PARTIES

These Terms and Conditions are made a part of the SaaS Services Agreement (the “Agreement”) executed by and between Customer and Vendor and incorporated by reference.

NOW, THEREFORE,

In consideration of the premises set forth therein and herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties agree as follows:

1. Overview

The Customer desires access to the Engagedly Software and additional Services of Vendor, and Vendor desires to grant access to the Engagedly Software and provide additional Services (if any) as specified in the initial Work Order (“Work Order”) executed by the parties.

(a) Definitions

Affiliate: An entity that controls, is controlled by or is under common control with a Party, either directly or indirectly through one or more other entities that control, are controlled by, or are under common control with that Party. The term “control” (including the terms “controlling,” “controlled by,” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity through the ownership of voting securities.

Agreement: Collectively, the SaaS Services Agreement executed by and between Customer and Vendor, these Terms and Conditions, the Work Order, and any executed changes thereto, and the Policies (as defined below), each incorporated herein by reference.

Authorized User: Each person who is authorized by Customer to have administrative privileges to access and use the Engagedly Software under the Customer’s account. An Authorized User may be an employee, contractor, consultant, or other agent of Customer.

Content: Includes, without limitation, information, data, text, photographs, videos, audio clips, written posts and comments, software, scripts, graphics, and interactive features generated, provided, or otherwise made available on or through the Engagedly Software and Services.

Documentation: Vendor’s user manuals, handbooks, guides, and end user documentation relating to the Services and the Engagedly Software provided by Vendor to Customer either electronically or in hard copy form.

Policies: Vendor’s current written policies available through the Site on technical and administrative matters, including the Privacy Policy.

Privacy Policy: Vendor’s Policy regarding data privacy practices available on the Site.

Site: The Engagedly website at https://engagedly.com/.

Engagedly Platform: The Site, and/or any other means of accessing and using the Engagedly Software.

Engagedly Software: The software developed and owned by Vendor, known as “Engagedly,” which provides talent management, performance review, and employee engagement services for employer and employee users.

2. Project and Services

Subject to the terms and conditions of this Agreement, Vendor shall provide Customer with access to and use of the Engagedly Software, and shall perform certain additional services (if any) as specified in the Work Order, including, without limitation, support, customization, training, and/or implementation (the “Services”). The Parties may add or change the Services effective when both Parties sign a written document, such as an additional or revised Work Order. The Services represented by the Work Order or other logical grouping is a “Project”. In the event of any ambiguity or conflict between a provision of the Policies and the terms of this Agreement, the terms of this Agreement shall govern.

3. Customer Responsibilities

Customer is responsible and liable for all uses of the Services and Documentation resulting from user access to the Engagedly Software by Customer, its Affiliates, and Authorized Users (or non-authorized users), directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Engagedly Software and shall cause Authorized Users to comply with such provisions.

(a) Customer Affiliates

Customer shall act for and on behalf of all of Customer’s Affiliates with respect to all matters relating to this Agreement, including granting any approval, acceptance, or consent, providing or receiving any notice, entering into any modification, exercising any right of termination, and any other action required or permitted by this Agreement. Customer agrees that it shall be responsible for the performance of all obligations of its Affiliates under this Agreement and for causing each such Affiliate to comply with all applicable provisions of this Agreement.

(b) No Reverse Engineering

Customer agrees not to copy, distribute, modify, display, decompile, disassemble, or reverse-engineer the Services or Vendor Materials (defined below), including, without limitation, the Engagedly Software, or combine or merge them with any other product, service, or materials, or attempt to derive the source code or underlying ideas, inventions, or algorithms for the foregoing.

(c) Compliance with Policies and Applicable Law

Customer represents, covenants, and warrants that Customer, including Customer’s Affiliates and Authorized Users, will use the Services and Engagedly Software only in compliance with these Terms and Conditions, Vendor’s standard published Policies then in effect, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action by a third-party that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.

4. Service Level Support

Vendor shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Schedule 1.

5. Fees

6. Grant of License

Subject to Vendor’s continued timely receipt of fees owed by Customer during the Term of the Agreement, Vendor grants Customer a limited, revocable, non-exclusive, non-transferable, and worldwide right and license for Customer and Customer’s Users to access and use the Platform in accordance with the terms of the Agreement and Vendor’s Policies, as amended from time to time, solely in connection with the Services and solely for Customer’s own internal business purposes (“SaaS License”).

