CONTRACT 5422 Professional Services Agreement CLOSEDAgreement No. 5422
PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF EL SEGUNDO AND
DECISIONWISE, LLC.
This AGREEMENT is entered into this 8t" Day of November, 2017 by and between the
CITY OF EL SEGUNDO, a municipal corporation and general law city ("CITY") and
DECISIONWISE, LLC., a Utah Corporation ("CONSULTANT").
1. CONSIDERATION..
A, As partial consideration, CONSULTANT agrees to perform the work listed in the
SCOPE OF SERVICES, below;
As additional consideration, CONSULTANT and CITY agree to abide by the
terms and conditions contained in this Agreement;
B. As additional consideration, CITY agrees to pay CONSULTANT a sum not to
exceed Twenty One Thousand, Three Hundred and Fifty dollars ($21,350.00) for
CONSULTANT's services. CITY may modify this amount as set forth below.
Unless otherwise specified by written amendment to this Agreement, CITY will
pay this sum as specified in the attached Exhibit "A" and "B," which is
incorporated by reference.
2. SCOPE OF SERVICES.
A. CONSULTANT will perform services as listed in attachments Exhibits "A" and
"B," which are incorporated by reference covering the following 3 -Phase projects.
Project 1: Employee Survey —pursuant to Attachment A $ 7,700.00
Project 2: 360° Feedback Survey —pursuant to Attachment B $13,650.00
Phase 1: Executive Management ($5,460.00)
Phase 2: Managers and Supervisors ($6,940.00)
Other: Survey Customization Setup ($1,250.00)
B. CONSULTANT will, in a professional manner, provide baseline employee survey
setup, customization and administration, online reporting and executive debrief
and action planning and all other means whatsoever, except as herein otherwise
expressly specified to be furnished by CITY, necessary or proper to perform and
complete the work and provide the professional services required of
CONSULTANT by this Agreement.
3. PERFORMANCE STANDARDS. While performing this Agreement, CONSULTANT
will use the appropriate generally accepted professional standards of practice existing at the time
-1-
Agreement No. 5422
of performance utilized by persons engaged in providing similar services. CITY will
continuously monitor CONSULTANT's services. CITY will notify CONSULTANT of any
deficiencies and CONSULTANT will have fifteen (15) days after such notification to cure any
shortcomings to CITY's satisfaction. Costs associated with curing the deficiencies will be borne
by CONSULTANT.
4. PAYMENTS. For CITY to pay CONSULTANT as specified by this Agreement,
CONSULTANT must submit a separate detailed invoice to CITY for each project which lists the
cost detail for each project and reimbursable costs, if any (all as set forth in Exhibit "A" and "B")
for the tasks performed.
5. NON -APPROPRIATION OF FUNDS. Payments due and payable to CONSULTANT for
current services are within the current budget and within an available, unexhausted and
unencumbered appropriation of the CITY. In the event the CITY has not appropriated sufficient
funds for payment of CONSULTANT services beyond the current fiscal year, this Agreement
will cover only those costs incurred up to the conclusion of the current fiscal year.
6. ADDITIONAL WORK,
A. CITY's city manager ("Manager") may determine, at the Manager's sole
discretion, that CONSULTANT must perform additional work ("Additional
Work") to complete the Scope of Work. If Additional Work is needed, the
Manager will give written authorization to CONSULTANT to perform such
Additional Work.
B. If CONSULTANT believes Additional Work is needed to complete the Scope of
Work, CONSULTANT will provide the Manager with written notification that
contains a specific description of the proposed Additional Work, reasons for such
Additional Work, and a detailed proposal regarding cost.
C. Any payments for Additional Work which would cause the total amount paid to
CONSULTANT pursuant to this Agreement to exceed $25,000 must be approved
by CITY's city council. All Additional Work will be subject to all other terms
and provisions of this Agreement.
7. FAMILIARITY WITH WORK.
A. By executing this Agreement, CONSULTANT agrees that it has:
Carefully investigated and considered the scope of services to be
performed;
ii. Carefully considered how the services should be performed; and
iii. Understands the facilities, difficulties, and restrictions attending
performance of the services under this Agreement.
-2-
Agreement No. 5422
B. If services involve work upon any site, CONSULTANT agrees that
CONSULTANT has or will investigate the site and is or will be fully acquainted
with the conditions there existing, before commencing the services hereunder.
Should CONSULTANT discover any latent or unknown conditions that may
materially affect the performance of the services, CONSULTANT will
immediately inform CITY of such fact and will not proceed except at
CONSULTANT's own risk until written instructions are received from CITY.
8. The term of this
will be from Nove '
Unless otherwise determined by written amendment amendment between lthe p :?l� � - �� to C;r this Agreement
31 2018.
parties, will
terminate in the following instances:
A. Completion of the work specified in Exhibit "A" and "B";
B. Termination as stated in Section 16.
9. TIME FOR PERFORMANCE,
A. CONSULTANT will not perform any work under this Agreement until:
CONSULTANT furnishes proof of insurance as required under Section 23
of this Agreement; and
ii. CITY gives CONSULTANT a written notice to proceed.
B. Should CONSULTANT begin work on any phase in advance of receiving written
authorization to proceed, any such professional services are at CONSULTANT's
own risk.
10. TIME EXTENSIONS. Should CONSULTANT be delayed by causes beyond
CONSULTANT's control, CITY may grant a time extension for the completion of the contracted
services. If delay occurs, CONSULTANT must notify the Manager within forty-eight hours (48
hours), in writing, of the cause and the extent of the delay and how such delay interferes with the
Agreement's schedule. The Manager will extend the completion time, when appropriate, for the
completion of the contracted services.
11. CONSISTENCY. In interpreting this Agreement and resolving any ambiguities, the main
body of this Agreement takes precedence over the attached Exhibits; this Agreement supersedes
any conflicting provisions. Any inconsistency between the Exhibits will be resolved in the order
in which the Exhibits appear below:
A. Exhibit A: Proposal for Services, Employee Survey
B. Exhibit B: 360 Degree Feedback
-3-
Agreement No. 5422
12. CHANGES. CITY may order changes in the services within the general scope of this
Agreement, consisting of additions, deletions, or other revisions, and the contract sum and the
contract time will be adjusted accordingly. All such changes must be authorized in writing,
executed by CONSULTANT and CITY. The cost or credit to CITY resulting from changes in
the services will be determined in accordance with written agreement between the parties.
13. TAXPAYER IDENTIFICATION NUMBER. CONSULTANT will provide CITY with a
Taxpayer Identification Number.
14. PERMITS AND LICENSES. CONSULTANT, at its sole expense, will obtain and
maintain during the term of this Agreement, all necessary permits, licenses, and certificates that
may be required in connection with the performance of services under this Agreement.
15. WAIVER. CITY's review or acceptance of, or payment for, work product prepared by
CONSULTANT under this Agreement will not be construed to operate as a waiver of any rights
CITY may have under this Agreement or of any cause of action arising from CONSULTANT's
performance. A waiver by CITY of any breach of any term, covenant, or condition contained in
this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition contained in this Agreement, whether of the same or different
character.
16. TERMINATION.
A. Except as otherwise provided, CITY may terminate this Agreement at any time
with or without cause.
B. CONSULTANT may terminate this Agreement at any time with CITY's mutual
consent. Notice will be in writing at least thirty (30) days before the effective
termination date.
C. Upon receiving a termination notice, CONSULTANT will immediately cease
performance under this Agreement unless otherwise provided in the termination
notice. Except as otherwise provided in the termination notice, any additional
work performed by CONSULTANT after receiving a termination notice will be
performed at CONSULTANT's own cost; CITY will not be obligated to
compensate CONSULTANT for such work.
D. Should termination occur, all finished or unfinished documents, data, studies,
surveys, drawings, maps, reports and other materials prepared by CONSULTANT
will, at CITY's option, become CITY's property, and CONSULTANT will
receive just and equitable compensation for any work satisfactorily completed up
to the effective date of notice of termination, not to exceed the total costs under
Section 1(C).
