IMPORTANT — READ CAREFULLY: BY CREATING AN ACCOUNT OR BY UTILISING THE COGNISESS PLATFORM YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
Please read the following Subscription Agreement and Terms and Conditions, which relate to information regarding general use of our software platform and services. By using our software platform, you are agreeing to these Terms and Conditions whether as a guest, candidate, employee, registered user or subscriber.
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR,FOR FREE SERVICES, BY USING SUCH SERVICES, YOU AGREE TOTHE TERMSOF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on November 27, 2017. It is effective between You and Us as of the date of Your accepting this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means COGNISESS services or functionality that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information obtained by Cognisess Ltd from publicly available sources or third party content providers and made available to You through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means the applicable Service’s Terms and Privacy documentation, and its usage guides and policies, as updated from time to time, accessible via www.cognisess.com or login to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, for example, the yondur located at http://www.yondur.com/
“Non-Cognisess Application” means a Web-based, mobile, offline or other software process or functionality that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as Cognisess Labs or by a similar designation.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Free Services” means Services that Cognisess makes available to You free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under an Order Form or provided to You free of charge (as applicable) or under a free trial, and made available online by Us, including associated Cognisess offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-Cognisess Applications.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, candidates, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the cognisess.com company described in Section 13 (Whom You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.
“Your Data” means electronic data and information submitted by or for You to the Services, excluding Content and Non Cognisess Applications.
2.1 Free Trial. If You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or
(c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION);
THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIODOR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 10.1 (INDEMNIFICATION BY US), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND COGNISESS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, COGNISESS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COGNISESS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
Please review the applicable Service’s Documentation during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
2.2 Free Services. COGNISESS may make Free Services available to You. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 2.2 (Free Services) and any other portion of this Agreement, this section shall control. Please note that Free Services are provided to you without charge up to certain limits as described in the Documentation. Usage over these limits requires your purchase of additional resources or services. You agree that COGNISESS, in its sole discretion and for any or no reason, may terminate your access to the Free Services or any part thereof. You agree that any termination of your access to the Free Services may be without prior notice, and you agree that COGNISESS will not be liable to you or any third party for such termination.
You are solely responsible for exporting Your Data from the Free Services prior to termination of Your access to the Free Services for any reason, provided that if We terminate your account, except as required by law We will provide you a reasonable opportunity to retrieve Your Data.
NOTWITHSTANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 10.1 (INDEMNIFICATION BY US), THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND COGNISESS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE FREE SERVICES. WITHOUT LIMITING THE FOREGOING, COGNISESS AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE FREE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COGNISESS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
3.1 Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and any applicable Order Forms, (b) provide applicable COGNISESS standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-COGNISESS Application, or denial of service attack.
3.3 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.4 Beta Services. From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Non-COGNISESS Applications and Content, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-COGNISESS Applications with which You use Services or Content.
4.4 Usage Restrictions. You will not (a) make any Service or Content available to anyone other than Users, or use any Service or Content for the benefit of, anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or
include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-COGNISESS Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-COGNISESS Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use of any of Our Services in a manner that violates Our Acceptable Use and External Facing Services Policy , or to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) disassemble, reverse engineer, or decompile a Service or Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.5 Removal of Content and Non-COGNISESS Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-COGNISESS Application hosted on a Service by You may violate Our Acceptable Use and External-Facing Services Policy or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-COGNISESS Application or modify the Non-COGNISESS Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-COGNISESS Application until the potential violation is resolved.
5.1 We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-COGNISESS Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-COGNISESS provider, product or service is solely between You and the applicable Non-COGNISESS provider. We do not warrant or support Non-COGNISESS Applications or other Non-COGNISESS products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in an Order Form.
5.2 Non-Cognisess.com Applications and Your Data. If You choose to use a Non-COGNISESS Application with a Service, You grant Us permission to allow the Non-COGNISESS Application and its provider to access Your Data as required for the interoperation of that Non-COGNISESS Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-COGNISESS Application or its provider.
5.3 Interoperation with Non-COGNISESS Applications. The Services may contain features designed to interoperate with Non-COGNISESS Applications. To use such features, You may be required to obtain access to such Non-COGNISESS Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-COGNISESS Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-COGNISESS Application ceases to make the Non-COGNISESS Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
6.1 Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant
6.2 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term
and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in
advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3 Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and
Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 60 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations
under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice) for billing notices, before suspending services to You.
6.5 Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property
6.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our Affiliates, Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth
7.2 Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
7.3 License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, display and use any Non-COGNISESS Applications and program code created by or for You using a Service or for use by You with the Services, and Your Data, each as reasonably necessary for Us to provide, and ensure proper operation of, our Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-COGNISESS Application or such program code.
7.4 License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’
8.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of
disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach
of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2 The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential
Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such
Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-COGNISESS Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and
providing secure access to that Confidential Information.
