- CultureIQ owns and operates the CultureIQ® service, a cloud based service that allows companies to identify and align internal culture initiatives to improve employee satisfaction and engagement (the “Service”).
- Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service. Please read them carefully before using the Services.
The Parties agree as follows:
- License. Subject to the terms of this Agreement, CultureIQ grants to you a personal, non-exclusive, non-transferable internal license to use the Service, the software that supports it (the “Software”), and any provided documentation (the “Documentation”) during the Term. The Software is delivered to you via the Internet as Software as a Service (“SaaS”), and all Software upgrades are delivered to you without any new installation of Software.
- License Conditions. Except as otherwise expressly permitted in this Agreement, you shall not itself, or through any parent, subsidiary, affiliate, agent or other third party: (a) sell, lease, license, distribute, sublicense or otherwise transfer in whole or in part, the Software; (b) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code from the Software; (c) allow access or permit use of the Software or the Service by any third party except authorized third-party contractors solely to provide services to you, provided that you shall be liable for all acts and omissions of such authorized third-party contractors; (d) provide username/password information to anyone not authorized to use the Service under this Agreement; (e) modify or create derivative works based upon the Software; or h) change any proprietary rights notices which appear in the Software.
- Your Obligations. You shall be required to provide all connectivity and hardware necessary for your users to access the Service.
2. CultureIQ Product Support Services.
CultureIQ maintains a customer support team in New York and New Jersey capable of receiving telephone and email reports of software irregularities during normal business hours Monday through Friday, 9am to 5.30pm EST. You may report CultureIQ software or operator problems and seek assistance in the use of the CultureIQ software. CultureIQ will maintain a product-trained and knowledgeable staff capable of rendering the services set forth in this Agreement. CultureIQ will use all reasonable diligence to correct verifiable and reproducible errors when reported. The CultureIQ Service Level Objective for the Production SaaS Environment, including, but not limited to, access to CultureIQ software programs and SaaS Services and Responsibilities, is to make these services available a minimum of ninety nine and one half (99.5%) percent of the time as measured over any three consecutive months. If CultureIQ fails to meet the levels of service described in this Service Level paragraph in any calendar month period, it will refund to you a portion of the fee as is indicated below. Any refund will be with respect to the total fees paid by you to CultureIQ during that month. In the event the Application is unavailable for 1% or more of the time (other than for unavailability for maintenance scheduled in advance in writing or for internet connectivity failures outside of CultureIQ’s control), CultureIQ will, as its sole obligation and you’s sole and exclusive remedy, refund you the same percentage of total fees for that respective month. In no event will scheduled maintenance be deemed a period of unavailability entitling you to a service refund provided that CultureIQ has provided you with advance written notice of such scheduled maintenance.
You will license the Service for a period referenced in the Order Form (together with any renewal terms, the “Term”) subject to the payment of the fees set forth in Section 4. Thereafter, this Agreement shall renew for additional one-year periods, subject to the right of either party to terminate upon the provision of written notice to the non-terminating party at least 30 days prior to the end of the then current term. Service may cease to function and any you data stored by CultureIQ in connection with the Service may be deleted after the licensing term. You shall retain ownership of all materials and information provided by you to CultureIQ and all Intellectual Property Rights thereto, and you may download all data prior to the completion of the Term. No ownership rights in such materials, data and information are transferred to CultureIQ. Note that the Software includes a contributory database feature that allows companies that license the Software to anonymously benchmark CultureIQ’s culture questions to all aggregated anonymous customer responses for comparative purposes. CultureIQ does not attribute the aggregated results to any customer or you, and does not have access to or store any personal information of any your employees when delivering this benchmark feature.
You shall pay CultureIQ in the amounts set forth in the Order Form. Payment is due upon receipt of the relevant invoice with the invoices sent to you at the beginning of each annual licensing period.
CultureIQ, and as applicable its licensors, is(are), and shall remain, the owner(s) of and holder(s) of title to the intellectual property rights in and to the Service, the Software and the Documentation. Except as expressly provided in Section 1, nothing contained in this Agreement or otherwise shall be construed to grant to you any right, title, license or other interest in, to or under any CultureIQ intellectual property.
CultureIQ represents and warrants as follows to you:
- In providing the Service to you, CultureIQ does not obtain, have access to or store any personal information of any of your employees.
- Employee comments and other information provided through the Service are not linked in any manner to the individuals providing such comments and information, and CultureIQ does not track the IP address from which any such comments and information are sent.