(a) Limitations

Use, reproduction, modification, distribution, or storage of the Engagedly Software, Documentation, Confidential Information, Vendor Content, or any other Vendor Materials (as defined below), for any purpose other than using the Services and Engagedly Software is expressly prohibited without prior written permission from the Vendor. The Customer shall not sell, license, rent, or otherwise use or exploit the Engagedly Software, Documentation, Confidential Information, Vendor Content, or any other Vendor Materials, except to its auditors or attorneys, who shall be subject to a confidentiality and nondisclosure obligation no less strict than those contained herein, for commercial use or in any way that violates any third-party right. The Customer shall not grant third parties access to the Engagedly Software, Documentation, Confidential Information, Vendor Content, or any other Vendor Materials for resale or distribution. Notwithstanding the foregoing, the license granted herein also includes the right for Customer’s Affiliates and their respective employees to use the Engagedly Software, Documentation, Confidential Information, Vendor Content, or any other Vendor Materials. Customer’s Affiliates are entitled to all rights, benefits, and protections granted to Customer pursuant to this Agreement.

7. Ownership

(a) Vendor Materials

Except as specifically permitted in this Agreement, Customer agrees to keep confidential and not to disclose to any third party, Vendor’s Confidential Information, Vendor’s software, including, without limitation, the Engagedly Software, the Content, Documentation, Services, any technology, know-how, any other intellectual property, and all other non-public business or technical information relating to the foregoing (collectively, the “Vendor Materials”), which Customer acknowledges constitute Vendor’s copyrighted works, Confidential Information, and trade secrets. Title to the Vendor Materials is at all times owned by Vendor, along with all worldwide patent, copyright, and other intellectual property rights and all trademarks, service marks, and trade names used with the Vendor Materials, together with all associated goodwill. All rights not expressly granted to Customer are reserved by Vendor. In addition, Vendor shall exclusively own and have the right to freely use all ideas, inventions, feedback, suggestions, improvements, enhancements, modifications, and other developments relating to the Services, the Engagedly Software, and/or any other Vendor Materials (collectively “Improvements”) suggested or created by either Party, alone or jointly with others, in connection with this Agreement, without any obligation to obtain Customer’s consent or pay any compensation, provided such Improvements do not contain Customer Materials or Customer Confidential Information or Information Systems.

(b) Customer Materials

Notwithstanding anything to the contrary, Customer shall own and retain all right, title, and interest in the Customer Materials, including all intellectual property rights therein. “Customer Materials” means any documents, data, know-how, methodologies, functional specifications, software, and other materials provided to Vendor by Customer, including without limitation, Customer’s Confidential Information and Information Systems. “Information Systems” means Customer’s information systems, including any hardware and software owned by or licensed to Customer for use in the conduct of its business.

8. Third-Party Sites

The Services may permit Customer to link to other websites, resources, or online services (collectively, “Third-Party Sites”). Vendor does not own or control any of the Third-Party Sites. Vendor does not endorse or vouch for any Vendor users, third parties, or the information they share on the Service or the Third-Party Sites. Customer is responsible for all information that it receives, posts, shares, or analyzes on or via Vendor, or otherwise. Vendor does not verify the accuracy of any information provided by Third-Party Sites or other users. Any agreement between Customer and a Third-Party Site is not modified nor affected by this Agreement with Vendor. Customer hereby acknowledges and agrees that Vendor shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with Customer’s use of or reliance on any Third-Party Site, and Customer waives any claim against Vendor with respect to Third-Party Sites.

9. Term

The initial term of this free trial Agreement shall begin on the Effective Date and will continue for a period of 180 days from the Effective Date.

10. Termination

(a) Termination by Vendor

Vendor may terminate this Agreement upon written notice to Customer in the event of Customer’s (i) material breach of the Policies; provided, however, that Customer shall have ten (10) days to cure such breach following Vendor’s written notice.

(b) Termination With or Without Cause

Either Party may terminate this Agreement upon providing written notice to the other Party. Such termination shall take effect immediately.

(c) Effect of Termination

Immediately upon any termination of this Agreement, all rights and duties of Parties toward each other under the Agreement and Work Order shall cease as of the effective date of termination.

11. Confidentiality and Nondisclosure.

Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business or information that is of such a nature as customarily would be confidential between business parties (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Vendor includes, without limitation, the Engagedly Software, Content, Documentation, and any other non-public information regarding features, functionality, and performance of the Services Engagedly Software. Confidential Information of Customer includes non-public data provided by Customer to Vendor, including, without limitation, information of Customer’s individual users, including personal information, to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. Vendor specifically agrees that any Customer Data disclosed or furnished to Vendor will be held in confidence by Vendor and will not be reproduced or disclosed to others.

(a) Exclusions

The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (i) is or becomes generally available to the public through no fault of Receiving Party, or (ii) was in its possession or known by it prior to receipt from the Disclosing Party, or (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.