Should the Agreement be terminated pursuant to this Section, CITY may procure
on its own terms services similar to those terminated.
Agreement No. 5422
F. By executing this document, CONSULTANT waives any and all claims for
damages that might otherwise arise from CITY's termination under this Section.
17. OWNERSHIP OF DOCUMENTS. All documents, data, studies, drawings, maps, models,
photographs and reports prepared by CONSULTANT under this Agreement are CITY's
property. CONSULTANT may retain copies of said documents and materials as desired, but
will deliver all original materials to CITY upon CITY's written notice. CITY agrees that use of
CONSULTANT's completed work product, for purposes other than identified in this Agreement,
or use of incomplete work product, is at CITY's own risk.
18. PUBLICATION OF DOCUMENTS. Except as necessary for performance of service
under this Agreement, no copies, sketches, or graphs of materials, including graphic art work,
prepared pursuant to this Agreement, will be released by CONSULTANT to any other person or
public CITY without CITY's prior written approval. All press releases, including graphic
display information to be published in newspapers or magazines, will be approved and
distributed solely by CITY, unless otherwise provided by written agreement between the parties.
19. INDEMNIFICATION.
A. CONSULTANT agrees to the following:
i. Indemnification for Professional Services. CONSULTANT will save
harmless and indemnify and at CITY's request reimburse defense
costs for CITY and all its officers, volunteers, employees and
representatives from and against any and all suits, actions, or claims,
of any character whatever, brought for, or on account of, any injuries
or damages sustained by any person or property resulting or arising
from any negligent or wrongful act, error or omission by
CONSULTANT or any of CONSULTANT's officers, agents,
employees, or representatives, in the performance of this Agreement,
except for such loss or damage arising from CITY's sole negligence or
willful misconduct.
ii. Indemnification for other Damages. CONSULTANT indemnifies and
holds CITY harmless from and against any claim, action, damages,
costs (including, without limitation, attorney's fees), injuries, or
liability, arising out of this Agreement, or its performance, except for
such loss or damage arising from CITY's sole negligence or willful
misconduct. Should CITY be named in any suit, or should any claim
be brought against it by suit or otherwise, whether the same be
groundless or not, arising out of this Agreement, or its performance,
CONSULTANT will defend CITY (at CITY's request and with
counsel satisfactory to CITY) and will indemnify CITY for any
judgment rendered against it or any sums paid out in settlement or
otherwise.
-5-
Agreement No. 5422
B. For purposes of this section "CITY" includes CITY's officers, officials,
employees, agents, representatives, and certified volunteers.
C. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
D. The requirements as to the types and limits of insurance coverage to be
maintained by CONSULTANT as required by Section 23, and any approval of
said insurance by CITY, are not intended to and will not in any manner limit or
qualify the liabilities and obligations otherwise assumed by CONSULTANT
pursuant to this Agreement, including, without limitation, to the provisions
concerning indemnification.
20. ASSIGNABILITY. This Agreement is for CONSULTANT's professional services.
CONSULTANT's attempts to assign the benefits or burdens of this Agreement without CITY's
written approval are prohibited and will be null and void.
21. INDEPENDENT CONTRACTOR. CITY and CONSULTANT agree that
CONSULTANT will act as an independent contractor and will have control of all work and the
manner in which is it performed. CONSULTANT will be free to contract for similar service to
be performed for other employers while under contract with CITY. CONSULTANT is not an
agent or employee of CITY and is not entitled to participate in any pension plan, insurance,
bonus or similar benefits CITY provides for its employees. Any provision in this Agreement that
may appear to give CITY the right to direct CONSULTANT as to the details of doing the work
or to exercise a measure of control over the work means that CONSULTANT will follow the
direction of the CITY as to end results of the work only.
22. AUDIT OF RECORDS. CONSULTANT will maintain full and accurate records with
respect to all services and matters covered under this Agreement. CITY will have free access at
all reasonable times to such records, and the right to examine and audit the same and to make
transcript therefrom, and to inspect all program data, documents, proceedings and activities.
CONSULTANT will retain such financial and program service records for at least three (3) years
after termination or final payment under this Agreement.
23. INSURANCE.
A. Before commencing performance under this Agreement, and at all other times this
Agreement is effective, CONSULTANT will procure and maintain the following
types of insurance with coverage limits complying, at a minimum, with the limits
set forth below:
.l yw o f .hismance Limits
Commercial general liability: $2,000,000
Professional Liability $1,000,000
Workers compensation $1,000,000
M
Agreement No. 5422
B. Commercial general liability insurance will meet or exceed the requirements of
the most recent ISO -CGL Form. The amount of insurance set forth above will be
a combined single limit per occurrence for bodily injury, personal injury, and
property damage for the policy coverage. Liability policies will be endorsed to
name CITY, its officials, and employees as "additional insureds" under said
insurance coverage and to state that such insurance will be deemed "primary"
such that any other insurance that may be carried by CITY will be excess thereto.
Such endorsement must be reflected on ISO Form No. CG 20 10 11 85 or 88, or
equivalent. Such insurance will be on an "occurrence," not a "claims made," basis
and will not be cancelable or subject to reduction except upon thirty (30) days
prior written notice to CITY.
C. Professional liability coverage will be on an "occurrence basis" if such coverage
is available, or on a "claims made" basis if not available. When coverage is
provided on a "claims made basis," CONSULTANT will continue to renew the
insurance for a period of three (3) years after this Agreement expires or is
terminated. Such insurance will have the same coverage and limits as the policy
that was in effect during the term of this Agreement, and will cover
CONSULTANT for all claims made by CITY arising out of any errors or
omissions of CONSULTANT, or its officers, employees or agents during the time
this Agreement was in effect
D, CONSULTANT will furnish to CITY duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement and such
other evidence of insurance or copies of policies as may be reasonably required
by CITY from time to time. Insurance must be placed with insurers with a current
A.M. Best Company Rating equivalent to at least a Rating of "A:VII."
B. Should CONSULTANT, for any reason, fail to obtain and maintain the insurance
required by this Agreement, CITY may obtain such coverage at
CONSULTANT's expense and deduct the cost of such insurance from payments
due to CONSULTANT under this Agreement or terminate pursuant to Section 16.
24. USE OF SUBCONTRACTORS. CONSULTANT must obtain CITY's prior written
approval to use any consultants while performing any portion of this Agreement. Such approval
must approve of the proposed consultant and the terms of compensation.
25. INCIDENTAL TASKS. CONSULTANT will meet with CITY monthly to provide the
status on the project, which will include a schedule update and a short narrative description of
progress during the past month for each major task, a description of the work remaining and a
description of the work to be done before the next schedule update.
26. NOTICES. All communications to either party by the other party will be deemed made
when received by such party at its respective name and address as follows:
-7-
If to CONSULTANT:
DecisionWise
815 West 450
South Springville, UT 84663
Attention: Taylor Neufelder
Agreement No. 5422
If to CITY:
City of El Segundo
Human Resources
350 Main St.
El Segundo, CA 90245
Attention: Lynn Lindberg
Any such written communications by mail will be conclusively deemed to have been received by
the addressee upon deposit thereof in the United States Mail, postage prepaid and properly
addressed as noted above. In all other instances, notices will be deemed given at the time of
actual delivery. Changes may be made in the names or addresses of persons to whom notices are
to be given by giving notice in the manner prescribed in this paragraph.
27. CONFLICT OF INTEREST. CONSULTANT will comply with all conflict of interest
laws and regulations including, without limitation, CITY's conflict of interest regulations.
28. SOLICITATION. CONSULTANT maintains and warrants that it has not employed nor
retained any company or person, other than CONSULTANT's bona fide employee, to solicit or
secure this Agreement. Further, CONSULTANT warrants that it has not paid nor has it agreed
to pay any company or person, other than CONSULTANT's bona fide employee, any fee,
commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting
from the award or making of this Agreement. Should CONSULTANT breach or violate this
warranty, CITY may rescind this Agreement without liability.
