IMPORTANT NOTICE TO CUSTOMER:
These Customer Terms of Service (the “Agreement”) govern the customer use of the CultureHQ services. Customers (“Subscribers”) that use CultureHQ must abide by these terms.
1. SUBSCRIPTION FOR SERVICE.
(a) Subscription Grant. CULTUREHQ has developed a mobile- and browser-based software program to create, manage, and broadcast employee-generated content (such software and any updates to the software and related documentation that CULTUREHQ from time to time makes available during the term of this Agreement (the "CULTUREHQ Software") which is made available on a subscription basis only via the CULTUREHQ web and mobile application (the "Application") and hosted as a service (the "Service"). Subject to payment of all applicable fees and charges detailed in an order form (“Fees”), CULTUREHQ grants to Subscriber a limited, non-exclusive, non-transferable, non-sublicensable, subscription for all current and future Subscriber’s employees (regardless of location) to access the functionality of the CULTUREHQ Software made available on the Application and to use the CULTUREHQ Software through the Application for Subscriber business uses only.
(b) Restrictions on Use. Subscriber may not (i) make, have made, copy, reproduce, modify, adapt, alter, translate, or create derivative works of the CULTUREHQ Software; (ii) sublicense, distribute, sell, lease, rent, loan, or otherwise transfer the CULTUREHQ Software or Services to any third party; (iii) reverse engineer, decompile, disassemble, modify, or attempt to reconstruct, identify, or discover the CULTUREHQ Software, source code, or any underlying ideas or techniques of the Services, CULTUREHQ Software or source code; (iv) remove, alter, cover or obfuscate any copyright notices, trademarks, or other proprietary rights notices included in the CULTUREHQ Software and/or the Application; (v) use or attempt to use the Service or the CULTUREHQ Software to develop software or services comparable to the Service, or (vi) otherwise use the CULTUREHQ Software or Service except as expressly permitted hereunder.
(c) Subscriber Account. By subscribing to the Service, Subscriber acknowledges that Subscriber will establish an account with CULTUREHQ. Subscriber agrees to be responsible for all activities, charges, changes, and obligations actually incurred by Subscriber. Further, Subscriber agrees that security of Subscriber account information, including Subscriber user name and password, is Subscriber’s responsibility.
2. TERM, PAYMENT, and TERMINATION.
(a) Subscribers shall refer to Purchase Terms and Fees detailed in any fully executed order form regarding their unique terms and payment.
(b) CULTUREHQ may terminate this Agreement for a material breach that remains uncured for a period of thirty (30) days from notice of said breach to Subscriber. Subscriber will not receive any refund for payments already made by Subscriber in the event CULTUREHQ terminates for an uncured material breach.
(c) Subscriber may terminate this Agreement for a material breach that remains uncured for a period of thirty (30) days from notice of said breach to CULTUREHQ. Subscriber will receive a pro-rata refund for any pre-paid fees for the remaining unused Service fees from the effective date of termination.
(d) Upon termination of this Agreement, access to the Service will terminate. In the event of any such termination, CULTUREHQ will return or destroy (at Subscriber’s option) any Subscriber Data and/or Confidential Information in the possession of CULTUREHQ.
3. SUBSCRIBER REPRESENTATIONS AND COVENANTS; ACCURATE INFORMATION.
(a) Representations. Subscriber represents and warrants that: (i) Subscriber has all requisite power and authority to execute this Agreement and to perform Subscriber obligations hereunder, (ii) Subscriber is authorized to enter into this Agreement; (iii) Subscriber’s use of the Service is for Subscriber internal business or external branding purposes only, (iv) Subscriber has all rights necessary to copy, modify, display and perform and to allow others to copy, display and perform any Subscriber Data Subscriber creates and/or uploads to the Service, and (v) Subscriber not located in of any of the Office of Foreign Assets Control restricted countries.
