CultureFactors Terms of Business
These terms and conditions apply to the purchase of CultureFactors products and services as set forth in a corresponding Order Form.
1. Agreement. These terms and conditions, combined with the terms contained in a corresponding Order Form (collectively the “Agreement”), shall govern the business relationship between CultureFactors Inc. (“CultureFactors”) and you (“Client”). CultureFactors and Client may be jointly referred to as the “Parties” or individually as “Party.” This Agreement supersedes all prior agreements and understandings between the Parties in connection therewith, and no amendment or variation created under this Agreement is valid or binding unless made in a writing executed by the Party or Parties to be bound.
2. Payment. All payments for products and services sold or delivered (the “Services”) under this Agreement shall be made in United States Dollars and shall be due and payable in full to CultureFactors within thirty (30) days of receipt, except for any amounts disputed by Client in good faith. Any late payment will bear interest at a rate of one percent (1%) per month compounded monthly.
3. Term and Termination.
a. Termination for Cause. Without prejudice to any of the other rights that a Party may have hereunder, either Party may terminate this Agreement immediately upon delivery of written notice to the other Party if: (i) a Party breaches any material term of this Agreement, including its confidentiality obligations; or (ii) the other Party becomes insolvent or has receivers or liquidators or trustees in bankruptcy appointed or enters into a scheme of arrangement with creditors.
b. Termination for Convenience. CultureFactors may terminate this Agreement at any time by giving at least 30 days’ notice in writing to Client.
c. Duties upon Termination. In the event this Agreement is terminated, Client shall pay CultureFactors for all work performed and expenses incurred prior to termination in accordance with the payment terms contained herein. Upon termination of this Agreement, or upon a Party’s earlier request, the other Party shall deliver to the requesting Party all of its property, including notes, memoranda, specifications, devices, formulas, records, files, lists, drawings, documents, models, equipment, property, and computer software, in whatever form (including electronic), and including any proprietary or Confidential Information, and shall provide certification of the same upon request by the requesting Party.
4. Confidentiality. Each Party may disclose (the “Disclosing Party”) Confidential Information to the other Party (the “Receiving Party”) in connection with the Parties’ business relationship.
a. Definition. “Confidential Information” shall mean the terms and conditions of this Agreement and all information marked as confidential or proprietary. Confidential Information shall also include, without limitation, intellectual property, trade secrets, know-how, inventions, software programs and source code and documentation, all data, forms, tests, testing instruments and surveys and other property licensed to CultureFactors, guides, training materials, research, business plans, methods, practices and strategies, processes, financial information and data, strategic and technical information, financial terms of this Agreement or any Order or Statement of Work hereunder, sales and marketing plans and projections, business plans, employee information, vendor information, products, product plans and information, pricing information, website content, any information not generally known to the public, and any information which a person should reasonably expect to be kept confidential. Confidential Information shall not include information that (i) was already known to or in the possession of the Receiving Party, as established by documentary evidence, prior to disclosure by the Disclosing Party; (ii) was disclosed to the Receiving Party from a source other than the Disclosing Party and who has the right to make such disclosure; (iii) is, was or becomes publicly available other than as a result of disclosure by the Receiving Party in breach hereof; (iv) is specifically approved in writing by the Disclosing Party for the Receiving Party to release; (v) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or other governmental body, provided that the Receiving Party shall give immediate notice to the Disclosing Party so that the Disclosing Party may seek a protective order or other appropriate remedy; or (vi) is developed independently by the Receiving Party without reference, in whole or in part, to the Confidential Information of the Disclosing Party. For sake of clarity, CultureFactors and its employees shall be free to use and employ their general skill, know-how and expertise and to use, disclose and employ any generalized ideas, concepts, methods, techniques or skills gained or learned during the course of any Order, assignment or engagement so long as they acquire and apply such information without the use or disclosure of any Confidential Information of Client.