29. THIRD PARTY BENEFICIARIES. This Agreement and every provision herein is
generally for the exclusive benefit of CONSULTANT and CITY and not for the benefit of any
other party. There will be no incidental or other beneficiaries of any of CONSULTANT's or
CITY's obligations under this Agreement.
30. INTERPRETATION. This Agreement was drafted in, and will be construed in accordance
with the laws of the State of California, and exclusive venue for any action involving this
agreement will be in Los Angeles County.
31. COMPLIANCE WITH LAW. CONSULTANT agrees to comply with all federal, state,
and local laws applicable to this Agreement.
32. ENTIRE AGREEMENT. This Agreement, and its Exhibit, sets forth the entire
understanding of the parties. There are no other understandings, terms or other agreements
expressed or implied, oral or written. There is one (1) Exhibit to this Agreement. This
In
Agreement No. 5422
Agreement will bind and inure to the benefit of the parties to this Agreement and any subsequent
successors and assigns.
33. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review
this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a
whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against
either Party.
34. SEVERABILITY. If any portion of this Agreement is declared by a court of competent
jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the
extent necessary in the opinion of the court to render such portion enforceable and, as so
modified, such portion and the balance of this Agreement will continue in full force and effect.
35. AUTHORITY/MODIFICATION. The Parties represent and warrant that all necessary
action has been taken by the Parties to authorize the undersigned to execute this Agreement and to
engage in the actions described herein. This Agreement may be modified by written amendment.
CITY's executive manager, or designee, may execute any such amendment on behalf of CITY.
36. ACCEPTANCE OF FACSIMILE SIGNATURES. The Parties agree that this Agreement,
agreements ancillary to this Agreement, and related documents to be entered into in connection
with this Agreement will be considered signed when the signature of a party is delivered by
facsimile transmission. Such facsimile signature will be treated in all respects as having the
same effect as an original signature.
37. CAPTIONS. The captions of the paragraphs of this Agreement are for convenience of
reference only and will not affect the interpretation of this Agreement.
38. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this
Agreement.
39. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood,
explosion, acts of terrorism, war, embargo, government action, civil or military authority, the
natural elements, or other similar causes beyond the Parties' reasonable control, then the
Agreement will immediately terminate without obligation of either party to the other.
40. STATEMENT OF EXPERIENCE. By executing this Agreement, CONSULTANT
represents that it has demonstrated trustworthiness and possesses the quality, fitness and capacity
to perform the Agreement in a manner satisfactory to CITY. CONSULTANT represents that its
financial resources, surety and insurance experience, service experience, completion ability,
personnel, current workload, experience in dealing with private consultants, and experience in
dealing with public agencies all suggest that CONSULTANT is capable of performing the
proposed contract and has a demonstrated capacity to deal fairly and effectively with and to
satisfy a public CITY.
[Signatures on next page]
0
Agreement No. 5422
IN �\,'l YN1.,SS�XIII!,"RI"OF the Inirtics hereto luive executed this Agrectneiii the day aIlld
year first hereinabove written,
CIT )j" SEGUNDO DECISIONWISE
-- --------- --
G Or ivIeuuffer
it N/lati, 5er Business Development Manager
Z�
A"FrL ST
Taxpayer ID No.
T
APPROVED AS'r0 FORM:
t�lar , D. [HInsTley
City Attorney
M/
so
DECISIONW'IS
li f,l (v�. �a I V p N i. 2
Agreement No. 5422
EXHIBIT ONE — GENERAL TERMS AND CONDITIONS
DECISIONWISE, LLC
KEY DEFINITIONS FOR THESE GENERAL TERMS AND CONDITIONS:
"Client" shall mean the party receiving services from DecisionWise.
"Contract" shall mean these General Terms and Conditions along with the
accompanying Service Order, which is signed by both the Client and DecisionWise.
"DecisionWise" shall mean DecisionWise, LLC, a Utah limited liability company.
"Engagement" shall mean the contractual relationship between the Client and
DecisionWise where DecisionWise renders Services to the Client pursuant to a
Contract.
"Service.,_O,rder" shall mean the written document outlining the key business terms
where DecisionWise will provide Services to the Client along with these General
Terms and Conditions.
"Services" shall mean training, survey, assessment, and/or consulting services
provided by DecisionWise to the Client.
These General Terms and Conditions will accompany and supplement each Service
Order. In the event of a conflict between these General Terms and Conditions and a
Service Order (as amended), the Service Order (as amended) shall take precedence. The
parties should sign the last page of these General Terms and Conditions.
1. SERVICES, DEEI,VERABLE SERVICE ORDERS
1`a. Each project to be performed by DecisionWise at Client's request shall be
described in a Service Order that must be signed by both parties.
1.2. A Service Order must include the following:
(i) a detailed description of the Services;
(ii) the location(s) where the Services are to be provided, where relevant;
(iii) a description of any materials, and other deliverables to be provided in
connection with the Services;
(iv) the dates on which the survey or consulting services and deliverables are
to be provided;
(v) the fees to be paid by Client for the Services and the Deliverables along
with a payment schedule; and
(vi) such other information as may be agreed to by the parties.
1.3. Client may, by written notice to DecisionWise, request changes to a Service Order.
DecisionWise shall promptly provide Client with an estimate of the impact, if any,
of the requested change on payment terms, completion schedule, and any other
applicable provision of the Service Order. If the parties mutually agree to such
changes, a written amendment to the Service Order will be prepared by
DecisionWise for both parties. No verbal agreement will have any effect unless an
agreement is made in writing, with acknowledgement from both parties. When
changes to the Service Order are minor and do not significantly impact the
Service Order, an email acknowledgement from an authorized representative of
both parties that outlines the changes will be considered approval to complete
the work and alter the Service Order.
o 815 West 450 South, Springville, UT 84663 USA // p +1.801.515.6500 // w decision-wise.com
5
Agreement No. 5422
DECISIONWISE
LEADERSHIP INTELLIGENCE•
1.4. In the event Client believes the Services are not being rendered in accordance
with the Service Order, it shall notify DecisionWise in writing and DecisionWise will
have 10 business days to remedy/cure the situation (or as much time as may be
commercially necessary to cure any problem).
2 I_)l'�.� ISI NWISE l PONSIB TINS AND VARRAN�Il ,.t�k�lC:;��I N('a SUPS' ")..]..
2.1. DecisionWise shall provide all Services in accordance with the schedule agreed
upon in the applicable Service Order.
2.2. DecisionWise shall provide personnel who have the appropriate technical skills,
training, education, and experience to perform the Services. DecisionWise
reserves the right to use third -party providers in order to deliver portions of the
Services. DecisionWise warrants that if will cause any such third -parties to be
bound by the confidentiality provisions of these General Terms and Conditions and
that the quality of any Services provided by third -parties will meet or exceed the
standards set forth in these General Terms and Conditions and the Service Order.
2.3. DecisionWise provides a limited warranty that if will render the Services in a
workmanlike manner and that the Services will generally fulfill the material
purposes for which they are intended under the Service Order.
2.4. DecisionWise shall not be responsible for failures or errors that are attributable to
the Client.
2.5. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 2, THE SERVICES ARE
PROVIDED "AS IS", AND "AS AVAILABLE" AND TO THE FULLEST EXTENT PERMITTED BY
LAW, DECISIONWISE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES,
CONDITIONS AND OTHER TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTIES,
CONDITIONS OR OTHER TERMS AS TO MERCHANTABILITY, SATISFACTORY QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY, CONDITION OR
OTHER TERM ARISING FROM A COURSE OF DEALING OR COURSE OF
PERFORMANCE. NO ORAL OR WRITTEN INFORMATION PROVIDED BY DECISIONWISE
OR ITS EMPLOYEES OR REPRESENTATIVES WILL CREATE ANY WARRANTY, AND THIS
WARRANTY DISCLAIMER SUPERSEDES ANY SUCH INFORMATION. CLIENT
ACKNOWLEDGES AND AGREES IT HAS SELECTED THE SERVICES AND IS SOLELY
RESPONSIBLE FOR ANY RESULTS OBTAINED FROM THE SERVICES AFTER DELIVERY BY
DECISIONWISE AND HAS NOT AND SHALL NOT RELY UPON ANY REPRESENTATIONS
OR WARRANTIES AS TO THE SUITABILITY OR UTILITY OF THE SERVICES TO MEET CLIENT'S
NEEDS OR REQUIREMENTS. DECISIONWISE DOES NOT REPRESENT OR WARRANT THAT
THE SERVICES SHALL BE UNINTERRUPTED OR ERROR -FREE. NOTHING IN THIS SECTION
2 LIMITS OR EXCLUDES DECISIONWISE'S LIABILITY FOR FRAUDULENT
MISREPRESENTATION.
