Valid from June 1st, 2018.
MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (“AGREEMENT“) GOVERNS YOUR USE OF CERTAIN SERVICES (AS DEFINED BELOW) THAT ARE ORDERED THROUGH AN ORDER AND PROVIDED BY CULTUREIQ, INC. (“CULTUREIQ”). BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, CLIENT AND CUSTOMER AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, CUSTOMER SHALL NOT USE THE SERVICES.
1.1 Affiliate. Any entity that, directly or indirectly, Controls or is under common Control with another entity or in which such other entity has Control, and the term “Control” as used in this Section 1.1 whether used as a noun or a verb, means the possession, directly or indirectly, of the power to affirmatively direct or affirmatively cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.
1.2 Benchmarking Data. Aggregated data received, collected, analyzed and maintained by CultureIQ and its Affiliates to improve the Platform and Services. Benchmarking Data may be derived from public information, assessment responses, interviews, survey data and best practices information that CultureIQ and/or its Affiliates receive from their customers/clients, including Customer.
1.3 CultureIQ Intellectual Property Rights. All Intellectual Property Rights (i) in and to the CultureIQ Property and the Services, or (ii) otherwise owned by or licensed to CultureIQ or its Affiliates by their respective licensors.
1.4 CultureIQ Property. All of the following, without limitation, directly or indirectly owned by CultureIQ or its Affiliates, whether pre-existing, or independently created: the Platform and Templates and all other materials, websites, software, tools, virtual learning content, research, publications, training manuals, report formats, technical reports, research data, assessment or survey content and supporting materials, technology and source code used to support the assessment or survey process, all accompanying materials, all portions, subsets or derivatives thereof, any improvements, modifications, upgrades or other changes thereto; and any and all derivative works of same created by CultureIQ or its Affiliates.
1.5 Customer Property. Any data, information, or other material provided by or on behalf of Customer directly to CultureIQ or indirectly through the Service. Customer Property includes Customized Deliverables; provided, however, Customer Property will never be deemed to include any CultureIQ Property or CultureIQ Intellectual Property Rights.
1.6 Confidential Information. In connection with this Agreement or any Order, all information, in whatever form, furnished by the Disclosing Party to the Receiving Party orally or in writing and identified as confidential, proprietary and/or trade secret information at the time of disclosure including, without limitation, a Disclosing Party’s confidential business or technical information; data privacy, IT security and corporate policies and practices; financial information or data; marketing techniques and materials; business plans and strategies; business operation and systems; pricing policies; information concerning employees, customers, and/or vendors; trade secrets; discoveries; improvements; research; development; know-how; designs; products and services; opportunities; methods and procedures; equipment, physical materials and manufacturing processes; non-public CultureIQ Property and any derivatives, portions or copies thereof. For the avoidance of doubt, the definition of Confidential Information shall include, without limitation, Confidential Information of each Party’s Affiliates that may be disclosed in connection with this Agreement or any Order.
1.7 Disclosing Party. The Party, including its Affiliates, that is disclosing (directly or indirectly) Confidential Information to the Receiving Party.
1.8 Intellectual Property Rights. All patents (including all reissues, divisions, continuations, and extensions thereof) and patent applications, trade names, trademarks, service marks, logos, trade dress, copyrights, trade secrets, mask works, rights in technology, know-how, rights in content (including performance and synchronization rights), unregistered design or other intellectual property rights that are in each case protected under the laws of any governmental authority having jurisdiction whether or not registered and all application, renewals or extensions.
1.9 Order. Any document, including without limitation an order form, statement of work, or other instrument agreed by both parties to order Services. Any such Order must expressly state that the Services are being provided subject to this Agreement.
1.10 Personal Data. Any data or information relating to an identified or, when used in combination with other information, identifiable individual.
1.11 Platform. CultureIQ’s web-based employee feedback platform used to author and deploy surveys to collect employee feedback, analyze the aggregated results, share results via reporting, and record action plans.
1.12 Professional Services. All implementation, training, configuration, data migration, consulting and professional services performed by or on behalf of CultureIQ for Customer pursuant to this Agreement.
1.13 Receiving Party. The Party, including its Affiliates, that is receiving Confidential Information from the Disclosing Party.
