GENERAL TERMS AND CONDITIONS
Updated effective Friday August 24, 2018
These are the General Terms and Conditions under which Activated Insights, Inc. (“AI” or “Activated Insights”) provides its products and services to its customers. An agreement is made between Activated Insights and a customer only by signature by each party of a Subscription Order Form specifically referencing these General Terms and Conditions.
AI provides its products and services only to corporate customers and organizations. AI does not provide its products and services to individuals. The provision of Survey or other responses or information by an individual to AI in response to a request of his / her organization or otherwise does not create a contract between AI and that individual, and AI makes no representations, express or implied, to any individual or to anyone other than a Customer as specifically provided in the Agreement.
Where used in the Agreement, the following terms will have the meanings given them below. Capitalized terms used in the Agreement but not defined in this Section have the meaning given to them in the Agreement.
2.1 “Affiliates” means a legal entity that controls, is controlled by, or under common control with, a Party, where control means ownership of, or the power to direct the voting of, more than 50% of the voting interests of the subject legal entity.
2.2 “Aggregate Data” means (a) the Company-specific information, data, and content contained in any report(s) delivered to Company pursuant to the Agreement; and (b) any other aggregated data that is derived from the Raw Data and that is delivered by AI to Company pursuant to the Agreement. For the avoidance of doubt, Aggregate Data does not include any Raw Data or Company Data.
2.3 “Agreement” means one or more Subscription Order Forms entered into between Customer and AI together with these General Terms and Conditions, all as the foregoing may be added to or amended by the Parties from time to time in accordance with Sections 3.2 (Further Services) and 14.6 (Amendments).
2.4 “AI Intellectual Property” means (a) all copyrightable works owned or licensed by AI (including without limitation books, articles, brochures, Surveys, Trust Index Surveys, Culture Audits, Trust Model and Methodology, the form and structure of reports, and other materials, tools and methodologies), whether or not the copyrights in such works have been registered in the U.S. or any other jurisdiction; (b) all confidential information and material belonging to AI; (c) all AI and Great Place to Work names, service marks, icons, and logos; (d) all AI Materials; (e) the Data; (f) the Services; and (g) the Software.
2.5 “AI Materials” means all techniques, algorithms and methods or rights thereto owned by, or licensed to, AI during the term of the Agreement and employed by AI in connection with the Services provided to Company.
2.6 “Assessment” means any assessment conducted by AI as part of the Services pursuant to which AI uses its tools and methodologies to assess and measure work place culture (including, but not limited to, use of Trust Index Survey, Culture Audit, Trust Model and Methodology).
2.7 “Company” means the Customer including its Affiliates.
2.8 “Company Data” means Company’s proprietary data and information that Company provides to AI so that AI may, as part of the Services, conduct an Assessment (e.g., demographic and corporate information necessary to distribute the Survey to participants (such as email address, employee ID, and other personally identifying information) and the data provided by Company to AI for the Culture Audit). For the avoidance of doubt, Company Data does not include either Aggregate Data or Raw Data.
2.9 “Customer” means the legal entity that enters into a Subscription Order Form with AI for the order of products and services from AI.
2.10 “Data” means the Raw Data and the Aggregate Data.
2.11 “Fees” means the fees to be paid by Company to AI as set forth in the applicable Subscription Order Form.
2.12 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
2.13 “Party” means each of AI and Customer, and together AI and Customer are the “Parties” to the Agreement.
2.14 “Raw Data” means the confidential and anonymous responses received by AI from Company and Company’s employees in connection with, among other things, the Trust Index Survey(s) and/or Culture Audit(s), focus groups, and one-to-one interviews administered by AI pursuant to the Agreement. For the avoidance of doubt, Raw Data does not include any Aggregate Data or Company Data.
2.15 “Services” means the Software AI will make available to Company and the services that AI will perform for Company as described in the applicable Subscription Order Form.
2.16 “Software” means any software owned or licensed by AI and used by AI to provide the Services, together with any updates, bug fixes, help content, and other related materials that AI provides to Company.
2.17 “Subscription Order Form” means one or more subscription order forms under entered into by AI and Customer for the provision by AI of products and services to Company.
2.18 “Survey” means the web- or paper-based Company employee engagement survey consisting of AI’s standard survey questions and additional questions as requested by Company.
2.19 “Term” means the term of the Agreement as set out in the applicable Subscription Order Form, unless earlier terminated in accordance with these General Terms and Conditions.
3. LICENSE; SERVICES
3.1 License. Subject to the terms and conditions of the Agreement, including payment of all Fees, (i) AI hereby grants Company a personal, limited, non-exclusive, nontransferable license to access and use the Software during the Term, and (ii) AI will perform the Services.