2.6. Except in instances where DecisionWise has failed to provide to Client the Services
and related information as promised in the Service Order or except as agreed
upon in the Service Order, DecisionWise shall have no obligation to provide
ongoing customer support for the Engagement.
3. PAY MENT
3.1. Client shall pay DecisionWise for the Services at the times and in the manner set
forth in the applicable Service Order.
o815 West 450 South, Springville, UT 84663 USA // p +1.801.515.6500// w decision-wise.com
0
Agreement No. 5422
mi
DECISIONWI'SE
LEADERSHIP INTELLIGENCE'
TERM AND TERMIN.A_.TION
4.1. DecisionWise may terminate an Engagement immediately upon written notice to
Client in the event that one or more of the following occur:
(i) Client becomes insolvent, ceases to pay its debts in the ordinary course of
business, is unable to pay its debts as they become due, or makes an
assignment for the benefit of creditors;
(ii) A trustee or receiver is appointed for any or all of Client's assets;
(iii) Any bankruptcy or insolvency proceeding under any federal or state
bankruptcy or insolvency code, or similar law, whether voluntary or
involuntary, is commenced by or against Client;
(iv) Client is dissolved or liquidated;
(v) The Service Order is terminated.
4.2. The Client may terminate their Engagement with DecisionWise as outlined in the
Service Order, subject to the cure provisions of Section 1.4 above.
4.3. DecisionWise may terminate its Engagement with the Client without cause upon
providing 60 -days advance written notice and provided that DecisionWise may
reasonably terminate the Engagement without material harm or prejudice to the
Client.
5. FOR(. E:.. A 1', ;URE: Irr aassibiflyofPerfor�anc e) ._ .
5.1. If the performance of an Engagement, or any obligation except the making of
payments, is prevented, restricted, or interfered with by reason of fire, flood,
earthquake, explosion, or other casualty or accident; strikes or labor disputes;
inability to procure or obtain delivery of parts, supplies, or power; war, terrorist act,
cyber -attack, or other violence; any law, order, proclamation, regulation,
ordinance, demand or requirement of any governmental agency; or any act or
condition whatsoever beyond the reasonable control of the affected party; the
party so affected, upon giving proper notice to the other party, shall be excused
from such performance to the extent of such prevention, restriction, or
interference.
6. C ONFIDE-NTI.AEI..f °,.I Al 1,f I C 6f mlON.
6.1. "Confidential Information" means all documents, software and documentation,
reports, financial or other data, records, forms, tools, products, services,
methodologies, present and future research, technical knowledge, marketing
plans, customer lists, proprietary information, trade secrets, and other materials
obtained by DecisionWise and Client from each other in the course of performing
any Services, whether tangible or intangible and whether or not stored, compiled,
or memorialized physically, electronically, graphically, in writing, or by any means
now known or later invented. Confidential Information shall include all information
intended to be confidential as described in Section 9 below and all information
deemed covered by the Privacy Shield Principles ( y garjv(I y Eur a9. 1 �1� y .
6.2. Confidential Information includes without limitation records and information
(i) that has been marked as proprietary or confidential;
(ii) whose confidential nature has been made known by Client or DecisionWise; or
(iii) that due to its character and nature, a reasonable person under like
circumstances would treat as confidential.
o 815 West 450 South, Springville, UT 84663 USA // p +1.801,515.6500 // w decision-wise.com
7
Agreement No. 5422
DECISIONWISE
LEADERSHIP INTELLIGENCE•
6.3. Notwithstanding the foregoing, Confidential Information does not include
information which:
(i) is already known to the recipient at the time of disclosure;
(ii) is or becomes publicly known through no wrongful act or failure of recipient;
(iii) is independently developed by recipient without benefit of the other party's
Confidential Information; or
(iv) is received from a third party which is not under and does not thereby breach
an obligation of confidentiality.
6.4. Each party agrees to protect the other's Confidential Information at all times and
in the same manner as each protects the confidentiality of its own proprietary and
confidential materials, but in no event with less than a reasonable standard of
care.
6.5. Neither party shall use or disclose to any person, firm or entity any Confidential
Information of the other party without such other party's express, prior written
permission; provided, however, that either party may disclose Confidential
Information to the extent that it is required to be disclosed pursuant to a statutory
or regulatory provision or court order so long as if provides prior notice of such
disclosure.
6.6. Aggregate data (i.e., assessment scores) may be maintained and used by
DecisionWise for purposes of academic and professional research and norming.
When used for these purposes, all data identifying specific individuals or
organizations will be removed.
6.7. It is strongly preferred that the least amount demographic information necessary
to perform the data analysis be delivered to DecisionWise. DecisionWise may
receive the following information from a Client related to Client's employees or
contractors ("Standard Demographic Information"):
6.7.1.Employee Name
6.7.2.Employee Date of Hire
6.7.3.Employee Date of Birth
6.7.4.Employee Compensation
6.7.5.Employee Department and Classification
6.7.6.Employee Contact Information for the Client, such as work e-mail, work
phone numbers, etc.
6.8. Client shall not provide DecisionWise with any information other than the Standard
Demographic Information without DecisionWise's express written consent.
DecisionWise will not be responsible for any damages caused by Client's
disclosure to DecisionWise of information outside the Standard Demographic
Information and where DecisionWise has not expressly consented to receive such
non-standard information. UNDER NO CIRCUMSTANCE SHALL CLIENT EVER DELIVER
TO DECISIONWISE ANY SOCIAL SECURITY NUMBERS, GOVERNMENT IDENTIFICATION
NUMBERS (OR OTHER SIMILAR INFORMATION), CREDIT CARD INFORMATION,
HEALTHCARE INFORMATION, PROTECTED HEALTH INFORMATION UNDER HIPAA,
OTHER PERSONAL FINANCIAL INFORMATION, EMPLOYEE/CONTRACTOR FAMILY
INFORMATION, OR ANY DATA OR INFORMATION WHERE IT IS UNLAWFUL FOR
DECISIONWISE OR CLIENT TO POSSESS SUCH INFORMATION/DATA. NO DATA OR
INFORMATION RELATED TO A MINOR SHALL EVER BE DELIVERED TO DECISIONWISE.
o 815 West 450 South, Springville, UT 84663 USA // p +1,801.515.6500 // w decision-wise.com
Agreement No. 5422
DECISION ISE
LEADERSHIP INTELLIGENCE•
6.9. Client represents and warrants that DecisionWise shall have the right to contact
anyone for which Client has provided the Standard Demographic Data for the
sole purpose of delivery of the Services.
N0 LlABII_I I'Y F()R ASS Si" 1 N I:S�w ISI, f1 I: B.I (�WIN.G,
7.1. Client acknowledges that DecisionWise may administer various assessments,
including psychological or psychometric assessments, in connection with the
Services. DecisionWise will not be responsible for damages cause by the actions
of employees, contractors, or third parties where such actions are motivated, in
part or in whole, by feedback and/or emotions that are caused by the
assessments administered by DecisionWise.
7.2. Client further acknowledges that such assessments, including psychological or
psychometric assessments, should not be used as the sole source of information
from which to make strategic, administrative, personnel, or other decisions.
DecisionWise will not be responsible for actions taken by the Client which are
based on the results or information taken from these assessments.
