the License Agreement.

1. DEFINITIONS

1.1.   “Bug” means a technical aspect or functionality of the Software that does not execute as outlined in the Documentation. Unexpected behavior isolated to Customer’s specific configuration or environment does not constitute a Bug. Support Incident is recognized as a Bug only after it has been reproduced in steps provided by Customer and has been confirmed by a Checkbox Support Engineer.

1.2.   “Bug Fix Release” means an embodiment of the Software that is released by Checkbox in order to correct Errors.

1.3.   “Designated Support Contact” means Customer’s employee who is authorized to contact Checkbox’s support center.

1.4.   “Error” means a defect that causes the Software not to perform substantially in accordance with the specifications set forth in Checkbox’s Documentation.

1.5.   “Installation” means the process in which the Software installation program is extracted from a CD, diskette, downloaded executable, or network drive onto a single computer’s hard drive, and the setup program is run to completion in accordance with the authorized installation instructions. A completed installation is determined by the successful first run of the Software. This does not include configuration of other applications required by the Software, including, but not limited to Microsoft Windows, Microsoft IIS, SMTP, Microsoft SQL Server, firewalls, or networking components.

1.6.    “Previous Sequential Release” means the embodiment of the Software that has been replaced by a subsequent release, which may include a Bug Fix Release, Software Update Release or Software Upgrade Release.

1.7.   “Software Update Release” means an embodiment of the Software that delivers minor performance improvements or enhancements of existing features and/or functionality to the Software.

1.8.   “Software Upgrade Release” means an embodiment of the Software that delivers substantial performance improvements, architectural changes or new features and/or functionality to the Software, for which Checkbox may charge a separate license fee.

1.9.   “Support Services” means the Software support services that are purchased by Customer, as described on the Checkbox web site. Support Services are optional and purchased separately with the purchase of the Checkbox Survey Server edition and are included with the purchase of the Checkbox Survey Online edition. Purchase terms and conditions are included on the Ordering Form.

1.10.“Support Incident” means an issue requiring Support Services that focuses on one aspect of the Software – e.g. use of a specific feature of the Software or assistance with a specific problem or error message. While this single issue may involve other aspects of the Software, addressing other aspects constitutes a separate issue and a separate Support Incident. A single Support Incident may involve multiple phone calls, emails and off-line research. Checkbox Support Engineers are responsible for determining what characterizes a single Support Incident and communicating same to Customer.

2. SUPPORT SERVICES

Checkbox will provide the Support Services listed herein upon payment of the applicable fees by Customer and pursuant to the terms and conditions of this Agreement.

2.1.   Support Center: The Checkbox Support Center is available to Customer and will be staffed by Checkbox Support Engineers Monday through Friday from 9:00 AM to 5:00 PM US Eastern Time, except for recognized Checkbox holidays. Checkbox holidays will be posted in advance on the Checkbox website (/news). The Support Center can be contacted by opening an online support ticket (at /login) or by telephone at 617-231-8890. During non-working hours, Customer may leave a telephone voicemail with the Support Center or open an online support ticket and the support incident will be reviewed at the start of the next working day. Checkbox will make commercially reasonable efforts to respond to online support inquires and telephone voicemails within 1 business day.

2.2.   Support Protocols: Incoming calls or online support tickets to the Checkbox Support Center are routed to a Checkbox Support Engineer who will assess the nature of the Support Incident and either answer the question or schedule return communication, based on the Support Engineer’s assessment of the priority of the incident (below) and the current load of open support tickets. Support Incidents are classified by the Checkbox Support Engineer into one of the following categories, listed in order of priority:

High: Bug/Error – A potential Bug or Error is preventing Customer from utilizing the Software in accordance with the Documentation.

Mid 1: Installation – Questions about Installation.

Mid 2: Training – Questions regarding Software usage and Documentation.

Low: Enhancement – Functionality not currently available within the Software.

2.3.   Customer Obligations: In order for Customer to receive the Support Services Customer must:

a. Register client(s) and web server(s) with Checkbox’s account representative.

b. Appoint Designated Support Contact(s) who will maintain the integrity of the Software and who will act as Customer’s liaison for all technical communications with Checkbox. Name(s) of Designated Support Contact(s) must be provided to Checkbox prior to initial contact with the Checkbox Support Center. All support communications (whether by telephone or online support ticket) by Customer to Checkbox shall only be made by the Designated Support Contact(s). All   information and materials provided to Customer by Checkbox pursuant to this Agreement will be routed to the Designated Support Contact(s). Customer may change the Designated Support Contact(s) upon written notice to Checkbox.

c. Subject to Customer’s applicable security requirements, provide Checkbox with access to and use of all information and system facilities determined necessary by Checkbox to provide timely Support Services pursuant to this Agreement.

d. Follow procedures and recommendations provided by the Checkbox Support Center in an effort to correct problems, including sending files and data requested by Checkbox Support.

e. To the best of its abilities, read, comprehend and follow operating instructions and procedures as specified in, but not limited to, the Documentation and other correspondence related to the Software.

f. Notify Checkbox of a potential “Bug”, “Error”, malfunction or other problems in accordance with Checkbox’s then current problem reporting procedure. If Checkbox believes that a problem reported by Customer may not be due to a Bug or Error, Checkbox will so notify Customer.