3.2 Further Services. Subject to Section 14.6 (Amendments), the Parties may modify the existing scope of Services by (a) amending an existing Subscription Order Form (including with respect to additional Fees); or (b) executing additional Subscription Order Forms.
3.3 Restrictions. Company may not, and may not enable any third party, to (a) work around any technical limitations in the Software, or decompile, disassemble or otherwise reverse engineer the Software except as otherwise permitted by applicable law; or (b) otherwise use the Software except as expressly allowed under Section 3.1 and the applicable Subscription Order Form.
4. COMPANY OBLIGATIONS
4.1 Cooperation and Assistance. As a condition to AI’s performance under the Agreement, Company will at all times: (a) provide AI with good faith cooperation and access to such information, facilities, and equipment as may be reasonably required by AI in order to provide the Services, including, but not limited to, providing Company Data; (b) provide such personnel assistance as may be reasonably requested by AI from time to time; and (c) comply with its obligations under the Agreement.
4.2 Telecommunications and Internet Services. Company acknowledges and agrees that Company’s and Company’s users’ use of the Assessment portion of the Services is dependent upon access to telecommunications and Internet services. Company and Company’s users will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Assessment portion of the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.
4.3 Paper Survey Option for Assessment Portion. Company acknowledges and agrees that Company’s and Company’s users’ use of the Assessment portion of the Services may be administered via paper Surveys in addition to via the telecommunications and Internet services. AI will be responsible for facilitating paper Survey design and distribution. Company and Company’s users will be responsible for all costs, fees, expenses, and taxes of any kind related to the foregoing.
5.1 In consideration for AI making available and performing the Services, Company will pay to AI the Fees in the amounts and in accordance with the terms set forth in the Subscription Order Form. Unless otherwise set out in a Subscription Order Form, Fees are payable within thirty (30) days of the invoice date. AI reserves the right to cease making available or performing the Services to Company if payments are not made on time. AI reserves the right to charge interest on overdue balances at a total rate of the Wall Street Journal Prime Rate plus five percent (5%), calculated from the due date and compounded monthly on an actual/365 day basis.
6. OWNERSHIP AND USE OF DATA
6.1 Company Data.
(a) As between AI and Company, the Company Data, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of Company or its licensors.
(b) AI will use Company Data solely to perform the Services and in a manner that is compatible with the purposes for which the Company Data is furnished to AI or subsequently authorized to be used, and AI will implement and maintain security measures to help ensure that any Personal Information included in Company Data is properly maintained and protected in accordance with Section 9 (Data Protection).
6.2 Aggregate Data and Raw Data.
(a) As between AI and Company, the Raw Data and the Aggregate Data, and all Intellectual Property Rights therein or relating thereto, are and will remain the exclusive property of AI.
(b) The Raw Data will not be provided to Company by AI in order to protect the confidentiality of Company respondents. Company may use Aggregate Data solely as described in Section 7.3.
(c) AI intends to use the Aggregate Data solely for the internal purposes of AI, including without limitation for benchmarking, creation of best practices and other R&D purposes. AI will not share any Raw Data, Company Data, or any non-anonymous, Company-specific information about Company’s results with any third parties other than Great Companies to Work Institute, Inc., its successors and assigns (“GPTW”), and in such case only for the purpose of AI’s performance of its obligations under the Agreement, without receiving prior written permission from Company (i.e., the Data is not intended to be associated with Company or any individual Company employee). The foregoing sentence will not apply in connection with Company’s participation, if it so elects, in the Best Companies to Work For List under the terms and conditions referenced in Section 10.
(d) To protect the confidentiality of Company respondents, (a) AI recommends reporting Assessment results only for those Company demographic groups (departments, demographic groups, etc.) in which ten (10) or more people responded to the Assessment; and (b) AI will not report on Assessment results in which fewer than five (5) people in a Company demographic group have responded.
(e) AI will capture, upload, and combine paper Surveys with web Survey data when applicable. AI will keep hard copies of any paper Surveys for not less than three (3) months from the Survey closure date.
7. TREATMENT OF INTELLECTUAL PROPERTY
7.1 Notwithstanding any provision of the Agreement to the contrary, (a) all Intellectual Property Rights belonging to a Party, sub-contractor or third party prior to the Effective Date, or created other than in connection with AI’s provision of the Services (“Pre-existing IPR”) will remain with, and vested in, that Party, sub-contractor or third party (as applicable) and will not be assigned under the Agreement, and (b) all Intellectual Property Rights in all enhancements and modifications to, or derivative works of, any Pre-existing IPR made by either Party will be with, and vest in, the owner of the relevant Pre-existing IPR.