7.3. During the rendering of Services to the Client, DecisionWise may ask the Client's
employees to provide comments. These employees may choose to disclose
certain information to DecisionWise that should be reported directly to the Client's
human resources function. For example, an employee may disclose details
related to an instance of sexual harassment or they may report facts, which if true,
constitute illegal conduct by the Client and the disclosure of such information may
be protected by whistleblowing laws (such information being referred to generally
as "HR Feedback").
7.4. In connection with any HR Feedback, Client acknowledges the
following: (i) DecisionWise may or may not review the comments submitted
during a survey/assessment and DecisionWise is under no obligation to review any
of the comments it receives in order to discover HR Feedback; (ii) should
DecisionWise come across HR Feedback within a comment, DecisionWise will use
reasonable efforts to inform the Client of the HR Feedback but will maintain the
confidentiality of the person providing the HR Feedback; (iii) while DecisionWise
will use reasonable efforts to provide the Client with the HR Feedback,
notwithstanding anything to the contrary in these General Terms and Conditions
or in the Service Order, DecisionWise shall not be liable to the Client for any
damages suffered by the Client as a result of DecisionWise's failure to provide HR
Feedback to the Client even if DecisionWise has been engaged to review the
comments; and (iv) should it become necessary to break confidentiality,
DecisionWise will do so but only in accordance with the standards set forth in these
General Terms and Conditions.
8. l Ii ITATI )N. >) I IASI-Ill1Y,... N_DEMNIFICATIO_N_
8.1. DECISIONWISE SHALL NOT, TO THE FULLEST EXTENT ALLOWED BY LAW AND UNDER
ANY CIRCUMSTANCES, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE
CLAIM, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES HOWSOEVER CHARACTERIZED, ARISING FROM
OR IN ANY MANNER RELATED TO THE ENGAGEMENT OR THE SUBJECT MATTER
HEREOF, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, WASTED
ADMINISTRATIVE TIME, COST OF PROCURING OR MIGRATING TO SUBSTITUTE
o 815 West 450 South, Springville, UT 84663 USA // p +1.801,515,6500 // w decision-wise.com
we
Agreement No. 5422
DECISION ISE
LEADERSHIP INTELLIGENCE•
SERVICES, OR DAMAGES RESULTING FROM MISTAKES, OMISSIONS, INTERRUPTIONS,
DESTRUCTION, LOSS OR DELETION OF DATA, OR DELAYS IN OPERATION OR
TRANSMISSION.
8.2. IN NO EVENT, SHALL THE AGGREGATE LIABILITY OF DECISIONWISE TO CLIENT EXCEED
125% OF THE TOTAL AMOUNT PAID TO DECISIONWISE BY CLIENT DURING THE
PRECEDING TWELVE MONTHS.
8.3. SUBJECT TO THE LIMITS DESCRIBED ABOVE, A PARTY SHALL INDEMNIFY THE OTHER
PARTY FOR DAMAGES CLAIMED BY A THIRD PARTY AS A RESULT OF A PARTY'S
WILLFUL NEGLIGENCE OR A PARTY'S BREACH OF THIS ENGAGEMENT.
9. ,��_EKS CONFIDENTIALITY
fAD„
9.1. DecisionWise collects basic contact information which includes Standard
Demographic Data provided by the Client, along with user -created logins,
passwords, emails for DecisionWise's own systems and any feedback -provider
logins, passwords, and emails for DecisionWise's own systems. This information is
used to register participants in connection with an Engagement and is treated as
Confidential Information by DecisionWise. DecisionWise may use this information
to contact individual participants and to send notifications and reminders to
facilitate the provision of the Services.
9.2. Visitors to DecisionWise's corporate website are not required to disclose any
personal information. Browser -provided information, Internet Protocol Address,
browser type, browser language etc. is collected in aggregate and is not used to
identify individual users. This information is used solely to improve our services.
DecisionWise may, at times, collect information from our website such as requests
for more information, newsletter registrations, and research/marketing surveys. This
may include name, title, company, email, phone number and other information.
DecisionWise will not sell, share, or rent this information to others in ways different
from what is disclosed in this statement.
9.3. Client acknowledges and agrees that all survey responses collected by
DecisionWise in connection with an Engagement are to be anonymous and any
personally identifiable information shall be held confidential by DecisionWise and
shall not be given to the Client without the express written consent of the individual
at question unless such information is needed:
9.3.1.To prevent the commission of a crime.
9.3.2.Because the material health or safety of an individual is at stake.
9.3.3.Where required by law.
Any release of personally identifiable information shall also require written approval
by an officer of DecisionWise.
9.4. While DecisionWise will not disclose identities as describe above, due to the nature
of a particular survey, it may be possible for a person reviewing survey responses
to surmise the identity of the person who submitted the response(s). This would be
the case with a 360 -degree feedback survey where, by design, an individual's
supervisor is asked to provide feedback. Thus, DecisionWise will do what it is
commercially reasonable to maintain confidentiality, but it cannot provide any
assurance or guarantee that total confidentiality will exist in all circumstances.
9.5. Survey responses provided to DecisionWise are stored on secure servers in a
locked secure data environment. DecisionWise has certified as compliant with
the EU — U.S. Privacy Shield Framework as set forth by the U.S. Department of
o 815 West 450 South, Springville, UT 84663 USA// p +1.801.515 6500 //w decision-wise.corn
10
Agreement No. 5422
[A
iw '
Commerce (see www,,)6va y ,i„l,w,fn,i,dT pfor our listing). Access to Confidential
Information is limited to authorized personnel. DecisionWise shall take reasonable
measures to prevent unauthorized access to or loss of Confidential Information.
10. OWNERSHIP„OF DATA AN_DMATERIALS, REI AI_l.T : I� . E.,RVI, .i. s, DQQ..,I IMO N'l::.. 1 EN_'110N
10.1. Client acknowledges and agrees that DecisionWise has prior to
DecisionWise's Engagement by Client, and will during the course of DecisionWise's
Engagement by Client, perform work that resulted in or will result in the creation of
designs, products, or materials that constitute the intellectual property of
DecisionWise.
10.2. The parties agree that all ideas know-how, processes, information,
documents, designs, surveys, reports, inventions, copyrightable material and other
tangible and intangible materials authorized, prepared, created, made,
delivered, conceived or reduced to practice, in whole or part, by DecisionWise
(the "IP Works") prior to or in the course of providing the Services, including without
limitation, the Deliverables, computer programs, computer systems, data report
formats and documentation (collectively, the "Works") are and will be recognized
for all purposes as the sole and exclusive property of DecisionWise and shall not
be considered "work for hire" as defined by 17 U.S.C. § 101 and §201. DecisionWise
hereby grants to Client a non-exclusive, worldwide, fully -paid, perpetual license
to any unique IP Works that are created in the course of an Engagement and are
specific to the Engagement. DecisionWise shall have the right to use and retain
any data received from Client for benchmarking and trending purposes.
10.3. DecisionWise shall be considered the author and/or creator of the Works
and shall own all right, title, and interest in and to the copyright to the Works and
in any and all of its derivative works. Client acknowledges and agrees that the
Works may not be published or distributed to the general public without the prior
written consent of and additional consideration payable to, in each case,
DecisionWise.
10.4. DecisionWise will retain all survey data for an indefinite period of time.
DecisionWise will keep all other materials provided by the client for a period of 4
years from the date the materials were provided to DecisionWise by the clients.
After that, any such materials may be destroyed according to DecisionWise's
standard data and document retention policies.
11. NON.-EXCLUSIVITY;-SOLICITATI,O„N
11.1. During the term of this Agreement, client may engage the services of any
individual or entity that competes with DecisionWise or offers services similar to
those offered by DecisionWise, and any such engagement shall not be
considered a breach of this Agreement. During the term of this Agreement,
DecisionWise may provide the services described in any Service Order to any
individual or entity that it desires, including but not limited to any which
competes with the client, and any such Engagement shall not be considered a
breach of this Agreement.
11.2. During the term of the Engagement and for a period of two (2) years
thereafter, DecisionWise will not solicit any employee or contractor of the Client
to terminate or alter its relationship with the Client.
o 815 West 450 South, Springville, UT 84663 USA// p +1.801.515.6500 // w decision -wise.corn
11
DECISION ISE
i i"waaPrHIP tNu r,,i..I o:K(A
12. GENERAL-
12.1.
