These Terms, together with any Order, constitute the valid, complete and binding contract between you and us (the “Agreement”). If there is any conflict between the Terms and Order, the Order and any additional terms within such Order shall prevail for the Products and Services in that Order.
Purchase and Charges
- Order. Each Order will contain details of: (i) the Products and Services purchased by you; (ii) the Charges and payment schedule; (iii) the Order Term; and (iv) any other transaction-specific terms and conditions. An Order is binding upon the earliest to occur of the date: (a) you are provided access to and use the Products and/or Services; (b) we issue a written acknowledgment to you; or (c) the Order is signed by the parties.
- Acceptance: Products and Services are deemed accepted upon delivery unless otherwise stated in the Order. For certain Products and/or Services, electronic or phone purchases may be agreed between the parties and will be deemed to be Orders and subject to these Terms.
- Charges. You shall pay all Charges as specified in the Order together with VAT at the prevailing rate. Unless otherwise stated in the Order, Charges are based on Products and Services purchased and not actual usage and, except for a termination for cause below, Products and Services are non-cancellable and Charges non-refundable. Any additional travel and related expenses will be agreed prior to any site visits and will charged separately to you at cost.
- Invoicing. Unless otherwise agreed in an Order, Charges are payable within thirty (30) days of the date of invoice. If any part of an invoice is disputed, you will pay the undisputed amounts in full and the parties will reconcile the disputed amount in good faith as soon as possible. Late payments will bear interest at the higher of 2% per month, or the maximum rate allowed by law and may result in the withholding or suspension of Products and/or Services.
Ownership and Intellectual Property
- Customer Property. You shall retain exclusive ownership of all rights, title and interest in and to all Customer Property.
- Product and Services Licenses. Upon full payment of Charges, we grant you ownership of any Output, which you may download, copy, distribute and modify, subject to our retaining ownership of any underlying Intellectual Property Rights in the Output; and a non-exclusive, non-transferrable, perpetual license to use the PAL Property contained in the Output solely for your internal purposes. We reserve all rights not expressly granted hereunder.
- Qualified Subcontractors. We may disclose Personal Data to Qualified Subcontractors to provide certain services on our behalf providing such party provides the same level of protection for Personal Data required under these Terms and any applicable data protection laws.
- Data Breach. We will notify you of any unauthorised access to or misuse of Personal Data (a "Data Breach") within 48 hours after discovery of the Data Breach and shall immediately investigate and take appropriate remedial actions to mitigate the effects of the Data Breach in accordance with applicable laws, regulations and industry standards. Upon request, we shall provide you with a summary report of our investigation and remediation activities. Any Data Breaches on the part of a Product Author or Platform shall be managed in accordance with the procedures established by that entity.
- We will indemnify and defend you, your officers, directors, and employees (each, an "Indemnified Party") from and against any loss, damage, and expense, including reasonable legal Charges and expenses, incurred by the Indemnified Party directly arising from a valid third party claim, demand, action or proceeding ("Claim"), that the PAL Property under an Order directly infringes any third party Intellectual Property Rights. Indemnification is subject to the Customer not settling or making any offer to settle the Claim or making any admission of guilt or fault and on the basis that the Indemnified Party provides us prompt written notice of any Claim, co-operates with our reasonable request for information or assistance and grants us control of the defence and settlement of the Claim (provided that we will not settle a Claim in a manner that imposes any obligation on you without your prior written approval).
- Our indemnification obligation shall not apply to: (i) any misuse by you of PAL Property; (ii) your use of PAL Property in combination with any product or information not provided by us; or (iii) your use of PAL Property in a manner not contemplated by the Agreement, in each case, whether or not with our or a Qualified Sub-contractors’ consent.
- If any PAL Property becomes or is reasonably likely to become the subject of a Claim then, at our discretion, we will either obtain the right to continue using the affected PAL Property or replace or modify it so that it becomes non-infringing, in the absence of which, we shall terminate the applicable Order by written notice to you and you will cease use of the PAL Property and we will make a pro-rated refund of the Charges paid to us under the affected Order.