7.2 As between AI and Company, the AI Intellectual Property, and all Intellectual Property Rights therein or relating thereto (except for limited rights granted to Company and Company’s users in the Agreement), are and will remain the exclusive property of AI or its licensors. Company is not acquiring any rights to any AI Intellectual Property. Any use of AI Intellectual Property other than as expressly described in the Agreement requires prior written approval from AI.
7.3 Without AI’s prior written approval, which may be withheld in AI’s sole discretion, Company will not use or re-use any AI Intellectual Property in any manner other than pursuant to its receipt of the Services during the Term (including in any surveying conducted either in-house or with another vendor outside of the scope of the Agreement). Reports and documents (including electronic documents) provided by AI to Company may be distributed internally by Company, but any external distribution requires prior written approval from AI.
7.4 Company will not infringe or misappropriate the Intellectual Property Rights of AI or of any third party in the course of performing its obligations under the Agreement.
7.5 Company acknowledges and agrees that AI Intellectual Property is the valuable property of AI. Company will safeguard and protect AI Intellectual Property that it receives. Company will not alter or modify, or permit others to alter or modify AI Intellectual Property without the prior written approval of AI. As examples only, and in no way as any limitation of this provision, no text may be revised nor may any mark or logo be altered, distorted or modified in any way.
7.6 In the event Company becomes aware of any infringement or unauthorized use of AI Intellectual Property by Company, its personnel or by any third party, Company will immediately notify AI of such infringement or unauthorized use. If such infringement or unauthorized use is by Company or its personnel, Company immediately will cease such infringement or unauthorized use; if such infringement or unauthorized use is by a third party, Company will cooperate with AI in causing the third party to cease such infringement or unauthorized use.
8.1 All information provided by Company to AI or otherwise obtained by AI as a receiving Party relating to the business or operations of Company or its clients or any person, firm, company or organization associated with Company, will be treated by AI as confidential, and AI will not disclose the same to third parties (other than to GPTW, solely for the purpose of AI’s performance of its obligations under the Agreement) without the prior written consent of Company. The Parties acknowledge and agree that the confidential information of Company does not include the Raw Data and the Aggregate Data, which will be confidential information of AI.
8.2 In the event that Company as a receiving Party has access to any confidential information and/or material belonging to AI (including AI Intellectual Property), whether such access is intended or inadvertent, then Company will treat such information and/or material as confidential and will not disclose such information and/or material to third parties without the prior written consent of AI.
8.3 The confidentiality provisions set forth in the Agreement will not apply to confidential information which (a) is in or enters the public domain other than by acts or omissions of the receiving Party, (b) is obtained by the receiving Party from a third party who obtained it lawfully without obligation of confidentiality, (c) is or has been independently generated by the receiving Party as evidenced in written documents, or (d) is properly disclosed by the receiving Party pursuant to a statutory obligation, the order of a court of competent jurisdiction or that of a competent regulated body that requires the disclosure of confidential information or material belonging to the other Party, provided that the receiving Party will before disclosure notify the other Party, unless such notice is prohibited, so that steps may be taken to attempt to quash or limit any disclosure.
8.4 The foregoing obligations as to confidentiality will apply retrospectively, from the point of first contact between Company and AI regarding the Services, and will remain in full force and effect notwithstanding any termination of the Agreement.
9. DATA PROTECTION
9.1 AI will use commercially reasonable efforts consistent with industry standards to collect, transmit, store, protect and maintain the Data and Company Data obtained through the Services.
9.2 “Personal Information” means any personal information about an individual, whether in paper, electronic or other form, received by AI from Company in connection with AI’s performance of its obligations under the Agreement. Personal Information includes but is not limited to a person’s name, address, contact information, e-mail address, IP address, employee identification number, consumer preferences, marital status, salary, occupation, demographic information, image, information provided by the individual in connection with its relationship with Company and the fact that individual has a relationship with Company. For purposes of the Agreement, Personal Information excludes nonpublic personal information provided by an individual directly to AI so long as AI was not collecting such information on behalf of Company or in furtherance of completing transactions as required pursuant to the Agreement.
9.3 In connection with the Services, AI may receive, process and store Personal Information in the United States or other jurisdictions. Personal Information received by AI will be protected by AI as described in Section 9.1 above. Company will take all steps necessary to ensure that the transfer to, processing by and storage by AI of Personal Information complies with Company’s privacy policies and the laws and regulations affecting Company. In the event that consent of any individual is required to be obtained before transfer of Personal Information to AI, Company is responsible for obtaining free and voluntary consent of any affected individual.
