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USER AGREEMENT FOR SURVEY SUPPORT PULSE
and/or SURVEY SUPPORT INSIGHT SURVEY SOFTWARE

Any person or entity accessing the Survey Support Pulse and/or Insight survey software or any of the information contained herein, as well as the entity or organization indicated in the registration form, and the entity or organization for which a survey is being conducted (individually and collectively referred to in this agreement as “Customer”, “User”, or “You”) agrees to and is bound by the following terms and conditions of this User Agreement (“Agreement”). This Agreement is a legal agreement between Customer and Foresight International, Inc. (“Company”) for survey software and services provided to Customer by Company. These survey software and services (“Survey Software And Services” or “Software”) include computer software, data storage and delivery mechanisms, databases and related designs, templates, survey questions, reports, images, text, printed materials, and online or electronic documentation.

IF YOU DO NOT READ, AGREE TO, OR UNDERSTAND THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE PULSE OR INSIGHT SURVEY. USE OF SURVEY SOFTWARE AND SERVICES BINDS CUSTOMER TO THE TERMS OF THIS AGREEMENT.

Whereas, Company is in the business of providing a variety of survey related services; and has developed Survey Software And Services accessible via the World Wide Web (or Internet) for the purpose of conducting surveys,

Whereas, User desires to obtain the right to use the Survey Software And Services,

Now therefore, in consideration for the mutual promises made herein, and other valuable consideration, the receipt of which is acknowledged, Company and the User agree as follows:

TERMS AND CONDITIONS:

1) Term:
The term of this Agreement shall be from the date it is agreed to by User, and lasting for the duration of the hosting time per survey and/or hosting time from activation according to the pricing options web page.

2) Intellectual Property:
You acknowledge that the Survey Software and Services, including but not limited to their structure, organization, source code, appearance, template survey questions, reports, configuration, conceptual framework, images, text, programs, and other materials found on Company's website and techniques disclosed therein are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties, and are owned by Company or its suppliers. You agree that You have no, and will obtain no rights in the Survey Software And Services under this agreement. This Agreement allows You to use the Survey Software And Services that You subscribe to and is subject to the limitations of the pricing plan You have paid for. You acknowledge and agree that the copyright, tradenames, trademarks, patent, trade secret, and all other intellectual property rights of whatever nature in the Survey Software And Services are and shall remain the exclusive property of Company or its suppliers, and nothing in this Agreement should be construed as transferring any aspects of such rights to You or any third party. You agree to use a secure and standard web browser such as Microsoft Internet Explorer or Netscape Navigator to access the Survey Software And Services. You may not make copies of any Software for any reason, and agree not to (and not to allow any third party to) adapt, copy, modify, create a derivative work of, decipher, decompile, disassemble, reverse engineer, reverse assemble, translate or otherwise attempt to discover the source code of the Survey Software And Services, or to knowingly allow others to do so, except to the extent applicable laws specifically prohibit such restriction. You must comply with all applicable laws regarding the use of the Survey Software And Services.

3) Third Party Software and Equipment:
You agree that for proper use of Employee Feedback System, Company may provide, require or recommend use of certain third party software products. You shall be solely responsible for obtaining licenses to such third party software, if such software is not already in Your possession. Company makes no warranties or representations, express or implied, as to the quality, capabilities, operations, performance or suitability of the third party software, including the ability to integrate same with the Survey Software and Services Any third party software provided is expressly provided “as is”.

4) User Conduct:
You are responsible for maintaining the confidentiality of Your login ID(s) and password(s). You are also responsible for all uses of Your account(s), whether or not actually or expressly authorized by You. You alone are responsible for the content You create, publish and/or communicate when using our Survey Software And Services as well as the consequences of any such content or communication. You agree that You will not use our Survey Software and Services to engage in illegal activities. You further agree not to use our services to send any message or material that is unlawful or gives rise to civil liability.

You agree not to use excessive resources, as determined by Company, and Company, in its sole discretion, may take any measures Company deems appropriate, at any time, with or without notice, in response to "excessive" resource use by User. User agrees that Company shall not be liable to User for any actions Company takes to ameliorate excessive use by any User. User agrees not to use Survey Software and Services for sending unsolicited commercial e-mail or “spam”.