1.14 Services. The specific services described in an Order subject to this Agreement subject to this Agreement, which may include providing access to the Platform and/or providing Professional Services.
1.15 Templates. Documents, tools, presentations or templates provided by CultureIQ through the Platform or other electronic means.
1.16 Term. The term of this Agreement as defined in Article 8.
1.17 Third Party. Any person or entity other than Customer, CultureIQ or a CultureIQ Affiliate.
2.1 Services. During the Term of this Agreement, Customer may purchase Services, as mutually agreed by the Parties from time to time pursuant to one or more Orders. Each Order is subject to this Agreement and include: (i) the Services to be performed; (ii) any CultureIQ Property to be provided to Customer; (iv) the fees and payment schedule with respect to such Services; and (v) any additional provisions.
2.2 Fees. Customer shall pay all fees (“Fees”) specified in an Order. Unless otherwise stated in an Order, all Fees are quoted and payable in United States . All Fees are based on Services ordered and not actual usage. With the exception of termination for Cause by Customer pursuant to Article 8, all Fees are non-cancellable and non-refundable.
2.3 Invoicing. Unless otherwise stated in an Order, immediately upon execution of an Order, CultureIQ will deliver an invoice to Customer for the full amount of the Fees and such invoice shall be due and payable by Customer within thirty (30) days of receipt by Customer. If any portion of any invoice is disputed in good faith, Customer shall notify CultureIQ in writing within ten (10) business days and shall set forth the basis or reason for the dispute in reasonable detail, Customer will pay the undisputed amounts as set forth in the preceding sentence, and the Parties will use good faith efforts to reconcile the disputed amount as soon as possible. Late payments will bear interest at a rate of 1.5% per month, or if lower, the maximum rate allowed by law.
2.4 Taxes. All fees are exclusive of taxes, levies, and duties imposed by any governmental or taxing authorities. Customer shall pay all sales, use, duties, and other taxes including, without limitation, Value Added Taxes (VAT) or Goods and Services Taxes (GST) that are lawfully imposed (and for which no exemption is available) and if CultureIQ pays any such taxes on behalf of Customer, then Customer shall reimburse CultureIQ for such payments. CultureIQ shall pay all taxes that are based on, or measured by, CultureIQ’s net income. If Customer is required to withhold and pay any withholding tax on any amount payable to CultureIQ under this Agreement, then Customer will deliver to CultureIQ the original tax receipt or other proof of payment. Upon request, each Party shall provide reasonable support and shall execute and deliver any documents that the other Party deems necessary or desirable in connection with any exemption or reduction of, or the contestation of or the defense against, any taxes.
2.5 Travel Expenses. CultureIQ agrees that to the extent any travel expenses will be incurred related to the Services provided hereunder; CultureIQ shall comply with its Global Travel Meetings and Expense Reimbursement Policy unless otherwise agreed to by the parties.
- Intellectual Property
3.1 Customer Property. Customer shall retain exclusive ownership rights in and to all Customer Property provided to CultureIQ under this Agreement. Subject to CultureIQ’s rights in CultureIQ Property and obligations of confidentiality, Customer grants CultureIQ a limited, non-exclusive, royalty-free, irrevocable, world-wide license to use Customer Property as necessary to provide, improve, monitor and develop the Services for the duration of the Agreement.
3.2 CultureIQ Property. Customer acknowledges and agrees that CultureIQ and its Affiliates, as the case may be, have and own, and shall have and own, all rights, title and interest in and to the CultureIQ Property and CultureIQ Intellectual Property Rights. Customer acknowledges that its use of the CultureIQ Property and CultureIQ Intellectual Property Rights will not vest in the Customer any right, title or interest in or to the CultureIQ Property or CultureIQ Intellectual Property Rights other than the limited license rights granted under this Agreement or an Order and all Intellectual Property Rights arising from such uses will inure to the benefit of CultureIQ and its Affiliates. The Customer warrants and represents that: it will not at any time (a) challenge (i) CultureIQ’s and its Affiliates’, rights, title or interests in and to the CultureIQ Property or the CultureIQ Intellectual Property Rights or (ii) the validity of any CultureIQ Intellectual Property Rights; or (b) take any action or engage in any inaction which would impair or tend to impair the CultureIQ Intellectual Property Rights.