(b) Covenants. Subscriber agrees to: (i) provide certain true, current, complete and accurate information about Subscriber as required by the subscription process; and (ii) maintain and update according to our modification procedures the information Subscriber provided to CULTUREHQ when subscribing to the Service as needed to keep such information current, complete and accurate, provided the aforementioned modification procedures are provided to Subscriber. CULTUREHQ may rely on this information to send Subscriber important information and notices regarding Subscriber account and the Service. Subscriber further agrees that (w) Subscriber will not knowingly or negligently transmit information that contains viruses or other computer programming defects to or through the Application; (s) Subscriber will comply with all requirements of law, to the extent such requirements of laws by their terms are expressly applicable to the services contemplated by this Agreement, (y) Subscriber will not use the Service for any illegal or illicit activities, and (z) Subscriber will not use the Service in connection with any bulk email, any content or code that infringes the Intellectual Property Rights of any third party, any threatening or obscene materials, or any defamatory, libelous, or other actionable content or statements.
4. SUBSCRIBER DATA.
(a.) Any data, information, code, media or other files provided by Subscriber and hosted by CULTUREHQ, located on the CULTUREHQ servers, or hosted by a third party on behalf of CULTUREHQ in connection with the Service (collectively, the "Subscriber Data") and the accuracy, quality, integrity legality, reliability, appropriateness and intellectual property ownership or right to use such Subscriber Data is Subscriber’s sole responsibility. CULTUREHQ has full and free access to Subscriber’s account, Subscriber Data and use of the Service solely for purposes of logging, reviewing errors created by or during the use of the Service, and monitoring and facilitating Subscriber’s use of the Service, in each case, at CULTUREHQ’s convenience, without prior notice, as described in CULTUREHQ’S Acceptable Use Policy and Privacy Policy. In the event that the terms of the Acceptable Use Policy or Privacy Policy conflict with the terms of this Agreement, the terms of this Agreement shall govern. Any changes to the Acceptable Use Policy or Privacy Policy as of the Effective Date of this Agreement must be provided to Subscriber thirty (30) days in advance prior to taking effect. CULTUREHQ’s right to review Subscriber Data does not impose on it any obligations or liability with respect to (i) errors or failure in the Subscriber Data, (ii) any violations of third-party rights with respect to such Subscriber Data.
(b.) No Subscriber Data, or any part thereof, shall be sold, assigned, leased or otherwise disposed of to third parties by CULTUREHQ or commercially exploited by or on behalf of CULTUREHQ. Upon Subscriber's request, the termination or expiration of this Agreement for any reason (including termination for cause) or, with respect to any particular Subscriber Data, on such earlier date that the same shall be no longer required by CULTUREHQ in order to render the Services hereunder, Subscriber Data (including copies thereof) shall be promptly returned to Subscriber by CULTUREHQ in an electronic form consistent with general industry practices that is reasonably acceptable to Subscriber or, if Subscriber so elects, shall be destroyed by CULTUREHQ. Subscriber Data shall not be utilized by CULTUREHQ for any purpose other than that of rendering the Services under this Agreement. Moreover, in no event shall Subscriber Data be stored or accessed by CULTUREHQ outside of the United States.
(c.) CULTUREHQ shall have in place and will maintain throughout the term physical, electronic, and procedural safeguards, security provisions and controls that are reasonably designed to maintain and protect the confidentiality, integrity and availability of all Subscriber Data, any personally identifiable information, Subscriber content, and other Subscriber confidential information.
