Software Support Services Terms and Conditions of Sale

In purchasing Electronic Data Reporting (“EDR”) Services pursuant to an EDR Services Proposal (“EDRSP” or “SP”) and/or Annual Software Support Services pursuant to an Annual Software Support Proposal (“ASSP” or “SP”), Customer and SBS Cisco Inc., d/b/a Custom Instrumentation Services Corporation (“CiSCO”) agree that such purchase will be governed by these Terms and Conditions of Software Services Sale (the “Ts & Cs”) which are incorporated into and made part of the applicable SP(s). To the extent that there may be a conflict between the terms of the SP and these Ts & Cs, the Ts & Cs shall control, unless explicitly stated otherwise in the SP. These Ts & Cs, including the terms of the SP, are limited to the scope of the SP and shall not be applicable to any other agreement(s) which may be executed between the parties.

Orders.

Customer shall issue a Purchase Order signed by an authorized representative to CiSCO indicating the SP number and name for the total purchase price and shall include bill-to and ship-to addresses. No contingency contained on any Purchase Order shall be binding upon CiSCO. The terms of the SP shall apply, regardless of any additional or conflicting terms on any Purchase Order or other correspondence or documentation submitted by Customer to CiSCO, and any such additional or conflicting terms are deemed rejected by CiSCO.

Services.

These Ts & Cs and any associated SP may only be amended by a written document signed by each party. The SP defines the entire scope of Services that CiSCO shall provide to Customer.

Pricing.

All prices specified in the SP are exclusive of any taxes, duties or fees. Customer shall pay taxes related to the Services, if any.

Payment and Invoicing.

All payment terms are net thirty (30) days from the date of invoice. All payments shall be in US Dollars and late payments will bear interest from the due date at a rate of up to the maximum permitted by law.

Term and Termination.

The SP will commence on the SP effective date and shall continue until the later of the stated duration date or the date the final Service is delivered. Services pricing is based on an annual contract. Early termination may incur penalties.

Confidentiality.

a. The parties acknowledge that, in connection with these Ts & Cs and the SP, the parties may exchangeConfidential Information. Confidential Information means proprietary and confidential information concerning the parties, the SP or the Ts & Cs. Such Confidential Information may include, but is not limited to, trade secrets, know how, inventions, techniques, processes, programs, schematics, software source documents, data, financial information, customer information and sales and marketing information which the receiving party knows or has reason to know is confidential information of the disclosing party. The receiving party shall, at all times, keep in trust and confidence all such Confidential Information and shall not use such Confidential Information other than expressly authorized by the disclosing party nor shall the receiving party disclose any such Confidential Information to third parties without the disclosing party’s written consent. Upon written request from the disclosing party, the receiving party shall promptly destroy or return to the disclosing party all Confidential Information (including copies thereof) in the receiving party’s possession, custody, or control. The obligations of confidentiality do not apply to information which: (i) has entered the public domain, except where such entry is the result of the receiving party’s breach of the SP; (ii) prior to disclosure hereunder was already rightfully in the receiving party’s possession; or (iii) subsequent to disclosure hereunder is obtained by the receiving party on a non-confidential basis from a third party who has the right to disclose such information to the receiving party. The receiving party will be authorized to disclose Confidential Information pursuant to a valid order issued by a court, government agency or relevant regulatory authority, provided that the receiving party provides where practicable, prior notice to the disclosing party of such disclosure.

b. Customer acknowledges that CiSCO may use data retrieval and analysis tools in provision of the Services. Customer grants CiSCO access to relevant data in a controlled and secure environment which CiSCO shall access only at the request and approval of Customer and only as is necessary to perform the Services.

c. CiSCO shall maintain information security and compliance controls to protect against unauthorized access to Customer’s Confidential Information, including damage to, loss, or alteration of the content. CiSCO employs data security policies to maintain network and internet security.

Warranty.

All Services provided pursuant to the SP and these Ts & Cs shall be performed in a professional, workmanlike manner in accordance with the provisions of the SP. If deliverables provided to Customer by CiSCO are audited or rejected for reasons caused by CiSCO, CiSCO will troubleshoot the problem, re-perform the Services, and provide amended deliverable(s) as soon as is reasonably possible but in no event, longer than ten (10) days from receipt of notice of rejection or audit provided that Customer notifies CiSCO within thirty (30) days of receipt of notification of rejection or audit of deliverables.

CiSCO is not responsible for errors, omissions or defective deliverables caused by a.) services performed by Customer or a third party, b.) failure of equipment provided or maintained by Customer or a third party, c.) abuse or neglect of the DAHS or CEMS, d.) Customer or third party programming errors or e.) detrimental environmental factors whether or not within the Customer’s control. Customer agrees to reimburse CiSCO for applicable time, materials, travel and expenses, if any, should the audit or rejection of deliverable(s) be caused by circumstances other than those within the scope of CiSCO's responsibilities in the SP.

Limitation of Liability and Consequential Damages Waiver.

a. To the extent required under local law, nothing in these Ts & Cs or any associated SP shall limit (I) CiSCO’s liability to Customer for bodily injury or death caused by their negligence or (II) Cisco’s liability for fraudulent misrepresentation or in the tort of deceit.

b. All liability of CiSCO, its officers, employees, agents and suppliers collectively for claims arising shall be limited to the amounts paid to CiSCO for EDR or Software Support Services over the last year. This limitation of liability is cumulative and not per incident.

c. In no event shall either party, its respective affiliates, officers, directors, employees, agents or suppliers be liable for any special, incidental, indirect, or consequential damages, or lost revenue, lost profits, lost business opportunity, or lost or damaged data whether arising in contract, tort, or otherwise, even if such party has been informed of the possibility thereof.

d. To the extent allowed under local law, the parties agree that the forgoing sections 7 and 8 fairly allocate the risks in this SP between the parties. CiSCO and Customer further agree that this allocation is an essential element of the basis of the bargain between the parties.

Force Majeure.

Except for the obligation to pay monies due and owing, neither Party shall be liable for any delay or failure in performance due to events outside the defaulting Party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, industry wide shortages of supplies, actions of governmental entities, riots, war, terrorism, fire, epidemics, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the defaulting Party shall be extended for a period equal to the period during which such event prevented such Party’s performance.

Applicable Law & Jurisdiction.

The validity, interpretation, and performance of these Ts & Cs and any associated SP shall be controlled by and construed under the laws of the state of Colorado, United States of America, and the State and Federal courts of Colorado shall have exclusive jurisdiction over any claim that may arise.

Assignment.

Neither party may assign or delegate its rights or obligations under the SP without the prior written notification to the other party.

Notices.

All notices will be in writing and sent to:

SBS Cisco, Inc. d/b/a Custom Instrumentation Services Corporation

7841 South Wheeling Court

Englewood, CO  80112

Attention: Software Service Orders

Severability.

If one or more terms of the Ts & Cs or any SP becomes or is declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, each such term shall be null and void and shall be deemed deleted from the SP and Ts & Cs. All remaining terms of the SP and Ts & Cs shall remain in full force and effect.

Entire Agreement.

These Ts & Cs and associated SPs, along with any other documents expressly incorporated by the parties, is intended as a complete exclusive and final expression of the parties’ agreement with respect to the subject matter herein and supersedes any prior or contemporaneous agreements, written or oral.