b. Non-Use and Non-Disclosure. The Receiving Party agrees to:
i. Not disclose Confidential Information to any third party without the Disclosing Party’s prior written approval except its employees and agents (collectively “Receiving Party Personnel”) who have a need to know and who are under an obligation of confidentiality no less restrictive than herein;
ii. Maintain and take reasonable precautions to ensure that it and its Receiving Party Personnel maintain the confidentiality of all Confidential Information;
iii. Use the Confidential Information solely in connection with the Disclosing Party’s business relationship with the Receiving Party;
iv. Not modify, reverse engineer, disassemble, decompile or design around any Confidential Information of the Disclosing Party; and
v. Maintain the Confidential Information using the same degree of care it employs in maintaining its own proprietary and Confidential Information, but in no event less than a reasonable degree of care.
c. Personnel. Any Receiving Party Personnel having access to the Disclosing Party’s Confidential Information shall be subject to the same obligations as the Receiving Party and the Receiving Party shall be liable for any breach of such obligations by its Receiving Party Personnel.
d. Return. Upon termination of this Agreement, or upon the Disclosing Party’s earlier request, the Receiving Party shall deliver to the Disclosing Party all of the Disclosing Party’s Confidential Information, in whatever form (including electronic), that the Receiving Party or Receiving Party Personnel may have in its possession or control, without keeping any copies, duplicates, facsimiles, summaries, compilations, replications or reproductions thereof.
5. Intellectual Property
a. CultureFactors Property. Client acknowledges CultureFactors possesses certain copyrights, trademarks, patents, inventions, processes, know-how, trade secrets, data, databases, improvements, other intellectual properties and other assets (collectively “CultureFactors Intellectual Property”) that includes, without limitation, software, tools, tests, research, training manuals and programs, reports, report formats, products, product concepts and ideas and products in development, technical reports, publications, benchmark data, selection and assessment content and supporting materials (including test content and scoring protocols), technology and source code used to support the selection and assessment and other business processes, and all accompanying activities and materials and all portions, subsets, derivatives or enhancements thereof. Client agrees that any such CultureFactors Intellectual Property and any improvements, modifications, enhancements, upgrades or other changes thereto (collectively “CultureFactors Property”) are the sole and exclusive property of CultureFactors, that Client shall obtain no right, title or interest therein except for the license expressly set forth in this Agreement and that Client shall not use any CultureFactors Property or any property licensed to CultureFactors for any unauthorized or unintended purpose. Client further agrees that CultureFactors Property is not considered “Work for Hire” under this Agreement.
b. Client Property. Client shall retain exclusive ownership rights in and to all of Client’s property, which shall include Client’s content and data provided to CultureFactors, the data generated as a result of the Services, Client’s Confidential Information, and Client’s intellectual property.
c. License. CultureFactors grants to Client a non-exclusive, royalty-free, worldwide, revocable, non-transferable and non-assignable license to use certain CultureFactors Property as described and set forth in this Agreement, as well as test content and testing instruments and other property licensed to CultureFactors and as set forth in this Agreement, for Client’s internal business purposes only and for the duration of this Agreement. Client shall not sell, license, sublicense, transfer, assign, distribute, modify, duplicate, reproduce, copy, reverse engineer, recompile, decompile, disassemble, publish or display CultureFactors Property, or test content or testing instruments or other property licensed to CultureFactors, to any third party without the prior written permission of CultureFactors.
d. Benchmarking, Research and Development. Notwithstanding anything in this Agreement to the contrary, Client authorizes CultureFactors to use any data collected or generated in connection with this Agreement in establishing normative values for use in its business generally, and for validation, research and product development purposes, on condition that (i) CultureFactors aggregates and presents such data in anonymous form; and (ii) any disclosure of such data to third parties does not include, directly or by inference, any information identifying Client or any identifiable individual as the source of such data.