(d) CULTUREHQ shall: (i) not permit unauthorized persons or entities to access Subscriber’s account, without Subscriber's express written authorization, and any such actual access will be undertaken solely in conformance with such authorization; (ii) use all reasonable security measures so as to minimize the threat of unauthorized access to Subscriber’s account; (iii) use generally recognized, up-to-date Malicious Code (defined below) detection or scanning programs to protect Subscriber’s account; and (iv) immediately notify Subscriber in the event that CULTUREHQ discovers an unauthorized access or Malicious Code, take immediate steps to address such issue, and follow Subscriber’s reasonable instructions with respect thereto. In the event Malicious Code is found to have been introduced by CULTUREHQ to Subscriber’s account, CULTUREHQ will, at its own expense, assist Subscriber in reducing the effects of the Malicious Code and, if the Malicious Code causes a loss of operational efficiency or loss of data, assist Subscriber in mitigating losses and restoring data to the extent practicable. For purposes herein “Malicious Code” means any feature, routine or device that is intended or designed to, either automatically, upon the occurrence of a certain event, upon the taking of or failure to take a certain action, or at the direction or control of any person or entity: (i) disrupt the operation of any products, services, networks or systems; (ii) cause any products, services, networks or systems to be destroyed, altered, erased, damaged, or otherwise made inoperable; or (iii) permit any person or entity to take control of, or destroy, alter, erase, damage, or otherwise render inoperable any portion of the products, services, networks or systems. Malicious Code includes any computer virus, worm, trap door, back door, time bomb, malicious program, or mechanism such as a software lock or routine for password checking, CPU serial number checking, or time dependency, whether introduced by the personnel of CULTUREHQ or its affiliates or any third party and that could hinder Subscriber’s freedom to fully exercise its rights to any portion of its products, services, networks or systems.
5. OWNERSHIP. Except as otherwise set forth herein, all right, title, and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) all divisions, continuations, reissues, renewals, and extensions thereof now existing or hereafter filed, issued, or acquired; (v) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software, and (vi) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Service ("CULTUREHQ Intellectual Property Rights") are owned by CULTUREHQ or its licensors, and Subscriber agrees to make no claim of interest in or ownership of any such CULTUREHQ Intellectual Property Rights. Subscriber acknowledges that no title to the CULTUREHQ Intellectual Property Rights is transferred to Subscriber, and that Subscriber does not obtain any rights, express or implied, in CULTUREHQ or its licensors' Intellectual Property Rights, other than the non-exclusive rights expressly granted in this Agreement. Subscriber agrees not to reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes other than Subscriber internal business purposes any of the Service (or portion thereof) without the prior express written consent of CULTUREHQ. For the avoidance of doubt, Subscriber retains ownership of the intellectual property rights in its pre-existing materials, including, without limitation, Subscriber Data, and any derivatives or modifications thereof which is provided to CULTUREHQ pursuant to this Agreement.
6. TERMS OF CONFIDENTIALITY. The parties agree not to permit access to or to disclose the other party’s Confidential Information, except to its authorized employees and contractors who are bound by confidentiality agreements with terms no less restrictive than those of this Section 8 and who need to use or have access to the other party’s Confidential Information as permitted by this Agreement. A receiving party shall use at least the same degree of care in protecting the other party’s Confidential Information as such party generally exercises in protecting its own most valuable proprietary information and shall inform its employees having access to the Confidential Information of its confidential nature. In no event shall a party use less than a reasonable degree of care in protecting Confidential Information. “Confidential Information” includes documents, data, software and information which, when provided by one party to the other: a) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; b) are disclosed orally or visually, identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within 10 days; or c) a reasonable person would understand to be confidential or proprietary at the time of disclosure. Notwithstanding the foregoing, the receiving party shall have no obligation of confidentiality with respect to any information which: (a) is already known to the receiving party at the time of disclosure; (b) is or subsequently becomes publicly available through no wrongful act of the receiving party; (c) is disclosed or provided to the receiving party by a third party without restriction; or (d) is developed independently by the receiving party without use of or access to the disclosing party’s Confidential Information.
7. DISCLAIMER; LIMITATION OF LIABILITY.
(a.) CULTUREHQ shall maintain availability of the CULTUREHQ Software and Application at a rate of 99.9%, measured monthly, excluding weekends, holidays, scheduled maintenance, emergency maintenance (by CULTUREHQ or a third-party provider), or due to other causes beyond CULTUREHQ’s reasonable control. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND CULTUREHQ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED.
(b.) EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 OR LIABILITY ARISING FROM CULTUREHQ’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA OR USE OF DATA OR INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
(c.) EXCEPT FOR A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 OR LIABILITY ARISING FROM CULTUREHQ’S INDEMNITY OBLIGATIONS SET FORTH IN SECTION 8, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL FEES PAID BY SUBSCRIBER TO CULTUREHQ UNDER THIS AGREEMENT.