Limitations of Liability
- Neither party shall be liable for any of the following losses or damages (whether or not foreseen, direct, indirect, foreseeable, known or otherwise): (i) loss of profits, whether actual or anticipated; (ii) loss of revenue; (iii) loss of contracts; (iv) loss of anticipated savings; (v) loss of business; (vi) loss of opportunity; (vii) loss of goodwill; or (viii) any indirect, special or consequential loss or damage.
- Our total aggregate liability arising out of or in connection with the performance or contemplated performance under the applicable Order (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the price paid or payable by you to us under such Order within the 12 month period preceding the event giving rise to your claim.
- Nothing contained in the Agreement shall exclude or limit either party’s liability for (i) death or personal injury caused by its negligence; (ii) fraud or fraudulent misrepresentation; (iii) any infringement or misappropriation of either party’s or a third party’s Intellectual Property Rights; or (iv) any other matter for which it would be prohibited by applicable law to limit or exclude or attempt to limit or exclude liability. In all such cases a party’s liability shall be limited to the greatest extent allowed by applicable law.
- General. Except for termination for cause below, or as otherwise stated in an Order, you may not terminate the Order and any Charges stated to be paid or payable are non-refundable and non-cancellable.
- Termination for Cause. Either party may terminate an Order for cause if the other party: (a) becomes or is likely to become insolvent or enters into administration or bankruptcy; or (b) materially breaches any provision of the Agreement (including your failure to pay undisputed Charges in full and in a timely manner) and either (i) the breach is not capable of cure; or (ii) if capable of being cured, the breach is not cured within thirty (30) days after the breaching party’s receipt of notice of breach stating the specific nature of the breach. Such termination will be without prejudice to any rights or remedies either party may have accrued up to the termination date.
- Effect of Termination. Except as otherwise provided in the Agreement, upon expiration of the applicable Order Term, or termination of an Order, or portion thereof: (i) all licenses granted by us under the Order or these Terms shall immediately terminate; and (ii) you shall immediately cease use of the applicable Products and/or Services under the applicable Order. We reserve the right to charge you for any continued use of Products or Services after expiration or termination of an Order.
- You may purchase on-site services on a stand-alone basis or together with a Product. Charges in respect of such services will be based on estimated “work days”, defined as being a maximum of 8 hours during normal working hours for the location where the Services are performed. Product delivery and Service performance dates in an Order are estimates only and subject to the timely completion of your obligations and reasonable assistance to facilitate Service delivery, including, but not limited to, provision of necessary information, personnel and documentation approval. If you fail to meet your obligations in a timely manner, this will be at your expense and subsequent delivery or performance dates will be adjusted proportionate to the delay. We will not be liable if we are not able to deliver the Products or Services due to non-performance on your part. We will provide notice of any non-performance that materially prevents us from performing our obligations, and if not cured within a reasonable time, we will be deemed to have delivered the Products or Services in full.
- We may incur costs if you fail to meet your obligations or timelines in an Order or wish to cancel or postpone Product or Services delivery dates. Charges for cancellation of Services are: (i) 100% of the agreed Charges if cancelled after the Services commence or with less than one week’s notice; (ii) 50% if cancelled with less than two weeks’ notice; and (iii) 25% with less than three weeks’ notice. The parties may enter a change request to modify or amend an Order and agree on any additional charges.
- Our Warranties. We undertake to perform the Services in good faith with reasonable care and skill in accordance with good industry practice and in a professional manner. During the Order Term, if you demonstrate that the Services are deficient, we will (a) repair or make good such defect at no charge; (b) re-perform such Services; or (c) issue a credit for a pro-rata portion of the Charges paid for the affected Services. We make no representation or warranty in respect of the Products purchased pursuant to an Order.