User agrees not to attempt to damage, deny service to, hack, crack, reverse-engineer, or otherwise interfere (collectively, "Interfere") with Company's web site in any manner. If User in any way Interferes with Company's web site, User agrees to pay all damages incurred by Company, including any consequential damages. User's Interference with Company's web site relieves Company of any of its contractual or other legal obligations to User, including Company's obligations under its Privacy Policy. Company will cooperate with the authorities in prosecuting any User who Interferes with Company's web site, attempts to defraud Company, or attempts to defraud credit card companies or any other parties through User's use of Company's web site or services

If User represents a survey to be "anonymous" or any other terms that denotes that the survey responders retain their privacy, and, thereafter, User tries to violate the responders' privacy, User agrees to hold harmless, defend, and indemnify Company as described in section ten (10) of this Agreement. This agreement by User to defend, indemnify, and hold Company harmless is in addition to any other legal rights or remedies Company may have under any other part of this Agreement or under the law.

User agrees not to falsify or misrepresent any information provided to Company.

5) Not for survey of children or use by children:
Company’s Survey Software And Services are intended for survey creators and respondents of the age of majority. Company’s Survey Software and Services may not be used by, or to collect information from, minor children, according to laws in the minor's locality, without parental permission. User shall in no case use Survey Software And Services to collect information from children under age 13 without parental permission. User agrees to defend, indemnify, and hold Company harmless from any liability, as described in section ten (10) of this Agreement, related to use of Company's website and Survey Software And Services in a manner inconsistent with this Agreement.

6) Right to refuse service:
Company reserves the right to refuse any or all Survey Software And Services to any User for any reason, at any time, at Company's sole discretion. User agrees that Company may block its IP address or addresses at any time, and at Company's sole discretion, thereby disallowing User's continued use of Company's web site.

7) Updates to Agreement:
The User Agreement, Privacy Policy, and other terms of service may be changed without notice by Company, and use of Company's website or services constitutes agreement with and acceptance of any such changes.

8) Right to use:
User represents and warrants to Company that User has ownership or other authority necessary to post any sound, image, text, or other material it posts on Company's website or imbeds in a survey. Any sound, images, text, or other materials provided by a User and hosted on Company's web site remain the property of the owner of such materials. Such materials are "posted" if they are incorporated as part of a survey hosted by Company on behalf of its Users or if they are incorporated as part of responses to such surveys. User agrees that Company is not responsible for any material posted on its website by User and that Company assumes no liability for User's posted materials. User agrees to defend, indemnify, and hold Company harmless from any liability, as described in section ten (10) of this Agreement, related to material User posts on Company's website.

9) Limited Warranty:
Company will utilize its commercially reasonable efforts to maintain acceptable performance of the Survey Software And Services when used as designed and intended by Company in a manner consistent with this Agreement. Company will utilize its commercially reasonable efforts to maintain backups of the system and databases for disaster recovery purposes. Company will utilize its commercially reasonable efforts to secure the applications and databases using security methods and protocols. Company will not be held responsible for products or services from Company's suppliers or any other third party. Company's sole obligation or liability under this Warranty shall be to use reasonable efforts to correct Survey Software And Services, in a reasonable time to perform in the manner described herein, upon written notice of its failure to so perform from Customer. In the event Company fails to remedy material defects in Survey Software And Services under this Warranty, Customer’s sole remedy and Company's sole liability shall be to receive a partial refund of any License Fee paid hereunder and limited to the period of time that shall begin at the time of notice by Customer.

10) Disclaimer of Warranty:
Company makes no warranty that the Survey Software And Services will be error free or free from interruption or failure, or that they are compatible with any particular hardware or software. Except as set forth in this Agreement, Company makes no claims regarding the availability or performance of Company network or servers. You hereby acknowledge that the access to the Survey Software And Services via the World Wide Web may become unavailable due to acts of God, technical failure of the telecommunications infrastructure or software or delay or disruption attributable to viruses, and actions and omissions of third parties, periodic system maintenance, scheduled or unscheduled. Therefore Company expressly disclaims any express or implied warranty regarding availability or access.

  THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE LIMITED WARRANTIES AND ARE THE ONLY WARRANTIES MADE BY FORESIGHT. FORESIGHT EXPRESSLY DISCLAIMS, AND THE COMPANY HEREBY EXPRESSLY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FORESIGHT DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT SURVEY SOFTWARE AND SERVICES, WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF SURVEY SOFTWARE AND SERVICES AND/OR ITS USE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN SURVEY SOFWARE AND SERVICES, IF ANY, WILL BE CORRECTED. FORESIGHT’S LIMITED WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF FORESIGHT FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF SURVEY SOFTWARE AND SERVICES OR RELATED SERVICES. EXCEPT FOR THE ABOVE LIMITED WARRANTY, THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SURVEY SOFTWARE AND SERVICES IS WITH THE USER.