3.3 Customized Deliverables. CultureIQ or its Affiliates may create and/or provide deliverables to Customer pursuant to an Order for Professional Services (“Customized Deliverables”). Upon full and final payment of any Fees in such Order, Customer will own Customized Deliverables, subject to the following: (i) the Customer may use the Customized Deliverables solely for its internal business use; ii) CultureIQ shall retain exclusive ownership of all rights, title and interest in and to all CultureIQ Property and CultureIQ Intellectual Property Rights incorporated in the Customized Deliverables, and (iii) the Customized Deliverables shall be used for Customer’s internal business use only.
3.4 Knowledge Capital. CultureIQ shall retain all right, title and interest in all of CultureIQ’s ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes, irrespective of whether possessed by CultureIQ prior to, or acquired, developed, or refined by CultureIQ (either independently or in concert with Customer but excluding Customer’s proprietary ideas, know-how, approaches, methodologies, concepts, skills, tools, techniques, expressions, and processes identified in writing in advance to CultureIQ) during the course of its performance under this Agreement. It is agreed and understood that CultureIQ is in the business of providing services to third parties which are or may be substantially similar to the Customized Deliverables being developed for Customer. It is not the intent of this Agreement to prevent CultureIQ from pursuing its stated business by independently creating such original but similar works for the benefit of third parties.
3.5 License to CultureIQ Property. CultureIQ grants to Customer a perpetual, non-exclusive, royalty-free, worldwide, non-transferable and non-assignable license to use the CultureIQ Property incorporated into any Customized Deliverables to the extent necessary to allow the Customer to enjoy the benefit of the Customized Deliverables.
If an Order includes a subscription to the Platform, then CultureIQ further grants to Customer a non-exclusive, royalty-free, worldwide, non-transferable and non-assignable license to use the Templates provided by CultureIQ during the term of the applicable Order for Customer’s internal business purposes.
3.6 Customer Responsibilities.
(a) Restrictions. Neither Customer nor any individual user may sublicense, sell, transfer, assign to, display or otherwise make available the CultureIQ Property or Services to any third party (including (i) a Customer service provider, independent contractor, consultant or subcontractor, or any (ii) other Customer divisions or Customer Affiliates to which the license has not been extended under the Order) without CultureIQ’s written permission, and any attempted sublicense, sale, transfer or assignment shall be void
(b) User Compliance. Customer is responsible for the compliance of those individuals allowed to access the CultureIQ Property or Services under this Agreement or Order. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of CultureIQ Property, and notify CultureIQ promptly of any such unauthorized access to or use of the Services, and comply with all applicable local, state, federal, and foreign laws in using the CultureIQ Property
(c) Feedback. Customer acknowledges and agrees that any suggestions, enhancement requests, recommendations, or other feedback (collectively, “Feedback”) provided by Customer or any of its users to CultureIQ may be incorporated by CultureIQ into the Services and CultureIQ Property, and all such Feedback shall be considered CultureIQ Property. Customer agrees to assign, and hereby assigns to CultureIQ all right, title and interest throughout the world in and to all such Intellectual Property Rights, and shall assist CultureIQ, at no cost to Customer, to obtain and maintain for CultureIQ such Intellectual Property Rights. Customer shall sign or, as applicable, cause its users and related persons to sign such instruments as CultureIQ deems reasonably necessary for CultureIQ to obtain and maintain such Intellectual Property Rights.
(d) Benchmarking. Notwithstanding anything in this Agreement to the contrary, Customer grants CultureIQ and its Affiliates a perpetual, royalty-free license to use Benchmarking Data on condition that (1) CultureIQ aggregates and presents the Benchmarking Data in anonymous form; and (2) any disclosure by CultureIQ or its Affiliates of such Benchmarking Data to third parties does not include (directly or by inference) any information identifying Customer or any identifiable individual as the source of such data.