(b) Compelled Disclosure

In the event that Receiving Party is requested or required, by court or administrative or regulatory order, or by deposition, interrogatories, requests for information or documents in legal proceedings, subpoena, civil investigative demand or other similar process, to disclose any of the Disclosing Party’s Confidential Information or with respect to Customer, Customer Data, Receiving Party shall provide the Disclosing Party with prompt written notice of any such request or requirement prior to the disclosure of Disclosing Party’s Confidential Information or with respect to Customer, Customer Data, so Disclosing Party may seek a protective order or other appropriate remedy to prohibit or to limit such disclosure. If, in the absence of a protective order, Receiving Party or any of its Representatives are nonetheless compelled to disclose Confidential Information, Receiving Party may, without liability hereunder, disclose only such portions of the Confidential Information that are legally required to be disclosed, and nothing more. Receiving Party shall advise the Disclosing Party of the Confidential Information which will be disclosed and to whom it will be disclosed prior to making such disclosure.

12. Vendor Use of Customer Data

Customer grants Vendor a limited, worldwide, non-exclusive license to receive, store, process, modify, and display Customer Data for the sole and exclusive purpose of providing the Services for Customer’s purposes during the Term of this Agreement and for no other purpose. In addition, Customer grants Vendor a limited, worldwide, non-exclusive, transferable, perpetual, irrevocable license to anonymize the Customer Data by removing Personal Information (as defined below) from the Customer Data (“Anonymized PI Data”), and adding the anonymized Data to other Anonymized PI Data developed or maintained by Vendor (the “Anonymized Data License”). Vendor is required to remove any personal information from Customer Data before using it to enhance its Services. Vendor may only be used Anonymized PI Data internally to help facilitate improvements to the Services provided to Customer. For purposes of this Agreement, “Personal Information” means any non-public information that can be used to identify an individual person. The remainder of the Anonymized PI Data includes metadata about how the Services are used and other non-personal information. Vendor shall keep and maintain Customer Data, excluding the Anonymized PI Data, in strict confidence as Customer’s Personal Information, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss, and in no event less than a reasonable standard of care.

13. Warranty

(a) Vendor warrants that the Services will be provided in a good, professional, and workmanlike manner, and in accordance with prevailing industry standards. The Vendor further commits to maintaining the Services to minimize errors and interruptions, performing the implementation of the Services in a good, professional, and workmanlike manner according to industry standards. The Services will be substantially similar in functionality throughout the Term as those available on the Work Order Effective Date. The functionality of the Services shall not be degraded at a minimum. Vendor warrants that the Services meet the requirements described in the Work Order or other ancillary documentation. Customer must notify Vendor in writing if it believes the Services or deliverables do not conform to these warranties. If Vendor is unable to correct any nonconformities within a reasonable period, not exceeding thirty (30) days, Customer may terminate this Agreement and the applicable Work Order. In such cases, Vendor shall refund a pro-rata portion of Services fees paid by Customer for the then-current Term within thirty (30) days of termination. Services may be temporarily unavailable for scheduled or unscheduled maintenance, but Vendor shall provide advance notice of any scheduled service disruption.

(b) Vendor warrants the use of commercially available anti-virus software to ensure that the Services do not contain any Unauthorized Code designed to permit unauthorized access, intrusion, disabling, disruption, erasure, or interference with the Services or Customer’s use.

14. Security

Vendor shall maintain appropriate administrative and technical safeguards for the protection, confidentiality, and integrity of Customer Data. Following termination or expiration of this Agreement, Vendor agrees to provide Customer access to its account and Customer Data for 120 days to allow export or backup. Vendor will support Customer in this process. After this period, Vendor shall immediately remove or delete Customer’s account and Customer Data, unless technical issues are reported within this timeframe. Vendor shall provide written certification of the deletion or destruction of Customer Data within thirty (30) days of removal.

15. Disclaimers

The services, including the Engagedly software, are provided “as is” and “as available.” Vendor disclaims all other representations or warranties, whether express or implied, including any warranties of merchantability, fitness for a particular purpose.

16. Limitation of Liability

Except for damages or losses arising from: (a) either party’s breach of confidentiality or indemnification obligations; or (b) vendor’s use of customer data, the entire liability of either party for any claim or action relating to the services shall not exceed the amounts paid by customer to vendor under this agreement for the twelve (12) month period preceding the initial filing of the claim or action. This limitation does not apply to claims related to willful, intentional, reckless, or grossly negligent conduct.