ENERAL
Agreement No. 5422
12.1. The Engagement shall be construed and enforced under the laws of State
of Utah. All legal proceedings that may be brought between the parties in
connection with the Engagement shall be brought only in the state courts
located within Utah County, Utah or the federal courts located within the State
of Utah and each party hereby irrevocably consents to the jurisdiction of such
courts.
12.2. No modifications or amendments to the Engagement or any waiver of
any terms or conditions hereof shall be effective unless put in writing and signed
by both parties.
12.3. Client recognizes that assessments, such as multi -rater assessments, may
involve the disclosure of personal information or performance data. While
DecisionWise will take reasonable effort to ensure those participating in these
assessments and coaching are provided with professional survey and consulting
services, DecisionWise takes no responsibility for actions (legal and otherwise) on
the part of the employee(s) or Client resulting from the information contained
within the assessment or consulting sessions.
12.4. In any action to enforce the terms of the Engagement, the substantially
prevailing party shall be entitled to recover from the non -substantially prevailing
party its reasonable attorneys' fees, courts costs, litigation expenses, deposition
fees and costs, reasonable travel costs, court filing fees, and other similar
expenses, including all such expenses incurred in connection with any appeals.
12.5. These General Terms and Conditions and the corresponding Service Order
may not be assigned by the Client without the express written consent of
DecisionWise.
Client Signature DecisionWise Signature
Date: Date:
o 815 West 450 South, Springville, UT 84663 USA// p +1801.515.6500// w decision -wise.corn
12
Agreement No. 5422
8
DECISION
LEADERSHIP INTELLIGENCE•
EXHIBIT ONE — GENERAL TERMS AND CONDITIONS
DECISIONWISE, LLC
KEY DEFINITIONS FOR THESE GENERAL TERMS AND CONDITIONS:
"Client" shall mean the party receiving services from DecisionWise.
"Contract" shall mean these General Terms and Conditions along with the
accompanying Service Order, which is signed by both the Client and DecisionWise.
"DecisionWise" shall mean DecisionWise, LLC, a Utah limited liability company.
"Engagement" shall mean the contractual relationship between the Client and
DecisionWise where DecisionWise renders Services to the Client pursuant to a
Contract.
"ServiceOrder" shall mean the written document outlining the key business terms
where DecisionWise will provide Services to the Client along with these General
Terms and Conditions.
"Services" shall mean training, survey, assessment, and/or consulting services
provided by DecisionWise to the Client.
These General Terms and Conditions will accompany and supplement each Service
Order. In the event of a conflict between these General Terms and Conditions and a
Service Order (as amended), the Service Order (as amended) shall take precedence. The
parties should sign the last page of these General Terms and Conditions.
1. I`@; a_l :_I . 16;_Ll € i E IT' I [ FBvVIC�E ORDERS
1.1. Each project to be performed by DecisionWise at Client's request shall be
described in a Service Order that must be signed by both parties.
1.2. A Service Order must include the following:
(i) a detailed description of the Services;
(ii) the location(s) where the Services are to be provided, where relevant;
(iii) a description of any materials, and other deliverables to be provided in
connection with the Services;
(iv) the dates on which the survey or consulting services and deliverables are
to be provided;
(v) the fees to be paid by Client for the Services and the Deliverables along
with a payment schedule; and
(vi) such other information as may be agreed to by the parties.
1.3. Client may, by written notice to DecisionWise, request changes to a Service Order.
DecisionWise shall promptly provide Client with an estimate of the impact, if any,
of the requested change on payment terms, completion schedule, and any other
applicable provision of the Service Order. If the parties mutually agree to such
changes, a written amendment to the Service Order will be prepared by
DecisionWise for both parties. No verbal agreement will have any effect unless an
agreement is made in writing, with acknowledgement from both parties. When
changes to the Service Order are minor and do not significantly impact the
Service Order, an email acknowledgement from an authorized representative of
both parties that outlines the changes will be considered approval to complete
the work and alter the Service Order.
o 815 West 450 South, Springville, UT 84663 USA // p +1.801.515.6500 // w decision-wise,com
1.1
Agreement No. 5422
DECISIONWISE
LEADERSHIP INT E L L I D E N CE
1.4. In the event Client believes the Services are not being rendered in accordance
with the Service Order, it shall notify DecisionWise in writing and DecisionWise will
have 10 business days to remedy/cure the situation (or as much time as may be
commercially necessary to cure any problem).
DECISIONWISE RESPONSIBILITIESmAND WARRANTIES ONGOING SUPPORT
2.1. DecisionWise shall provide all Services in accordance with the schedule agreed
upon in the applicable Service Order.
2.2. DecisionWise shall provide personnel who have the appropriate technical skills,
training, education, and experience to perform the Services. DecisionWise
reserves the right to use third -party providers in order to deliver portions of the
Services. DecisionWise warrants that it will cause any such third -parties to be
bound by the confidentiality provisions of these General Terms and Conditions and
that the quality of any Services provided by third -parties will meet or exceed the
standards set forth in these General Terms and Conditions and the Service Order.
2.3. DecisionWise provides a limited warranty that it will render the Services in a
workmanlike manner and that the Services will generally fulfill the material
purposes for which they are intended under the Service Order.
2.4. DecisionWise shall not be responsible for failures or errors that are attributable to
the Client.
2.5. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 2, THE SERVICES ARE
PROVIDED "AS IS", AND "AS AVAILABLE" AND TO THE FULLEST EXTENT PERMITTED BY
LAW, DECISIONWISE EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES,
CONDITIONS AND OTHER TERMS, WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTIES,
CONDITIONS OR OTHER TERMS AS TO MERCHANTABILITY, SATISFACTORY QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY, CONDITION OR
OTHER TERM ARISING FROM A COURSE OF DEALING OR COURSE OF
PERFORMANCE. NO ORAL OR WRITTEN INFORMATION PROVIDED BY DECISIONWISE
OR ITS EMPLOYEES OR REPRESENTATIVES WILL CREATE ANY WARRANTY, AND THIS
WARRANTY DISCLAIMER SUPERSEDES ANY SUCH INFORMATION. CLIENT
ACKNOWLEDGES AND AGREES IT HAS SELECTED THE SERVICES AND IS SOLELY
RESPONSIBLE FOR ANY RESULTS OBTAINED FROM THE SERVICES AFTER DELIVERY BY
DECISIONWISE AND HAS NOT AND SHALL NOT RELY UPON ANY REPRESENTATIONS
OR WARRANTIES AS TO THE SUITABILITY OR UTILITY OF THE SERVICES TO MEET CLIENT'S
NEEDS OR REQUIREMENTS. DECISIONWISE DOES NOT REPRESENT OR WARRANTTHAT
THE SERVICES SHALL BE UNINTERRUPTED OR ERROR -FREE. NOTHING IN THIS SECTION
2 LIMITS OR EXCLUDES DECISIONWISE'S LIABILITY FOR FRAUDULENT
MISREPRESENTATION.
2.6. Except in instances where DecisionWise has failed to provide to Client the Services
and related information as promised in the Service Order or except as agreed
upon in the Service Order, DecisionWise shall have no obligation to provide
ongoing customer support for the Engagement.
3. PAYMENT
3.1. Client shall pay DecisionWise for the Services at the times and in the manner set
forth in the applicable Service Order.
o 815 West 450 South, Springville, UT 84663 USA// p +1,801,515.6500// w decision-wise.corn
Agreement No. 5422
DECISION ISSE
LEADERSHIP INTELLIGENCE•
TERM AND TERMINATION
4.1. DecisionWise may terminate an Engagement immediately upon written notice to
Client in the event that one or more of the following occur:
(i) Client becomes insolvent, ceases to pay its debts in the ordinary course of
business, is unable to pay its debts as they become due, or makes an
assignment for the benefit of creditors;
(ii) A trustee or receiver is appointed for any or all of Client's assets;
(iii) Any bankruptcy or insolvency proceeding under any federal or state
bankruptcy or insolvency code, or similar law, whether voluntary or
involuntary, is commenced by or against Client;
(iv) Client is dissolved or liquidated;
(v) The Service Order is terminated.