(e) License to Customer Property. If and only if Customer discloses Customer Property to CultureIQ specifically for inclusion in publications, surveys, studies or other materials, Customer grants CultureIQ an irrevocable, perpetual, worldwide, freely assignable and transferable, royalty-free license to such Customer Property. Such license includes, without limitation, the right to display, perform, sublicense, distribute (internally and externally), prepare derivative works based upon, copy, and use such information, including any portions, subsets and derivatives thereof. This license will apply to the distribution of Customer Property in any form, medium, or technology now known or later developed. Any derivative works prepared or created by CultureIQ shall be owned by CultureIQ.
Article 4: Data Protection
4.2 Confidentiality of Provided Responses. Notwithstanding anything to the contrary herein, Customer and CultureIQ agree that neither Party will breach any promises of confidentiality made to any survey, assessment, or other services participant. Customer shall not ask or induce others to ask CultureIQ to provide any data, including survey or assessment responses, to Customer or any third parties in violation of confidentiality notices presented to participants.
4.3 Data Processing. CultureIQ shall process Personal Data solely in accordance with the Data Processing Addendum that references this Agreement.
4.4 Third Parties. CultureIQ may disclose Personal Data to a Third Party in the following limited circumstances: (i) if CultureIQ or its applicable Affiliate buys or sells any business assets, (ii) if CultureIQ contracts with Third Parties to perform or provide certain services on behalf of CultureIQ, or (iii) if CultureIQ is under a duty to disclose or share Personal Data to comply with any legal obligation. CultureIQ or its applicable Affiliate shall contractually require any buyer of CultureIQ’s assets that include Personal Data or any Third Party performing services on CultureIQ’s behalf to provide the same level of protection for Personal Data required in this Agreement and under any applicable data protection laws. For purposes of this Article 4, Third Party does not include the Data Controller or the Data Processor or other person authorized to process data for the Data Controller.
Article 5: Indemnification
5.1 Indemnification by Parties. Customer and CultureIQ (each, in such capacity, the “Indemnifying Party”) agree to indemnify, defend, and hold harmless the other party, and its respective Affiliates, directors and employees, (each, an “Indemnified Party”), from and against any and all damage, liability, and expense, including reasonable legal fees and expenses (“Losses”), awarded or paid in settlement of any claim, demand, action or proceeding by any third party brought against such Indemnified Party (“Claim”), in each case to the extent directly and proximately arising from or by reason of any actual or alleged infringement of any Intellectual Property Rights arising out of any materials supplied to the Indemnified Party by the Indemnifying Party.
5.2 Indemnification Procedure. To exercise the rights under this Article 5, the Indemnified Party must (i) give the Indemnifying Party prompt written notice of any Claim, or suspicion of a Claim, (ii) cooperate with the Indemnifying Party’s reasonable request for information or other assistance, (iii) grant control of the defense and settlement of the Claim to such Indemnifying Party, and (iv) not settle or make any offer to settle the Claim or make any admission of guilt or fault without first obtaining the Indemnifying Party’s prior written approval.
5.3 Obligation. At the Indemnifying Party’s election, the Indemnified Party will allow the Indemnifying Party to either obtain for the Indemnified Party the right to continue using the affected material, replace it, modify it so it becomes non-infringing, or, in the case of CultureIQ (and at CultureIQ’s sole discretion), require return of such infringing material and then refund to Customer the amount(s) paid to CultureIQ for Services not yet rendered.
5.4 Sole Remedy. This Article shall constitute a Party’s sole and exclusive remedy at law hereunder in connection with any Claim brought against such Party by a third party alleging actual or alleged infringement of any Intellectual Property Rights.
5.5 Limitation of Indemnification. To the extent that CultureIQ is the Indemnifying Party under Section 5.1, such provision shall not apply to Customer’s misuse of CultureIQ Property, or Customized Deliverables; Customer’s use of CultureIQ Property, or Customized Deliverables in combination with any product or information not provided by CultureIQ; information, materials or specifications provided by or on behalf of Customer, including, without limitation, Customer Property; or Customer’s utilization of the CultureIQ Property or Customized Deliverables in a manner not contemplated by this Agreement, in each case, whether or not with CultureIQ’s consent.