a. Claims Indemnified. Subject to the terms and conditions set forth in this Indemnification section, Client (the “Indemnifying Party”) shall defend, indemnify and hold harmless CultureFactors and its officers, directors, employees, shareholders, representatives, agents, successors and assigns (collectively the “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses, of whatever kind, including reasonable attorneys’ fees (collectively “Losses”), arising directly and proximately out of (i) any grossly negligent or more culpable act or omission of the Indemnifying Party or its officers, directors, employees and agents; and (ii) any actual or alleged infringement of any copyright, trademark, trade secret or patent arising out of the materials and property supplied by the Indemnifying Party or anyone on its behalf to the Indemnified Party.
b. Indemnification Procedures. The Indemnified Party shall give the Indemnifying Party notice of any losses or the discovery of facts on which the Indemnified Party intends to base a request for indemnification under this Agreement and shall fully cooperate with the Indemnifying Party in connection therewith. The Indemnifying Party shall assume, at its sole expense, the defense of any claim, lawsuit, action or other proceeding. At any time, the Indemnified Party may employ separate counsel to represent it provided that the Indemnified Party shall be solely responsible for the costs and expenses of any such separate counsel. Notwithstanding the foregoing, the Indemnifying Party shall not enter into any settlement without the prior written approval of the Indemnified Party, such approval which shall not be unreasonably withheld, delayed or conditioned. It shall not be unreasonable and the Indemnified Party shall have no obligation to approve any settlement that (i) awards any relief other than monetary damages; and (ii) does not contain on obligation on the part of the third party claimant to keep the settlement confidential.
7. Limitations of Liability. IN NO EVENT SHALL CULTUREFACTORS OR ITS LICENSORS BE LIABLE TO CLIENT OR ANY THRID PARTY UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS OR REVENUE, OR OPPORTUNITY COSTS, REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, COST, EXPENSE OR LOSS, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CULTUREFACTORS' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHICH SHALL INCLUDE ANY INDEMNIFICATION OBLIGATIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO CULTUREFACTORS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. CLIENT FURTHER AGREES THAT CULTUREFACTORS IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF CLIENT, INCLUDING CLIENT'S USE OF CULTUREFACTORS SELECTION, ASSESSMENT AND OTHER TESTS AND TOOLS AND OTHER TESTING INSTRUMENTS LICENSED TO CULTUREFACTORS (COLLECTIVELY "INSTRUMENTS"), THE INTERPRETATION OF THE RESULTS OF THE INSTRUMENTS BY EITHER PARTY, OR RESULTING DECISIONS THAT CLIENT MAKES, AND CLIENT AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CULTUREFACTORS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, REPRESENTATIVES, AGENTS, SUCCESSORS AND ASSIGNS AGAINST ANY AND ALL LOSSES (AS DEFINED IN SECTION 6) THAT ARISE OUT OF OR RESULT FROM SUCH ACTS OR OMISSIONS OF CLIENT, INCLUDING CLIENT'S USE OF THE INSTRUMENTS, THE INTERPRETATION OF THE RESULTS OF THE INSTRUMENTS, OR RESULTING DECISIONS THAT CLIENT MAKES.
8. Equitable Relief. The Parties recognize and acknowledge that any violation or threatened violation by a Party of any of the provisions in this Agreement will result in immediate and irreparable harm to the non-breaching Party, an injury for which there is no adequate remedy at law, and the non-breaching Party may move for any and all equitable relief including preliminary and permanent injunctions in any court of competent jurisdiction. The Parties further agree that any such injunctive relief is in addition to all other remedies and shall not preclude the non-breaching Party from seeking other available remedies as set forth in this Agreement or as otherwise available.