- Exclusions. Our Services will assist our customers in identifying relationships and traits in its employees such that levels of employee engagement improve and the overall employee experience improves, leading to a better understanding of the workforce. The Output represents our professional opinion based on information provided to us by you, or on your behalf or by your employees, together with any applicable responses and free narrative commentary. The Output must not be relied upon as statements of fact or as the sole basis for any employment related decisions.
- Customer Warranties. You represent and warrant that you: (i) own or have the right to provide to us all Customer Property; (ii) will not copy, reproduce, modify or adapt, translate, disassemble or, reverse engineer, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Products and/or Services in any form or media or by any means, except as permitted under the Agreement; (iii) will not cause confusion, deception or false associations with products and/or services that are not Products and/or Services including without limitation preparing materials that are identical with, or confusingly similar to PAL Property; and (d) will use the Products and Services in compliance with all applicable laws, regulations, procedures and guidelines.
- DISCLAIMER OF WARRANTIES. WE PROVIDE THE PRODUCTS, SERVICES AND PAL PROPERTY “AS IS” AND DISCLAIM, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT GUARANTEE THAT YOU WILL REALISE ANY RESULTS THROUGH THE USE OF THE PRODUCTS OR SERVICES. THIS DISCLAIMER IS INTEGRAL TO ESTABLISHING PRICING AND IS AN ESSENTIAL PART OF THESE TERMS.
- Marketing. You permit us to use your name and logo for our internal and external customer lists and other marketing materials. If you expressly disclose Customer Property to us for inclusion in marketing materials, for joint development of a case study or other research, we may attribute such information with you name and logo. We may use your plain text name as required in any public reporting or regulatory documents.
- Governing Law. This Agreement is governed and construed in accordance with the laws of England and Wales and the parties agree to submit to exclusive jurisdiction of courts located in England and Wales to resolve disputes.
- Subcontracting. We may use our Qualified Subcontractors to perform Services and will at all times remain responsible for such Qualified Subcontractors hereunder.
- Confidential Information. On receipt of any Confidential Information, the relevant party will: (i) only use or disclose it as allowed under these Terms; (ii) only disclose it to its directors, officers, and employees with a need to know such information and who are under a duty of confidentiality; (iii) not disclose Confidential Information to any third party without the Disclosing Party’s prior written consent; and (iv) maintain the Confidential Information using at least the same degree of care it uses for its own proprietary and confidential information. We may disclose Confidential Information to our Qualified Subcontractors as necessary to provide you with the Products and Services, provided that such persons are bound by confidentiality obligations at least as restrictive as those herein. Each party’s obligations under this clause shall continue in force and survive the termination or expiration of the Order Term for a period of three (3) years. Confidentiality obligations for any Confidential Information subject to trade secret protection will continue indefinitely.
- Miscellaneous. Nothing in these Terms will create or be deemed to create a partnership or joint venture or employment relationship or principal and agent between the parties. Neither party will have any liability to the other if the affected party does not fulfil its obligations due to an event outside the affected party’s reasonable control. Notices under will be in writing and delivered by registered means providing a receipt to us or you at your address in the relevant Order. Any provision of the Agreement held to be invalid under the applicable law, will not affect the validity of the remaining terms of the Agreement. Failure to enforce the Agreement does not waive a party’s right under the Agreement. The Agreement and any Order executed pursuant to it sets out the entire agreement between the parties and overrides any prior correspondence or representations and all other terms and conditions, including without limitation. The parties acknowledge that this Agreement has not been entered into in part or whole in reliance on any warranty, statement, promise or representation by the other party, except as set out in the Agreement. Except in the event of a transfer of all or substantially all its assets, neither party will assign or transfer its rights or responsibilities under the Agreement to any third party without the other party’s prior written consent.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means the power, directly or indirectly, to 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.
“Assessment” means products to assess talent performance and attributes of individuals offered by SHL or IBM.
“Candidate” means any assessed individual (including a potential or existing employee of one of our clients).
“Charges” means the Charges payable to us for the Products or Services purchased pursuant to the applicable Order.