Article 6: Limitation of Liability
6.1 Limitation of Liability. Except with respect to its obligations under Article 5, a breach of a Party’s Intellectual Property Rights, or a breach of Section 7, neither Party, its respective Affiliates, directors, officers, employees, consultants and agents, shall have any liability of any type (including, but not limited to, contract, negligence, and tort liability), for any special, incidental, indirect or consequential damages, including, but not limited to the loss of opportunity, loss of use, or loss of revenue or profit, in connection with or arising out of this Agreement or any Order, even if such damages may have been foreseeable, except as may otherwise arise under applicable law. In addition, except with respect to its obligations under Article 5, a breach of a Party’s Intellectual Property Rights, or a breach of Section 7, the collective, aggregate liability (including, but not limited to, contract, negligence and tort liability) of each Party, together with its Affiliates and its and their directors, officers, employees, consultants and agents, under this Agreement shall not exceed the amount of fees paid or payable to CultureIQ pursuant to the applicable Order in the preceding twelve months.
6.2 Equitable Relief. Notwithstanding the foregoing, each Party agrees that a breach of any obligations hereunder may result in irreparable harm to the non-breaching Party for which money damages would not be inadequate. Consequently, in the event of a breach or threatened breach by a Party, the non-breaching Party shall be entitled, without the requirement of posting a bond or other security, to seek equitable relief, including injunctive relief and specific performance. The Parties agree that any such equitable relief is in addition to all other available remedies set forth herein and shall not preclude the non-breaching Party from seeking other available remedies set forth herein.
6.3 Unlimited Liability. Nothing contained in this Agreement or any Order shall exclude or limit either Party’s liability for (i) death or personal injury caused by its or its Affiliate’s negligence, (ii) fraud or fraudulent misrepresentation, or (iii) any other matter for which it would be illegal to limit or exclude or attempt to limit or exclude liability.
Article 7: Confidential Information
7.1 Confidential Information, The Agreement, its content, the matters to which it relates and information exchanged, whether in tangible or intangible form or disclosed orally or in writing, pursuant to it are confidential between the parties. The Receiving Party shall maintain Confidential Information of the Disclosing Party in confidence using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care and shall not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement. CultureIQ shall be allowed to disclose Confidential Information to its Affiliates, consultants, vendors or subcontractors who are necessary to provide Services to Customer, provided that any such Affiliates, consultants, vendors or subcontractors are bound by confidentiality obligations at least as restrictive as those contained in this Agreement.
7.2 Confidential Information Exclusions. Confidential Information shall not include information which (i) was already known by the Receiving Party at the time of the disclosure by the Disclosing Party; (ii) is, was or becomes publicly available other than as a result of disclosure by the Receiving Party in breach hereof; (iii) was disclosed to the Receiving Party on a non-confidential basis from a third party source other than the Disclosing Party, which the Receiving Party reasonably believes is not prohibited from disclosing such information as a result of an obligation in favor of the Disclosing Party; (iv) is developed by the Receiving Party independently of any disclosure of such information made by the Disclosing Party; or (v) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule or regulation, or by subpoena, summons or any other administrative or legal process, or by applicable regulatory or professional standards; provided, that, in the event that the Receiving Party is ordered by a court of competent jurisdiction, administrative agency or governmental body to disclose any Confidential Information, the Receiving Party shall (i) promptly notify the Disclosing Party of such order; (ii) at the written request of the Disclosing Party, diligently contest such order at the sole expense of the Disclosing Party as expenses occur; and (iii) at the written request of Disclosing Party, seek to obtain at the sole expense of the Disclosing Party such confidential treatment as may be available under applicable laws for any information disclosed under such order.
7.3 Return or Destruction of Confidential Information. Upon written request after termination or expiration of this Agreement or an applicable Order, subject to Customer’s rights under Section 3.4 of this Agreement and CultureIQ’s rights pursuant to Sections 3.6(d) or 3.6(e) of this Agreement, each Party shall promptly return by commercially reasonable means or destroy all tangible Confidential Information that was disclosed to it by the other Party; provided, that neither Party will be required to return or destroy Confidential Information stored as part of a routine disaster recovery backup of its computer network applications; and provided, further, that the Receiving Party may retain one copy of the Confidential Information in its legal files solely for archival purposes.