9.4 “Sensitive Personal Information” means an individual’s name together with a Social Security Number, financial account number, driver’s license or state-issued identification number, health or medical information, passport number, date of birth, mother’s maiden name, or biometrics.
9.5 Company agrees that Company will not under any circumstances provide or make available to AI any Sensitive Personal Information. If Company provides information containing Sensitive Personal Information, AI may return such information and request that Company strip out any Sensitive Personal Information.
9.6 Company agrees that if it provides AI with personal mobile phone numbers or personal email addresses, or both, for Company employees, contractors or other potential respondents to surveys or other information gathering by or on behalf of AI, that it has obtained such consents that are necessary and sufficient to permit AI to contact such Respondents without liability to AI, its Affiliates or suppliers under applicable law, including without limitation under the Telephone Consumer Protection Act or similar state or federal laws, and such consents are and will be in full force and effect.
10. GREAT PLACE TO WORK CERTIFICATION PROGRAM PARTICIPATION
10.1 If eligible, Company may request to be entered as an applicant for the Great Place to Work Certification Program which includes the Fortune Magazine 100 Best Companies to Work For® list published by Fortune Magazine. Company’s participation in such Certification Program will be subject to GPTW’s terms and conditions for the program in effect from time to time.
11.1 Termination of Agreement. If either party breaches a material term or condition of the Agreement, the other party may terminate (at its discretion) the Agreement, upon thirty (30) days’ prior written notice to the breaching party if such breach is not cured within such period. The Agreement may be terminated by a party for cause immediately (i) if the other party ceases to do business without a successor, or otherwise terminates its business operations, or (ii) if the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party. Termination is not the sole remedy under the Agreement and, whether or not termination is effected, except as limited in the Agreement, all other remedies will remain available. All provisions of the Agreement which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers, indemnity, confidential information, and limitations of liability.
11.2 Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of the Agreement, Company’s and Company’s users’ right to access and use the Services (and any AI Intellectual Property) will immediately terminate, Company and its users will immediately cease all use of the Services (and any AI Intellectual Property), and each Party will return and make no further use of any confidential information, materials, or other items (and all copies thereof) belonging to the other Party no later than ten (10) days after the effective date of the expiration or termination of the Agreement. Notwithstanding the foregoing, after the effective date of the expiration or termination of the Agreement, Company may continue to use any reports or other documentation provided pursuant to the Services for its own internal business purposes.
12.1 AI will release, defend, hold harmless and indemnify Company and its employees, officers, directors, shareholders, agents, representatives, successors and assigns, from and against any and all third party claims, demands, causes of action, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and costs, arising out of, resulting from or pertaining to (a) any negligent or wrongful act or omission of, or violation of law by, AI, or any of its employees, officers, directors, representatives or affiliates; or (b) a breach of any warranty or agreement made by AI in this Agreement.
12.2 Company will release, defend, hold harmless and indemnify AI and its employees, officers, directors, shareholders, agents, representatives, successors and assigns, from and against any and all third party claims, demands, causes of action, losses, liabilities, damages, costs and expenses, including reasonable attorneys’ fees and costs, arising out of, resulting from or pertaining to (a) any negligent or wrongful act or omission of, or violation of law by, Company or any of its employees, officers, directors, or representatives; or (b) a breach of any warranty or agreement made by Company in the Agreement.
12.3 The indemnified Party will promptly notify the indemnifying Party of any claim subject to indemnification, tender to the indemnifying Party control over the defense and settlement of the claim, and render reasonable assistance to the indemnifying Party with respect to such defense and settlement.
13. LIMITATION OF LIABILITY
13.1 IN NO EVENT WILL AI BE LIABLE FOR: (A) ANY DAMAGES ARISING OUT OF OR RELATED TO THE FAILURE OF COMPANY OR ITS AFFILIATES OR PERSONNEL TO PERFORM THEIR RESPONSIBILITIES; AND/OR (B) ANY LOST PROFITS, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF USE, LOST SAVINGS OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AI WILL NOT BE HELD RESPONSIBLE IF IT EITHER DELAYS PERFORMANCE OR FAILS TO PERFORM UNDER THE AGREEMENT AS A RESULT OF ANY CAUSE BEYOND ITS REASONABLE CONTROL.