“Customer”, “You” means a legal person that purchases Products or Services from us under an Order. If a license is extended to Customer’s Affiliate(s) under an Order, the term “Customer” shall include such Affiliates and will be subject to the Agreement.
“Customer Property” means any data, information, or other material provided by you or on your behalf to us (through software or other data collection activities) or disclosed to us during the delivery of the Products or Services.
“Confidential Information” means all information, in whatever form, furnished by one party to the other party orally or in writing that is identified as confidential or proprietary at the time of disclosure or that should reasonably be assumed to be confidential or proprietary by its nature, including, but not limited to trade, business secrets and other business information; any information of a commercial, operational, marketing, technical or financial nature; pricing; policies; information concerning employees, customers, vendors; research; development; know-how; designs; opportunities; methods and procedures; training materials and other information acquired or developed by us in connection with these Terms which is not already in the public domain, whether in written, printed, electronic, or other form, including all copies of such information; and any information concerning officers and employees or the affairs of either party.
Confidential Information excludes information: (i) known by the receiving party prior to disclosure; (ii) made publicly available other than as a result of disclosure by the receiving party in breach of these Terms; (iii) disclosed to the receiving party on a non-confidential basis from a third party the receiving party reasonably believes is not prohibited from disclosing such information; developed by the receiving party independently; or (v) required to be disclosed by law, regulation or court order provided that the receiving party: (a) if permitted, gives prompt notice to the disclosing party so it may contest such order; and (b) only discloses the minimum amount of Confidential Information necessary to comply with such order.
“Data Controller” means a person who determines the purposes for which and the manner in which any Personal Data is, or is to be, processed (collected, used, amended, retained, destroyed, etc.).
“Data Processor” means a person (other than an employee of the Data Controller) that processes Personal Data on behalf of the Data Controller.
“Intellectual Property Rights” means the various rights and property conferred under statute, common law, and equity in relation to patents, inventions, designs, copyrights, trademarks, trade names, business names, corporate names, logos, get up, circuit layouts, know-how, trade secrets and confidential information, and the right to have trade secrets and confidential information kept confidential, and all other intellectual property rights as defined by Article 2 of the World International Property Organisation Convention of July 1967; all applications for registration, extension, renewal, or otherwise in respect of the rights and property referred to in paragraph (a) of this definition; and all rights of action in respect of the rights and property referred to in paragraph (a) of this definition.
“Order” means a written agreement between you and us describing the Products and/or Services that you are purchasing and may be in the form of an order form, a statement of work, a change request, or other similar instrument.
“Order Term” means the period of time set stated in an Order during which you have the right to use the purchased Products and/or we perform the Services.
“Output” means the printed/electronic reports produced as part of the Services provided to you in relation to employees.
“PAL”, “Us”, “We”, “Our” means People Analytics Limited, company registered no. 05026524, with registered offices at 155-157 High Street, Aldershot, Hampshire, GU11 1TT.
“PAL Property” means all of the following without limitation created or owned by us, or our licensors, whether pre-existing or independently created during the Order Term: (i) all websites, software, tools, URLs and links, databases, designs, algorithms, user interface designs, architecture, class libraries, objects and documentation, network-design, know how, technology and source code and all portions, subsets or derivatives thereof, any improvements, modifications, upgrades or other changes thereto; and any and all derivative works; and (ii) all Intellectual Property Rights therein.
“Platform” means the hosted survey tool that we may use from time to time to manage surveys and their responses from participants.
“Product” means the assessment and any other hosted items set out in an Order.
“Product Author” means IBM, Salary.com, Qualtrics, or SHL.
“Qualified Subcontractors” means Feedback Works Limited SG House, 6, St Cross Road, Winchester, Hampshire SO23 9HX and / or any other qualified person as appropriate and as may be agreed between the parties from time to time.
“Qualtrics” means Qualtrics, LLC of 333 W River Park Dr. Provo, UT, United States, whose Privacy Terms can be found here: https://www.qualtrics.com/privacy-statement/
“Services" means the survey, analytics and feedback and other employee engagement services provided by us as set out in an Order.