7.4 Survival. The obligations of each Party under Section 7.1 shall continue in force and survive the longer of the termination or expiration of this Agreement or any applicable Order for a period of five (5) years following such termination or expiration.
7.5 No License. The Disclosing Party grants no license under any copyright, patent, trademark or trade secret by the disclosure of the Confidential Information. The Parties understand and acknowledge that any and all Confidential Information is being provided by the Disclosing Party without any representation or warranty, express or implied, as to the accuracy or completeness of such Confidential Information.
Article 8: Term and Termination
8.1Term of Agreement. This Agreement becomes effective when the parties enter into an Order and will remain in effect so long as such Order remains in effect, unless otherwise terminated as provided herein.
8.2 Term of Order. The term for each Order shall commence on the effective date of the applicable Order (or, if no effective date is specified, on the date the Order has been executed by both Customer and CultureIQ) and shall be in effect for the term specified in the Order.
8.3 Termination for Cause. Either party may terminate this Agreement or an Order if the other party does not cure its material breach of this Agreement or the applicable Order within 30 days of receiving written notice of the material breach from the non-breaching party. At the non-breaching party’s election, such termination will apply only to the applicable Order. Termination of this Agreement will terminate any then-outstanding Orders. Termination in accordance with this Section 8.3 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Customer fails to timely pay any fees, CultureIQ may, without limitation to any of its other rights or remedies, suspend performance of all Services for Customer until CultureIQ receives all amounts due. In the event of termination as a result of Customer’s failure to comply with any of its obligations under this Agreement, Customer shall continue to be obligated to pay for Services that have been rendered through the termination date plus all other charges that would have been due under the remaining term of each affected Order. Upon termination of this Agreement or an Order due solely to a breach by CultureIQ, CultureIQ shall refund a pro rata portion of any fees paid for services not yet rendered as of the date of termination. Termination of the Agreement or any Order shall be in addition to and not in lieu of any equitable remedies available to CultureIQ.
Article 9: Publicity
9.1 Usage of Customer Name and Marks. Customer permits CultureIQ and its Affiliates, as applicable, to use Customer’s name and logo for their internal and external customer lists and other marketing materials. In addition, if Customer discloses Customer Property to CultureIQ or its Affiliates for specific inclusion in materials or for the joint development of a case study or other research, CultureIQ or its Affiliates may attribute such information with Customer’s name and logo.
9.2 Other Use. Except as provided herein, CultureIQ will not use Customer’s name and logo for any other purpose without Customer’s prior consent.
Article 10: Representations and Warranties
10.1 Mutual Representations and Warranties. Each Party represents and warrants that (i) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization; (ii) it has the power, authority and legal right to enter into this Agreement and to perform the obligations hereunder, including under any Order, and that it has taken all necessary corporate action to authorize execution of this Agreement; (iii) necessary consents, approvals and authorizations of governmental authorities and other persons required to be obtained related to the performance of this Agreement have been obtained; and (iv) the execution and delivery of this Agreement will not conflict with or violate any requirement of any applicable law or regulation, and does not conflict with or constitute a default under any contractual obligation.
10.2 CultureIQ. CultureIQ represents and warrants that Services will materially conform to the specifications describing such Services and that it will perform Services hereunder in good faith and in a professional manner. If Company reasonably demonstrates that there is a defect in the materials or workmanship of Services have not been performed with reasonable care and skill in accordance with good industry practice, CultureIQ will, at its option and Customer’s sole and exclusive remedy:
(a) repair or make good such defect at no charge to Company; or
(b) re-perform such Services; or
(c) issue a credit note to Company for the whole or part of the price of such Services as appropriate
10.3 Customer. Customer represents and warrants that it has the full legal right to provide all Customer Property that it provides to CultureIQ in connection with this Agreement or any Order, and all associated Intellectual Property Rights and that CultureIQ’s use of such Customer Property in accordance with this Agreement will not infringe upon any patent, trademark, copyright or any trade secret or any other proprietary right of any third party or person.
10.4 Disclaimers of Warranty. The Parties agree that the Services are based on compilation and analysis of the best sources available to CultureIQ at any given time and any opinions reflect CultureIQ judgment at the time and are subject to change.