FORESIGHT MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVER THAT MAKES SURVEY SOFTWARE AND SERVICES AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FORESIGHT AND ITS SUBSIDIARIES AND AFFILIATES SHALL NOT BE LIABLE FOR THE USE OF THE USERS WEB SITE, INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN.

COMPANY SHALL NOT BE LIABLE FOR TO USER FOR ANY CLAIMS OR DAMAGES WHICH MAY BE SUFFERED REGARDLESS OF KIND OR NATURE RESULTING FROM THE LOSS OF DATA, INABILITY TO ACCESS THE INTERNET, OR INABILITY TO TRANSMIT OR RECEIVE INFORMATION, CAUSED BY, OR RESULTING FROM, DELAYS, NON-DELIVERIES, OR SERVICE INTERRUPTIONS, WHETHER OR NOT CAUSED BY THE FAULT OR NEGLIGENCE OF COMPANY.


11) Indemnification of Company by Customer related to use of Survey Software and Services:
User agrees to defend, indemnify, promptly reimburse and hold harmless Company and it directors, officers, agents and employees from all claims, actions, suits, liabilities, losses, damages, judgments, grants, costs and expenses (including attorneys' fees) arising out of or related to the Users use of, inability to use or participation in the Survey Software and Services whether or not occasioned by the negligence or misconduct of the User, a survey respondent, or any employee or agent of the User who uses, or attempts to use the system. User will take all necessary measures to preclude Company from being made party to such claims, actions, suits, liabilities, losses, damages, judgments, grants, costs and expenses.

12) Limitation Of Liability:
Company shall have no liability with respect to its obligations under this Agreement for consequential, exemplary, special, indirect, incidental or punitive damages even if it has been advised of the possibility of such damages. In any event, the aggregate liability of Company for any reason and upon any cause of action or claim shall be limited to the amount of Fees paid to Company by the Company hereunder for the specific portion of Employee Feedback System or service giving rise to such cause of action or claim. This limitation applies to all causes of action or claims in the aggregate, including, without limitation, breach of contract, breach of warranty, indemnity, negligence, strict liability, misrepresentations and other torts.

13) Refunds:
Company does not warrant the success of any surveying effort. Company will NOT offer refunds, unless Company decides to in its sole discretion (this refund is a matter of courtesy and customer satisfaction, but Company is not contractually obligated to provide any refund under this Agreement).

14) Payments:
Customer, shall pay the prices Customer elected on the pricing options web page in full without any right of set-off or deduction, within thirty (30) days. Failure by Customer to pay such amounts in accordance with this Agreement shall make Customer liable to pay Company interest at the rate of one and a half percent (1.5%) per month on the remaining amount due, or at the highest amount permitted by applicable law, such interest to accrue on a daily basis, as well as before any judgment relating to collection of the amount due. Customer shall be responsible for Company's reasonable attorneys' fees associated with the enforcement of the terms of this Agreement or the collection of any amounts due under this Agreement.

15) General:

  1. Entire Agreement: This Agreement, including Company’s electronic record of User’s registration and User’s product and service choices and associated prices, as well as hosting time per survey and/or hosting time from activation according to the pricing options web page, evidences the complete understanding and agreement of the parties with respect to the subject matter hereof and supersedes and merges all previous proposals of sale, communications, representations, understandings and agreements, whether oral or written, between the parties with respect to the subject matter hereof. This Agreement may not be modified except by a writing subscribed to by authorized representatives of both parties.
  2. Governing Law: This Agreement and performance hereunder shall be governed by the laws of the State of Illinois, without giving effect to the principles of conflict of laws of such state or international treaties.
  3. Assignment: This Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and upon their permitted successors in interest and permitted assigns.
  4. Survival: All provisions of this Agreement relating to proprietary rights and intellectual property, shall survive the termination of this Agreement.
  5. No Waiver: The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
  6. Enforceability: If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement shall continue in full force and effect.
  7. Headings: The headings of the sections of this Agreement are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement.

16) Authorization:
Person or entity accessing the Company Pulse and/or Insight survey or any of the information contained herein represents that they are authorized to bind themselves, the entity or organization indicated in the on-line registration form and the entity or organization for which a survey is being conducted to the terms and conditions of this Agreement.

IF YOU HAVE NOT READ, DO NOT UNDERSTAND, OR DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO USE THE SURVEY SOFTWARE AND SERVICES. USE OF SURVEY SOFTWARE AND SERVICES BINDS CUSTOMER TO THE TERMS OF THIS AGREEMENT.