The term “Confidential Information” shall mean any and all information or proprietary materials not generally known and which has been or is hereafter disclosed or made available by either party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection this Agreement, including, without limitation all employee information submitted to the Service and the results of any analytics performed on such information. For a period of five (5) years from the date of disclosure of the applicable Confidential Information, you and CultureIQ will each (i) hold the Confidential Information of the other in trust and confidence and avoid the disclosure or release thereof to any other person or entity by using the same degree of care as it uses to avoid unauthorized use, disclosure, or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care, and (ii) not use the Confidential Information of the other party for any purpose whatsoever except as expressly contemplated under this Agreement; provided that, to the extent the Confidential Information constitutes a trade secret, the parties agree to protect such information for so long as it qualifies as a trade secret under applicable law. Each party will disclose the Confidential Information of the other only to those of its employees and contractors having a need to know such Confidential Information and will take all reasonable precautions to ensure that such employees and contractors comply with the provisions of this Section. The obligations of either party under this Section will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party without regard to the Confidential Information of the other party. In addition, the Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it; provided that the receiving party gives the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or other appropriate remedy, discloses only such Confidential Information as is required by the governmental entity, and uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information disclosed. Notwithstanding the foregoing, CultureIQ may disclose the existence of this Agreement and its terms to investors and potential investors in CultureIQ, provided the investors are obligated to maintain the confidentiality of same.
CultureIQ may indicate on client lists, referral lists or business presentations that you are a customer of CultureIQ. CultureIQ may include your trademark or service mark on same client lists, referral lists or business presentations.
Neither party may hire, or directly or indirectly solicit or employ, any employee of the other party for twelve (12) months after the termination of this Agreement; provided, however, that nothing contained herein will prevent a party from hiring any such employee who responds to a general hiring program conducted in the ordinary course of business.
10. Warranty Disclaimer.
EXCEPT AS SET FORTH IN SECTION 5, THE SERVICE, THE SOFTWARE, AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND CULTUREIQ AND ITS LICENSORS MAKE NO WARRANTIES WHETHER EXPRESSED, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION, AND ANY DELIVERABLES, MATERIALS OR OTHER SERVICES FURNISHED OR PROVIDED TO YOU UNDER THIS AGREEMENT (COLLECTIVELY, THE “PROVIDED MATERIALS”). TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CULTUREIQ AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING AND USAGE OF TRADE WITH RESPECT TO THE PROVIDED MATERIALS, AND WITH RESPECT TO THE USE OF THE FOREGOING. FURTHER, CULTUREIQ DOES NOT WARRANT RESULTS OF USE OR THAT THE SOFTWARE WILL BE ERROR FREE OR THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED.
11. Limitation of Liability.
IN NO EVENT SHALL CULTUREIQ OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT DAMAGES UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE OR ANY OTHER OBLIGATION UNDER THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF CULTUREIQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CULTUREIQ’S TOTAL AGGREGATE LIABILITY, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STATUTE OR OTHERWISE, AND YOUR SOLE AND EXCLUSIVE REMEDY, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY CULTUREIQ IN AN AMOUNT NOT TO EXCEED THE AMOUNT OF YOUR PAYMENTS TO CULTUREIQ DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. YOU AGREE THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
12. Indemnification. CultureIQ hereby represents and warrants to you that the Software and Services provided will not violate the patent, copyright, or other proprietary rights of any third party, and that CultureIQ will defend, indemnify and hold you harmless from any claim of copyright, patent or similar infringement provided you notify CultureIQ in writing immediately upon notice of such claim and cooperates fully in the defense of such claim. CultureIQ shall have full and exclusive control of any such defense and settlement of the claim.
Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld, and any such assignment in violation of this Section shall be void, except that (i) either party may assign this Agreement or rights granted hereunder to an Affiliate without the consent of the other party and (ii) the transfer of this Agreement or rights granted hereunder to a successor entity in the event of a merger, corporate reorganization, or acquisition shall not constitute an assignment for purposes of this Section. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and any supplemental terms on any purchase order or order acknowledgement are hereby rejected. This Agreement supersedes all prior or contemporaneous discussions, proposals and agreements between the parties relating to the subject matter hereof. No amendment, modification or waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable. No waiver of rights by either party may be implied from any actions or failures to enforce rights under this Agreement. Neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control (excluding payment of monies due). Unless otherwise specifically stated, the terms of this Agreement are intended to be and are solely for the benefit of CultureIQ and you and do not create any right in favor of any third party. This Agreement will be governed by the laws of the State of New Jersey, without reference to the principles of conflicts of law. Any litigation related to this Agreement shall be brought in the state or federal courts located in New Jersey, and only in those courts and each party irrevocably waives any objections to such venue.