17. Independent Contractor

Vendor is an independent contractor for all employee benefit purposes. Nothing in this Agreement creates an employment relationship between the Parties. Vendor is solely responsible for taxes, withholdings, and other statutory obligations.

18. Indemnification

Customer shall indemnify, defend, and hold harmless the Vendor, its Affiliates, and their respective officers, directors, shareholders, employees, and agents (each, a “Vendor Indemnitee(s)”) against any and all losses, liabilities, damages, and reasonable court costs (including reasonable attorneys’ fees) arising out of or related to a third-party claim, action, or allegation brought by an unrelated third party against any Vendor Indemnitee. Such claim shall allege that the Customer’s Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates the third party’s intellectual property rights. This indemnification also covers any third-party claim, action, or allegation based on Customer’s, or Customer’s Affiliate’(s) or any Authorized User’s: (i) negligence or willful misconduct; (ii) use of the Services and/or Engagedly Software in a manner not authorized by this Agreement; (iii) use of the Services and/or Engagedly Software in combination with data, software, hardware, equipment, or technology not provided by Vendor or authorized by Vendor in writing; or (iv) modifications to the Services and/or Engagedly Software not made by Vendor, provided Customer is solely in charge of the defense or settlement of the claim using counsel chosen and paid for by Customer. However, any settlement of a claim may not assess liability against Vendor without Vendor’s prior written permission, which permission may be refused in Vendor’s sole discretion. Vendor may choose to employ counsel in an advisory capacity to Customer’s counsel for any such claim at Vendor’s sole cost and expense.

18(b) Indemnification

Vendor shall indemnify, defend, and hold harmless the Customer, its Affiliates, and their respective officers, directors, shareholders, employees, and agents (each, a “Customer Indemnitee(s)”) against any and all losses, liabilities, damages, and reasonable court costs (including reasonable attorneys’ fees) arising out of or related to a third-party claim, action, or allegation brought by an unrelated third party against any Customer Indemnitee. Such claim shall allege that the Vendor’s Data, or any use of the Vendor’s Data in accordance with this Agreement, infringes or misappropriates the third party’s intellectual property rights. This indemnification also covers any third-party claim, action, or allegation based on Vendor’s, or Vendor’s Affiliate’(s): (i) negligence or willful misconduct; or (ii) Vendor’s use or disclosure of Customer’s Confidential Information in violation of this Agreement; or (iii) Vendor’s breach of its warranty with respect to suitable anti-virus software (Paragraph 13(b) of this Agreement); or (iv) Vendor’s failure to maintain appropriate administrative and technical safeguards designed for the protection, confidentiality, and integrity of Customer Data or Vendor’s failure to provide Customer with access to Customer’s Data as required by this Agreement. Vendor is solely in charge of the defense or settlement of any claims using counsel chosen and paid for by Vendor, but any settlement of a claim may not assess liability against Customer without Customer’s prior written permission, which permission may be refused in Customer’s sole discretion. Customer may choose to employ counsel in an advisory capacity to Vendor’s counsel for any such claim at Customer’s sole cost and expense.

19. Survival

Certain provisions and obligations, including those related to customer responsibilities, fees, ownership, termination effects, confidentiality, vendor use of customer data, disclaimers, limitation of liability, independent contractor status, indemnification, dispute resolution, and miscellaneous clauses, will survive termination or expiration of this Agreement.

Dispute Resolution

The Parties will attempt to resolve any dispute through negotiations. If not resolved within thirty (30) days, the parties will resolve the dispute through mediation. If mediation fails, outstanding issues will be submitted to final and binding arbitration in accordance with the rules of the American Arbitration Association. The Parties agree that the laws of Delaware shall govern this Agreement, and any arbitration shall be conducted in Delaware.

20. Force Majeure; Excused Performance

Neither party shall be liable for delays or any failure to perform its rights or responsibilities pursuant to the Agreement due to causes beyond its reasonable control (a “force majeure event”). Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed party must notify the other party in writing promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance.

21. Miscellaneous

Neither party may transfer any of its rights under this Agreement without prior written consent of the other party, which will not be unreasonably withheld. This Agreement is the entire agreement between the Parties with respect to the subject matter hereof and no changes or modifications or waivers to this Agreement shall be effective unless in writing and signed by the Parties. In the event that any provision of this Agreement is determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of law provisions thereof. This Agreement may be executed in counterparts, each of which when executed and delivered (including by electronic signature, facsimile or .PDF) shall be deemed to be original.

22. Logo Use

Company shall have the right to use Client’s company logo (“Logo”) on Company’s website and to promote Company’s client relations for future Company work. The Logo will not be used in a manner that implies sponsorship or endorsement of any company, product, trademark, person, or service by the Client.