EXCEPT AS OTHERWISE PROVIDED HEREIN, CULTUREIQ DISCLAIMS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES FOR ITS SERVICES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. CULTUREIQ DOES NOT WARRANT OR GUARANTEE THAT CUSTOMER WILL REALIZE ANY RESULTS BY VIRTUE OF THE USE OF THE SERVICES. AS SUCH, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CULTUREIQ SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY OR ARISING AS A RESULT OF RELIANCE BY CUSTOMER UPON CULTUREIQ’S SERVICES.
FURTHERMORE, WITH RESPECT TO THE PLATFORM, CULTUREIQ DOES NOT WARRANT OR GUARANTEE CUSTOMER’S USE OF THE PLATFORM OR THAT THE PLATFORM WILL BE FREE FROM ERROR, OMISSION, INTERUPTION, DEFECT, DELAY IN OPERATION, TECHNICAL INACCURACIES, VIRUSES OR OTHER HARMFUL CODE. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CULTUREIQ SHALL NOT BE LIABLE FOR ANY DAMAGES INCURRED BY OR ARISING AS A RESULT OF RELIANCE BY CUSTOMER UPON THE CULTUREIQ AND INFORMATION PROVIDED THROUGH THE PLATFORM.
Article 11: General Terms
11.1 Anti-Bribery and Corruption. Each Party will comply with all applicable laws of the countries where it operates, including all securities, anti-corruption, and anti-bribery laws, and with the US Foreign Corrupt Practices Act and the UK Bribery Act. Any breach of this Article is a material breach of this Agreement.
11.2 Sanctions. CultureIQ’s Services are subject to US sanctions laws and may not be sold or licensed to any party listed on the Specially Designated Nationals List maintained by the U.S. Department of the Treasury (“Restricted Party”) or in US sanctioned countries (currently Cuba, Iran, North Korea, Sudan and Syria). Customer agrees not to use, transfer, or provide access to the Services (a) to any Restricted Party or (b) in (or for the benefit of individuals or entities from) such US sanctioned countries. Customer confirms that it is not directly or indirectly owned by, controlled by, owning or controlling or named as a Restricted Party. CultureIQ may not do business with a Restricted Party under US law. Any breach of this Article is a material breach of this Agreement.
11.3 Assignment. Neither Party may assign its rights or delegate its obligations under this Agreement or any Order without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign its rights and obligations under this Agreement to an entity that acquires all or substantially all of a Party’s assets as a successor to the business during the Term of this Agreement, provided that the Party assuming obligations agrees to do so in writing and has adequate resources to meet its obligations hereunder. Should an entity who acquires Customer during the Term of this Agreement already have independent access to the Services being provided hereunder, the acquiring entity’s obligations of payment for Customer’s purchased Services pursuant to an Order shall remain in effect.
11.4 Headings and Enumerations. Article and Section headings and enumerations contained in this Agreement are for convenience of reference only and will not control or affect the meaning or construction of any its provision.
11.5 Dispute Resolution. In the event of any dispute between the Parties, prior to a Party commencing an action in court for damages, each Party shall designate a representative and the representatives shall meet in person or telephonically in a good-faith attempt to resolve the dispute. Prior to such meeting, the complaining Party shall provide a detailed, written explanation of the dispute in order to facilitate the efforts to achieve mutually agreeable resolution. In the event that the Parties are unable to resolve their dispute in such meeting or such meeting does not occur within thirty (30) days of the initial notice being provided by the complaining Party, then either Party shall be free to pursue other available judicial remedies at law. Notwithstanding the foregoing, this Section 11.4 shall not prevent or delay a Party from terminating this Agreement or seeking those remedies set forth in Section 6.2.
11.6 Force Majeure. CultureIQ shall be relieved from any and all liability under or in connection with this Agreement to the extent that such liability arises from any failure to perform any of its obligations under or in connection with this Agreement and has been caused or contributed to by a force majeure event or circumstance including acts of God, war, hostilities (whether war be declared or not), civil disturbance, government action, strikes, lock-outs or labor disputes, computer virus or any other event or circumstance or cause whatsoever beyond the reasonable control of CultureIQ.