4.2. The Client may terminate their Engagement with DecisionWise as outlined in the
Service Order, subject to the cure provisions of Section 1.4 above.
4.3. DecisionWise may terminate its Engagement with the Client without cause upon
providing 60 -days advance written notice and provided that DecisionWise may
reasonably terminate the Engagement without material harm or prejudice to the
Client.
F'ORC f MAJf°,.URE (.ir jpcj & lit'y of_P rforpJ price
5.1. If the performance of an Engagement, or any obligation except the making of
payments, is prevented, restricted, or interfered with by reason of fire, flood,
earthquake, explosion, or other casualty or accident; strikes or labor disputes;
inability to procure or obtain delivery of parts, supplies, or power; war, terrorist act,
cyber -attack, or other violence; any law, order, proclamation, regulation,
ordinance, demand or requirement of any governmental agency; or any act or
condition whatsoever beyond the reasonable control of the affected party; the
party so affected, upon giving proper notice to the other party, shall be excused
from such performance to the extent of such prevention, restriction, or
interference.
PRS 1f C;rfl1VO
.wN
6.1. "Confidential Information" means all documents, software and documentation,
reports, financial or other data, records, forms, tools, products, services,
methodologies, present and future research, technical knowledge, marketing
plans, customer lists, proprietary information, trade secrets, and other materials
obtained by DecisionWise and Client from each other in the course of performing
any Services, whether tangible or intangible and whether or not stored, compiled,
or memorialized physically, electronically, graphically, in writing, or by any means
now known or later invented. Confidential Information shall include all information
intended to be confidential as described in Section 9 below and all information
deemed covered by the Privacy Shield Principles (y,f,fM,,i y Vmrw ,.cl l y_),.
6.2. Confidential Information includes without limitation records and information
(i) that has been marked as proprietary or confidential;
(ii) whose confidential nature has been made known by Client or DecisionWise; or
(iii) that due to its character and nature, a reasonable person under like
circumstances would treat as confidential.
0 815 West 450 South, Springville, UT 84663 USA // p +1.801,515, 6500 H w decision-wise.com
Agreement No. 5422
DECISIONWISE
LEADERSHIP INTELLIGENCE•
6.3. Notwithstanding the foregoing, Confidential Information does not include
information which:
(i) is already known to the recipient at the time of disclosure;
(ii) is or becomes publicly known through no wrongful act or failure of recipient;
(iii) is independently developed by recipient without benefit of the other party's
Confidential Information; or
(iv) is received from a third party which is not under and does not thereby breach
an obligation of confidentiality.
6.4. Each party agrees to protect the other's Confidential Information at all times and
in the same manner as each protects the confidentiality of its own proprietary and
confidential materials, but in no event with less than a reasonable standard of
care.
6.5. Neither party shall use or disclose to any person, firm or entity any Confidential
Information of the other party without such other party's express, prior written
permission; provided, however, that either party may disclose Confidential
Information to the extent that it is required to be disclosed pursuant to a statutory
or regulatory provision or court order so long as it provides prior notice of such
disclosure.
6.6. Aggregate data (i.e., assessment scores) may be maintained and used by
DecisionWise for purposes of academic and professional research and norming.
When used for these purposes, all data identifying specific individuals or
organizations will be removed.
6.7. It is strongly preferred that the least amount demographic information necessary
to perform the data analysis be delivered to DecisionWise. DecisionWise may
receive the following information from a Client related to Client's employees or
contractors ("Standard Demographic Information"):
6.7.l.Employee Name
6.7.2.Employee Date of Hire
6.7.3.Employee Date of Birth
6.7.4.Employee Compensation
6.7.5.Employee Department and Classification
6.7.6.Employee Contact Information for the Client, such as work e-mail, work
phone numbers, etc.
6.8. Client shall not provide DecisionWise with any information other than the Standard
Demographic Information without DecisionWise's express written consent.
DecisionWise will not be responsible for any damages caused by Client's
disclosure to DecisionWise of information outside the Standard Demographic
Information and where DecisionWise has not expressly consented to receive such
non-standard information. UNDER NO CIRCUMSTANCE SHALL CLIENT EVER DELIVER
TO DECISIONWISE ANY SOCIAL SECURITY NUMBERS, GOVERNMENT IDENTIFICATION
NUMBERS (OR OTHER SIMILAR INFORMATION), CREDIT CARD INFORMATION,
HEALTHCARE INFORMATION, PROTECTED HEALTH INFORMATION UNDER HIPAA,
OTHER PERSONAL FINANCIAL INFORMATION, EMPLOYEE/CONTRACTOR FAMILY
INFORMATION, OR ANY DATA OR INFORMATION WHERE IT IS UNLAWFUL FOR
DECISIONWISE OR CLIENT TO POSSESS SUCH INFORMATION/DATA. NO DATA OR
INFORMATION RELATED TO A MINOR SHALL EVER BE DELIVERED TO DECISIONWISE.
o 315 West 450 South, Springville, UT 84663 USA// p +1.801.515.6500//w decision-wise.com
Agreement No. 5422
DECISION
LEADERSHIP INTELLIGENCE-
6.9. Client represents and warrants that DecisionWise shall have the right to contact
anyone for which Client has provided the Standard Demographic Data for the
sole purpose of delivery of the Services.
N0JA lNY R ASESM NTS BLOWING
7.1. Client acknowledges that DecisionWise may administer various assessments,
including psychological or psychometric assessments, in connection with the
Services. DecisionWise will not be responsible for damages cause by the actions
of employees, contractors, or third parties where such actions are motivated, in
part or in whole, by feedback and/or emotions that are caused by the
assessments administered by DecisionWise.
7.2. Client further acknowledges that such assessments, including psychological or
psychometric assessments, should not be used as the sole source of information
from which to make strategic, administrative, personnel, or other decisions.
DecisionWise will not be responsible for actions taken by the Client which are
based on the results or information taken from these assessments.
7.3. During the rendering of Services to the Client, DecisionWise may ask the Client's
employees to provide comments. These employees may choose to disclose
certain information to DecisionWise that should be reported directly to the Client's
human resources function. For example, an employee may disclose details
related to an instance of sexual harassment or they may report facts, which if true,
constitute illegal conduct by the Client and the disclosure of such information may
be protected by whistleblowing laws (such information being referred to generally
as "HR Feedback").
7.4. In connection with any HR Feedback, Client acknowledges the
following: (i) DecisionWise may or may not review the comments submitted
during a survey/assessment and DecisionWise is under no obligation to review any
of the comments it receives in order to discover HR Feedback; (ii) should
DecisionWise come across HR Feedback within a comment, DecisionWise will use
reasonable efforts to inform the Client of the HR Feedback but will maintain the
confidentiality of the person providing the HR Feedback; (iii) while DecisionWise
will use reasonable efforts to provide the Client with the HR Feedback,
notwithstanding anything to the contrary in these General Terms and Conditions
or in the Service Order, DecisionWise shall not be liable to the Client for any
damages suffered by the Client as a result of DecisionWise's failure to provide HR
Feedback to the Client even if DecisionWise has been engaged to review the
comments; and (iv) should it become necessary to break confidentiality,
DecisionWise will do so but only in accordance with the standards set forth in these
General Terms and Conditions.