8. INDEMNIFICATION. If a third party makes a claim against Subscriber), that any information, design, specification, instruction, software, data, or material (“Material”) furnished by CULTUREHQ and used by the Subscriber infringes its intellectual property rights, CULTURE HQ, at its sole cost and expense, will defend Subscriber against the claim and indemnify Subscriber from all damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by CULTUREHQ, provided Subscriber:
(i) notifies CULTUREHQ promptly in writing, not later than 30 days after Subscriber receives notice of the claim (or sooner if required by applicable law);
(ii) gives CULTUREHQ sole control of the defense and any settlement negotiations; and
(iii) gives CULTUREHQ the information, authority, and assistance CULTUREHQ needs to defend against or settle the claim.
9. INTENTIONALLY OMITTED
10. TECHNICAL SUPPORT. CULTUREHQ will make available Subscriber support and technical support regarding the Service.
11. INTENTIONALLY OMITTED.
12. RIGHT OF REFUSAL. CULTUREHQ expressly reserves the right, in its sole discretion, to reject, refuse, deny or cancel any of the purchase of the Service for any reason, whatsoever. The failure of CULTUREHQ, at any time or from time to time, to require Subscriber to perform Subscriber’s obligations hereunder will not affect its right to enforce any provision of this Agreement at a subsequent time, and the waiver of any rights arising out of any breach will not be construed as a waiver of any rights arising out of any prior or subsequent breach.
13. NOTICES AND ANNOUNCEMENTS. Except as expressly provided otherwise herein, all notices to CULTUREHQ must be in writing, delivered by email, and sent to brian@culturehq.com.
14. SEVERABILITY. Subscriber agrees that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and, to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.
15. ASSIGNMENT. Neither may assign this Agreement, in whole or in part, to any third party without the prior written consent of the other party; provided, however, a party may assign this Agreement to an entity that acquires all or substantially all of party’s assets (by merger, asset acquisition, or otherwise) upon written notice to the other party.
16. GOVERNING LAW; WAIVER OF JURY TRIAL. This Agreement will be construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its choice of law provisions. Subscriber irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement will be brought and determined in federal court located in the Commonwealth of Massachusetts (or, if such federal court lacks jurisdiction there over, in the state courts located in Massachusetts), and Subscriber hereby consents to personal jurisdiction and venue in such courts.
17. INTERPRETATION OF THIS AGREEMENT. The parties desire that this Agreement be construed according to its terms, in plain English, without constructive presumptions against the drafting party, and without reference to the section headings.
18. EXPORT RESTRICTIONS AND COMPLIANCE WITH LAWS. Subscriber agrees that Subscriber is prohibited by law from exporting to certain countries and will comply with all applicable export regulations if exporting to another country, including any applicable prohibition on exports to certain countries. Subscriber further agrees to comply with, and Subscriber will be deemed to fully understand and be current on, the export and trade restrictions with certain foreign countries as regulated by the Office of Foreign Assets Control, and other applicable export laws. Both parties agree to comply with all applicable laws in connection with obligations of each party contemplated by this Agreement, including, without limitation, those related to data privacy, and the use, security and storage of personal information.
19. FORCE MAJEURE. CULTUREHQ will not be liable for any delay or failure of performance, and no delay or failure of performance will constitute a default or give rise to any liability for damages if such delay or failure is caused by causes beyond CULTUREHQ’s control, including, without limitation, acts of God, war, terrorism, and civil disturbance. The aforementioned shall not be interpreted to diminish CULTUREHQ’s obligation to ensure throughout the term physical, electronic and procedural safeguards, security provisions and controls.
20. SURVIVAL. Provisions of this Agreement which by their nature are intended to survive termination of this Agreement will survive any termination of this Agreement, including but not limited to Sections 1(b), 5 through 9, 13 and 17 through 22 of this Agreement.
21. ENTIRE AGREEMENT. This Agreement (including any terms incorporated by reference) constitutes the entire agreement and understanding between the parties with respect to the subject matter of this Agreement, and there are no understandings or agreements between the parties other than those that are expressed in this Agreement.