11.7 Governing Law. Unless otherwise agreed in an Order, this Agreement, shall be governed by, and construed in accordance with, the laws of the State of New York (without giving effect to the choice of law principles). Both Parties agree to submit to the jurisdiction of New York courts to resolve disputes.
11.8 Insurance. Each Party will maintain in full force and effect throughout the Term of this Agreement the following insurance at its sole cost and expense:
- Workers’ Compensation and Employers Liability in accordance with all federal, state, and local requirements and coverage with a minimum limit of $1,000,000 each accident, with a policy limit of not less than $1,000,000;
- Commercial General Liability, including coverage for bodily injury, property damage and personal injury liability, with a minimum limit of $1,000,000 each occurrence and $2,000,000 aggregate;
- Business Automobile Liability covering all vehicles that CultureIQ hires or leases in an amount not less than $1,000,000 combined single limit for bodily injury and property damages;
- Commercial Excess Umbrella in an amount not less than $5,000,000 each occurrence and aggregate;
- Errors and Omissions/Cyber coverage in an amount not less than $2,000,000 annual aggregate.
All insurance obtained by CultureIQ will be underwritten by an insurer having a minimum AM Best insurance rating of “A-”. Upon request, CultureIQ will furnish Customer certificates of insurance and/or other appropriate documentation evidencing all of the coverage described in this Section 11.8.
11.9 Modifications. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior understandings, proposals, negotiations and communications, oral or written, between the Parties or their representatives. Any and all additions, amendments and/or modifications to the terms and conditions of this Agreement or any Order must be in writing and shall only be binding if signed by duly authorized representatives of the Parties. All such additions, amendments and/or modifications should be dated.
11.10 Notice. All notices and other communications required in connection with this Agreement or any Order shall be in writing, and will be either delivered personally (as evidenced by a signed receipt) or mailed by first class prepaid postage to the address provided in the opening paragraph of this Agreement unless otherwise designated. A notice or other communication delivered personally shall be deemed to have been served on the date on which it is delivered to the designated addressee. Notices to CultureIQ shall be addressed to the attention of the CultureIQ Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated.
11.11 Relationship of the Parties. Each Party is an independent contractor, and neither Party is, nor shall represent itself to be, an agent, partner, fiduciary, joint venturer, co-owner or representative of the other Party. Customer understands that nothing in this Agreement shall be construed to restrict CultureIQ’s ability to provide similar products or services and enter into similar arrangements with other entities that may be similar to or in the same business as Customer.
11.12 Severability. If any term, condition, or provision of this Agreement is for any reason declared or found to be illegal, invalid, ineffective, inoperable, or otherwise unenforceable, it shall be severed and deemed to be deleted from this Agreement and the validity and enforceability of the remainder of this Agreement shall not be affected or impaired thereby the remaining terms shall remain in full force and effect.
11.13 Exhibits. All exhibits, attachments, appendices (without limitation defined as “Exhibits”), or Orders shall be deemed a part of this Agreement. In the event of any conflict or inconsistency between the provisions of an Exhibit or an Order, the Exhibit or Order shall supersede this Agreement.
11.14 Subcontractors. CultureIQ may from time to time, delegate its obligations and responsibilities hereunder to third party subcontractors that are under contract with CultureIQ; provided, however, that (i) the subcontractor shall be bound by confidentiality provisions at least as stringent as those to which CultureIQ is subject under this Agreement; (ii) CultureIQ shall not be relieved of any responsibilities or obligations under this Agreement that are performed by the subcontractor; and (iii) CultureIQ shall remain Customer’s sole point of contact and sole contracting party. Performance of CultureIQ’s obligations by its Affiliates will not be considered subcontracting under this Agreement.
11.15 Waiver. Failure by either Party at any time to enforce any provision of this Agreement against the other shall not be construed as a waiver of such entitlement and shall not affect the validity of this Agreement or any part or parts hereof or the right of the relevant Party to enforce any provision in accordance with its terms.
11.17 Counterparts. Any Order hereunder may be executed in several counterparts, each of which is deemed an original but all of which will constitute one and the same document.
[End of Agreement]
Valid through May 31st, 2018.
- 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.