8. L,IIMITATIONCE'
LI_ABIILTYLINDEMNI,FICATIO_N
8.1. DECISIONWISE SHALL NOT, TO THE FULLEST EXTENT ALLOWED BY LAW AND UNDER
ANY CIRCUMSTANCES, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OFTHE
CLAIM, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES HOWSOEVER CHARACTERIZED, ARISING FROM
OR IN ANY MANNER RELATED TO THE ENGAGEMENT OR THE SUBJECT MATTER
HEREOF, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, WASTED
ADMINISTRATIVE TIME, COST OF PROCURING OR MIGRATING TO SUBSTITUTE
o 815 West 450 South, Springville, UT 84663 USA // p +1.801,515.6500,// w decision -wise.com
10
Agreement No. 5422
�A'
DEI'SI ISE
LEADERSHIP INTELLIGENCE•
SERVICES, OR DAMAGES RESULTING FROM MISTAKES, OMISSIONS, INTERRUPTIONS,
DESTRUCTION, LOSS OR DELETION OF DATA, OR DELAYS IN OPERATION OR
TRANSMISSION.
8.2. IN NO EVENT, SHALL THE AGGREGATE LIABILITY OF DECISIONWISE TO CLIENT EXCEED
125% OF THE TOTAL AMOUNT PAID TO DECISIONWISE BY CLIENT DURING THE
PRECEDING TWELVE MONTHS.
8.3. SUBJECT TO THE LIMITS DESCRIBED ABOVE, A PARTY SHALL INDEMNIFY THE OTHER
PARTY FOR DAMAGES CLAIMED BY A THIRD PARTY AS A RESULT OF A PARTY'S
WILLFUL NEGLIGENCE OR A PARTY'S BREACH OF THIS ENGAGEMENT.
9. PRIVACY POUY,DII_ C LOSUR _I,1.1AFmlwfiREAK,S C.ONFI_D_E__NTI_ALITY
9.1. DecisionWise collects basic contact information which includes Standard
Demographic Data provided by the Client, along with user -created logins,
passwords, emails for DecisionWise's own systems and any feedback -provider
logins, passwords, and emails for DecisionWise's own systems. This information is
used to register participants in connection with an Engagement and is treated as
Confidential Information by DecisionWise. DecisionWise may use this information
to contact individual participants and to send notifications and reminders to
facilitate the provision of the Services.
9.2. Visitors to DecisionWise's corporate website are not required to disclose any
personal information. Browser -provided information, Internet Protocol Address,
browser type, browser language etc. is collected in aggregate and is not used to
identify individual users. This information is used solely to improve our services.
DecisionWise may, at times, collect information from our website such as requests
for more information, newsletter registrations, and research/marketing surveys. This
may include name, title, company, email, phone number and other information.
DecisionWise will not sell, share, or rent this information to others in ways different
from what is disclosed in this statement.
9.3. Client acknowledges and agrees that all survey responses collected by
DecisionWise in connection with an Engagement are to be anonymous and any
personally identifiable information shall be held confidential by DecisionWise and
shall not be given to the Client without the express written consent of the individual
at question unless such information is needed:
9.3.1.To prevent the commission of a crime.
9.3.2.Because the material health or safety of an individual is at stake.
9.3.3.Where required by law.
Any release of personally identifiable information shall also require written approval
by an officer of DecisionWise.
9.4. While DecisionWise will not disclose identities as describe above, due to the nature
of a particular survey, it may be possible for a person reviewing survey responses
to surmise the identity of the person who submitted the response(s). This would be
the case with a 360 -degree feedback survey where, by design, an individual's
supervisor is asked to provide feedback. Thus, DecisionWise will do what it is
commercially reasonable to maintain confidentiality, but it cannot provide any
assurance or guarantee that total confidentiality will exist in all circumstances.
9.5. Survey responses provided to DecisionWise are stored on secure servers in a
locked secure data environment. DecisionWise has certified as compliant with
the EU — U.S. Privacy Shield Framework as set forth by the U.S. Department of
o 815 West 450 South, Springville, UT 84663 USA// p +1,801,515,6500 // w decision-wise,com
11
Agreement No. 5422
DECISIONWISE
LEADERSHIP INTELLIGENCE•
Commerce (see �� t Iri���,��f X71 �m�t tqr>::. for our listing). Access to Confidential
Information is limited to authorized personnel. DecisionWise shall take reasonable
measures to prevent unauthorized access to or loss of Confidential Information.
10. OWNERSHIP OF DATA AND MATERIALS -REI A111_D K) SE R�VI�_ S� DOCUMENTRf i N'I NON
10.1. Client acknowledges and agrees that DecisionWise has prior to
DecisionWise's Engagement by Client, and will during the course of DecisionWise's
Engagement by Client, perform work that resulted in or will result in the creation of
designs, products, or materials that constitute the intellectual property of
DecisionWise.
10.2. The parties agree that all ideas know-how, processes, information,
documents, designs, surveys, reports, inventions, copyrightable material and other
tangible and intangible materials authorized, prepared, created, made,
delivered, conceived or reduced to practice, in whole or part, by DecisionWise
(the "IP Works") prior to or in the course of providing the Services, including without
limitation, the Deliverables, computer programs, computer systems, data report
formats and documentation (collectively, the "Works") are and will be recognized
for all purposes as the sole and exclusive property of DecisionWise and shall not
be considered "work for hire" as defined by 17 U.S.C. § 101 and §201. DecisionWise
hereby grants to Client a non-exclusive, worldwide, fully -paid, perpetual license
to any unique IP Works that are created in the course of an Engagement and are
specific to the Engagement. DecisionWise shall have the right to use and retain
any data received from Client for benchmarking and trending purposes.
10.3. DecisionWise shall be considered the author and/or creator of the Works
and shall own all right, title, and interest in and to the copyright to the Works and
in any and all of its derivative works. Client acknowledges and agrees that the
Works may not be published or distributed to the general public without the prior
written consent of and additional consideration payable to, in each case,
DecisionWise.
10.4. DecisionWise will retain all survey data for an indefinite period of time.
DecisionWise will keep all other materials provided by the client for a period of 4
years from the date the materials were provided to DecisionWise by the clients.
After that, any such materials may be destroyed according to DecisionWise's
standard data and document retention policies.
11. NON -EXCLUSIVITY; NON -SOLICITATION
.......................-......- -
1 1.l . During the term of this Agreement, client may engage the services of any
individual or entity that competes with DecisionWise or offers services similar to
those offered by DecisionWise, and any such engagement shall not be
considered a breach of this Agreement. During the term of this Agreement,
DecisionWise may provide the services described in any Service Order to any
individual or entity that it desires, including but not limited to any which
competes with the client, and any such Engagement shall not be considered a
breach of this Agreement.
11.2. During the term of the Engagement and for a period of two (2) years
thereafter, DecisionWise will not solicit any employee or contractor of the Client
to terminate or alter its relationship with the Client.
o 815 West 450 South, Springville, UT 84663 USA // p +1.801,515.6500 // w decision-wise,com
12
DECISIONWISE
LEADERSHIP INTELLIGENCE•
12, GENERAL
Agreement No. 5422
12.1. The Engagement shall be construed and enforced under the laws of State
of Utah. All legal proceedings that may be brought between the parties in
connection with the Engagement shall be brought only in the state courts
located within Utah County, Utah or the federal courts located within the State
of Utah and each party hereby irrevocably consents to the jurisdiction of such
courts.
12.2. No modifications or amendments to the Engagement or any waiver of
any terms or conditions hereof shall be effective unless put in writing and signed
by both parties.
12.3. Client recognizes that assessments, such as multi -rater assessments, may
involve the disclosure of personal information or performance data. While
DecisionWise will take reasonable effort to ensure those participating in these
assessments and coaching are provided with professional survey and consulting
services, DecisionWise fakes no responsibility for actions (legal and otherwise) on
the part of the employee(s) or Client resulting from the information contained
within the assessment or consulting sessions.
12.4. In any action to enforce the terms of the Engagement, the substantially
prevailing party shall be entitled to recover from the non -substantially prevailing
party its reasonable attorneys' fees, courts costs, litigation expenses, deposition
fees and costs, reasonable travel costs, court filing fees, and other similar
expenses, including all such expenses incurred in connection with any appeals.
12.5. These General Terms and Conditions and the corresponding Service Order
may not be assigned by the Client without the express written consent of
DecisionWise.
Client Signature DecisionWise Signature
Date: Date:
o 815 West 450 South, Springville, UT 84663 USA// p +1.801.515.6500H w decision -wise corn
13