2.4.   Exclusions: Checkbox shall have no obligation to support:

a. Altered, damaged or Customer-modified Software, or any portion of the Software incorporated with or into any other software or product;

b. Any version of the Software other than the current version of the Software or immediately Previous Sequential Release;

c. Software incidents caused by Customer’s negligence, abuse, misapplication or use of the Software other than as specified in the Documentation, or other problems beyond the reasonable control of Checkbox; or

d. Software installed on any hardware, operating system version or network environment that is not supported by Checkbox;

e. Questions related to modifications to the product;

f.  Configuration of other applications required by the Checkbox application, including, but not limited to Microsoft Windows, Microsoft IIS, SMTP, Microsoft SQL Server, firewalls, or networking components.

g. Customers needing general training. Training services may be purchased separately or Customer may take advantage of Checkbox support documentation located at /support/.

3. TERM AND TERMINATION

3.1.   Term: The initial term of this Agreement is one (1) year from the date of purchase, unless terminated earlier in accordance with the terms of this Agreement.

3.2.   Termination: Checkbox may suspend or terminate Support Services to Customer if Customer fails to pay Support Service fees as provided in this Agreement in full and by the due date listed on Customer’s invoice, or breaches any provision of this Agreement or the License Agreement, and such failure or breach is not remedied within thirty (30) days after Customer receives written notice thereof. Support Services shall automatically terminate upon termination of the License Agreement.

3.3.   Reinstatement: If Support Services are terminated for any reason, Customer may reinstate or renew Support Services (at Checkbox’s sole option) by paying Checkbox all applicable intermediate and reinstatement Support Services fees.

4. LIMITED WARRANTY

Checkbox warrants that Support Services will be performed with the same degree of skill and professionalism as is demonstrated by like professionals performing services of a similar nature. Checkbox shall use commercially reasonable efforts to resolve each Support Incident but Checkbox does not warrant that every Support Incident will be resolved. Fees will not be refunded if the Support Incident is not resolved.

EXCEPT FOR THE FOREGOING EXPRESS LIMITED WARRANTY, THE SUPPORT SERVICES ARE PROVIDED “AS IS”, AND CHECKBOX MAKES NO OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SUPPORT SERVICES. CHECKBOX SPECIFICALLY DISCLAIMS ANY IMPLIED* WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE.  Checkbox disclaims any and all implied warranties except where those exclusions are prohibited by law. Checkbox customers should consult the laws of their jurisdiction for clarification.

5. LIMITATION OF LIABILITY

5.1.   Direct Damages: CHECKBOX’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR DAMAGES WITH RESPECT TO THE SUPPORT SERVICES UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER THEORY, SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER FOR THE SUPPORT SERVICES UNDER THIS AGREEMENT.

5.2.   Consequential Damages: UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION NEGLIGENCE, SHALL CHECKBOX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY PUNITIVE OR MULTIPLE DAMAGES OR FOR DAMAGES FOR LOST PROFITS OR LOSS OF DATA, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE SERVICES PROVIDED.

6.ADDITIONAL NOTES

6.1.   High Priority Service: Support customers have the option to purchase High Priority Service for any single Incident, with the exception of enhancement requests.  Upon receipt of applicable fees, Checkbox will classify Customer’s issue, bug, or error as ‘High’ priority, move it to the front of the support queue, and accordingly expedite a solution for the bug, error, or issue. Purchase of a High Priority Service item does not guarantee that the bug, error, or issue will be resolved, though Checkbox will make every reasonable effort to resolve the incident.

6.2.   Online Documentation: All users have access to Checkbox’s online documentation and training videos, found at /support/. These resources contain answers to commonly asked questions and issues. Checkbox highly recommends that users access on-line documentation and training resources prior to contacting the Support Center.

6.3.   Professional Services: Customers needing additional services or training that fall outside the scope of Checkbox’s Support Services may purchase Checkbox professional services on an hourly or project basis (exclusions, limitations, and project minimums may apply). Please contact Checkbox Sales for more information and pricing.

6.4.   Software Training: Customers needing training services may purchase webinar-based Checkbox training on an hourly or daily basis (exclusions, limitations, and project minimums may apply). Please contact Checkbox sales for more information and pricing.