9. Warranties. CultureFactors hereby represents and warrants that (a) it has the authority to enter into this Agreement; and (b) it will act in compliance with all applicable laws. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS WARRANTIES SECTION NEITHER CULTUREFACTORS NOR ANYONE ON ITS BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY SUCH REPRESENTATION OR WARRANTY MADE BY CULTUREFACTORS OR ANYONE ON ITS BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS WARRANTIES SECTION OF THIS AGREEMENT. IN THE EVENT OF A BREACH OF THE WARRANTIES SET FORTH IN THIS WARRANTIES SECTION, CLIENT’S SOLE REMEDY IS THE RIGHT TO TERMINATE THIS AGREEMENT.
10. Relationship of Parties. Each Party shall act at all times hereunder as an independent contractor and nothing contained herein shall be deemed to create a partnership, employment relationship, agency, or joint venture between the Parties.
11. Assignment. Client may not assign, transfer or delegate any of its rights, obligations, benefits and interests under this Agreement without the express written consent of CultureFactors and any attempt at assignment shall be void.
12. Taxes. All amounts owed and due under this Agreement shall be exclusive of any tax imposed by any governmental authority. Client is responsible for the payment of all taxes, local, national, foreign or otherwise, in connection with all Services provided except for taxes based on CultureFactors’ net income.
13. Subcontractors. CultureFactors may subcontract the performance of any of its duties or obligations under this Agreement provided that it shall not be relieved of those duties or obligations hereunder.
14. Publicity. CultureFactors may use Client’s name and logo for the purpose of disclosing Client as a client of CultureFactors in its marketing materials or for use in a case or outcome study.
15. Other Terms:
a. Entire Agreement: This Agreement contains the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements and understandings between the Parties in connection therewith. No amendment or variation of or waiver of a right created under this Agreement is valid or binding on a Party unless made in a writing executed by the Party or Parties to be bound.
b. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Illinois without giving effect to the choice of law principles thereof. Each Party irrevocably submits to the exclusive jurisdiction of Illinois courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Services of process, summons, notice or other documents sent by registered mail, certified mail or overnight courier service to such Party’s address as set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
c. Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
d. Section Headings. Headings contained in this Agreement are for reference purposes only and shall not affect the construction or interpretation of this Agreement.
e. Force Majeure. No Party shall have any liability to the other Party, except any obligations to make payments to the other Party hereunder, if the affected Party does not fulfill its obligations to the other hereunder due to an event outside the affected Party’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, invasion, hostilities, terrorist threats or acts, riot or other civil unrest, government order or law, actions embargoes or blockades, actions by governmental authorities or national emergency.
f. Survival. The provisions of this Agreement, which by their terms, require acts and obligations of either Party after the expiration or termination of this Agreement, shall survive the expiration or termination of this Agreement.
g. Records. CultureFactors agrees to maintain sufficient and accurate records and books of account. All such records pertaining to any work performed under this Agreement shall be retained for a period of no less than three (3) years from the date of last payment for such work.
h. Severability. In the event that any term, condition or provision of this Agreement is for any reason declared or found to be illegal, invalid, ineffective, inoperable or otherwise unenforceable by any court of competent jurisdiction, it shall be modified by the court in order to render it effective preserving the Parties’ intent to the extent permissible or 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.
i. Mutual Drafting. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any Party.
j. Waiver. No terms or conditions of this Agreement shall be deemed to have been waived, nor shall any Party hereto be stopped from enforcing any provision of the Agreement, except by written instrument signed by the Party charged with such waiver or estoppel. Any written waiver shall not be deemed a continuing waiver unless specifically stated, shall operate only as to the specific term or condition waived, and shall not constitute a waiver of such term or condition for the future or as to any act other than specifically waived.
k. Notices. All notices or communications required or permitted to be given hereunder shall be in writing and shall be delivered by hand or sent, postage prepaid, by registered, certified or express mail or overnight courier service and shall be deemed given when so delivered by hand or, if mailed, three days after mailing (one business day in the case of express mail or overnight courier service) to the other Party at such address set forth on the Order Form. Either Party may from time to time change its address by giving the other Party notice of the change in accordance with this Section.
l. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed to be an original and all of which will together constitute one and the same instrument.