13.2 IF COMPANY SHOULD BECOME ENTITLED TO CLAIM DAMAGES FROM AI FOR ANY REASON IN CONNECTION WITH THE AGREEMENT (INCLUDING WITHOUT LIMITATION, FOR BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT CLAIM), AI WILL BE LIABLE ONLY FOR THE AMOUNT OF COMPANY’S ACTUAL DIRECT DAMAGES UP TO THE AMOUNT THAT COMPANY PAID AI FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM. IN NO EVENT WILL AI’S AGGREGATE LIABILITY TO COMPANY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THE AGREEMENT EXCEED THE AMOUNT OF TWELVE (12) MONTHS’ WORTH OF FEES PAID BY COMPANY TO AI UNDER THE AGREEMENT. THESE LIMITS ARE THE MAXIMUM LIABILITY FOR WHICH AI IS RESPONSIBLE.
14.1 Waiver. The failure of the other Party to enforce any rights under the Agreement will not be deemed a waiver of any rights.
14.2 Assignment. The Agreement may not be assigned by Customer, whether voluntarily or by operation of law, in whole or part, without the prior written consent of AI. Any assignment without such consent is void and of no effect. The Agreement may be assigned by AI in connection with a change of control of AI or the sale of all or substantially all its assets. In the event of a permitted assignment, the Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
14.3 Relationship of the Parties. The Agreement does not create any agency, partnership, or joint venture relationship between the Parties, or AI and any Company.
14.4 Governing Law; Venue. The Agreement will be exclusively governed by and construed under the laws of the State of California, without reference to or application of rules governing choice of laws. All disputes arising out of or related to the Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and each Party hereby consents to such jurisdiction. However, AI may apply to any court or tribunal worldwide, including but not limited to those having jurisdiction over Company to seek injunctive relief. THE PARTIES HEREBY UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING UNDER THE AGREEMENT.
14.5 Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of the Agreement will remain in full force and effect.
14.6 Amendments. Once executed, the Agreement, and any individual Subscription Order Form may be modified only through the execution of a written instrument signed by the Parties specifically referencing the Agreement. However, AI may without restriction publish or otherwise distribute a new or updated version of these General Terms and Conditions, but the General Terms and Conditions in effect as of the effective date of a Subscription Order Form with Customer will apply for the term of the applicable Subscription Order Form unless otherwise specifically agreed by execution of a written instrument signed by the Parties.
14.7 Use of Names/Logo. Company may request permission for the use of the GPTW logo, and in doing so, should request to fill out and complete the “Use of Great Place to Work® Institute Materials Consent Agreement” (the “Material Consent Form”). Company understands that it is subject to all rules and guidelines set forth in the Material Consent Form, which govern the usage of the GPTW logo. AI may include Company’s name and logo on a client list, unless notified otherwise.
14.8 Legal Fees. If any action at law or in equity is necessary to enforce or interpret the Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.
14.9 Successors and Assigns. The Agreement and all of the terms and conditions hereof will be binding upon and inure to the benefit of AI and Company and their respective successors, transferees, permitted assignees or legal representatives.
14.10 Counterparts. A Subscription Order Form may be executed in two or more counterparts, each of which will be deemed an original and all of which together with these General Terms and Conditions will constitute one agreement.
14.11 Remedies. The rights and remedies in the Agreement provided will be cumulative and no one of them will be exclusive of any other and will be in addition to any other remedies available at law or in equity.
14.12 Order of Precedence. In the event of any conflict between or among the provisions contained in the Agreement, the following order of precedence will govern: (a) a Subscription Order Form if it specifically refers to and expressly states that it is amending the General Terms and Conditions, (ii) these General Terms and Conditions, and (iiii) Subscription Order Forms that do not specifically refer to and expressly state they are amending these General Terms and Conditions.
14.13 Notice. All notices required to be given under the Agreement will be in writing and will be sent to the respective address of the Party in the most current Subscription Order Form in effect, or to such other person or address as each Party may designate by notice given in accordance with this Section. Any notice under the Agreement may be delivered by hand or express courier and will be deemed to have been received: (i) by hand delivery, at the time of delivery; or (ii) by express courier, on the second business day after delivery to the carrier. If an email address is provided for a Party, a copy must also be sent via email, but such copy is for convenience only and the effective time of notice will be calculated as provided in the second sentence of this Section.
14.14 No Third-Party Beneficiaries; Customer Responsible for Affiliates. The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party (other than as described in Section 12 (Indemnification)). Only the Parties to the Agreement may enforce it. In particular, only the Customer, and not any individual Company other than the Customer, may enforce the Agreement against AI. Customer will be responsible for any breach of or non-compliance with the terms of the Agreement by any Company. AI may enforce the Agreement against Customer or any Company, or both, or Customer and multiple Companies.