9.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2 Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall
security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-COGNISESS Applications” section above, We will not materially decrease the overall
functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
9.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “COGNISESS Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that our Services are the basis of the Claim Against You; (2) a Claim Against You arises from the use or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Us, if our Services or use thereof would not infringe without such combination; (3) a Claim Against You arises from Services under an Order Form for which there is no charge; (4) a Claim against You is based on traditional online storefront commerce functionality that is or was in general use in the industry; or (5) a Claim Against You arises from Content, a Non-COGNISESS Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.
10.2 Indemnification by You. You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that (a) any of Your Data or Your use of Your Data with our Services, (b) a Non-COGNISESS Application provided by You, or (c) the combination of a Non-COGNISESS Application provided by You and used with Our Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
10.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
11.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING
THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
11.2 Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE
FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
12.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
12.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or
assignment for the benefit of creditors.
12.4 Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5 Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
12.6 Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Removal of Content and Non-COGNISESS Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
13.1 This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the laws of England and Wales. The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this Agreement, its subject matter or its formation (including non-contractual disputes or claims).
13.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
13.3 No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other Cognisess.com company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14.1 Export Compliance. The Services, Content, other technology We make available, and derivatives there of may be subject to export laws and regulations of the United Kingdom and other jurisdictions. Each party represents that it is not named on any U.K. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.K. embargoed country or in violation of any U.K. export law or regulation.
14.2 Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any
violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at email@example.com.
14.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
14.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
14.7 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
14.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
This Agreement was last updated on November 27, 2017. It is effective between You and Us as of the date of Your accepting this Agreement.
The “Services” means, collectively, the computer applications, interfaces, software, programs, products, services and websites provided or made available by Cognisess and its affiliates, which you may use for, among other things, uploading, completing profiles, doing assessments, storing and sharing Content (as defined below).
You acknowledge and agree that all information, CV, bio, profile, data, text, photographs, images, files, software, sounds, recordings, graphics, video, messages, tags and other materials, in whatever form and technical structure, whether publicly posted or privately transmitted or stored using the Services (“Content”), are the sole responsibility of the person(s) originating such Content and introducing such Content into the Services. We reserve the right, but shall have no obligation, to pre-screen, reject, review, quarantine, delete or move any Content posted or submitted to the Services, without obligation to any person.
You further agree to NOT:
(a) use our products or the Services for illegal purposes or for promotion of dangerous activities;
(b) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with Cognisess or any other person or entity;
(c) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual duties (such as insider trading regulations, internal corporate policies or nondisclosure agreements);
(d) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(e) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(f) interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected or applicable to the Services;
(g) violate through use of the Services any applicable local, state, national or international law;
(h) “stalk” or otherwise harass another person or user of the Services, or take any action invasive to another’s privacy (by posting, for example, another’s photograph, address, email, phone number or any other contact information) without permission from such other person;
(i) promote or provide instructional information about illegal activities, promote physical harm or injury against any government, legal entity, group or individual;
(j) solicit passwords or personal identifying information from other users for unintended, commercial or unlawful purposes;
(k) exceed the scope of the Services you (or your employer or principal pursuant to a Subscriber Agreement) have signed up for, for example, accessing and using non-public portions of the website, groups or features that you do not have a right to use, or deleting, adding to or otherwise changing another person’s entries or other Content when you have not been granted the right to do so;
(l) access (or attempt to access) any of the Services by any means other than through the interface(s) provided by Cognisess, or access (or attempt to access) any of the Services through any automated means (including use of scripts, web crawlers or the like) or otherwise engage the Services in a manner reasonably likely to be harmful to the systems operating the Services or the access or use of the Services by others;
(m) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Services; and
(n) you further agree NOT to upload or display publicly Content that:
(i) contains nudity, sexually graphic material, or material that is otherwise deemed explicit by Cognisess; or
(ii) contains threatening, abusive, harassing, defamatory, libellous, invasive, hateful, or racially, ethnically or otherwise objectionable.
If you encounter any of these prohibited uses, we encourage you to report them to us immediately.
Without limiting the generality of the foregoing, you agree not to access, use, copy, reverse engineer, create derivative works from, share or assist any third party to use the Services or any component thereof to design, create, program, market or promote any product, software or service in competition with Cognisess (including but not limited to independent or internal networks).
Copyright notices in the United States
We will not knowingly publish content in violation of applicable copyright law. If you believe content has been displayed, reproduced, printed or otherwise distributed by us through this website in violation of any third party copyright, please notify us in writing. Send your notice to Cognisess FAO Legal Officer to firstname.lastname@example.org, and include the following:
We may include the use of third party resources and/or links to third party websites as part of the Services. We have no control over such sites and resources and, accordingly, you acknowledge and agree that (a) we are not responsible for the availability of such external sites or resources; (b) we do not endorse and are not responsible or liable for any content or other materials available from such sites or resources and (c) we 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 use of or reliance on any such content or materials available on or through any such site or resource.
“Data Controller” means a person/entity who determines the purposes for which and the manner in which any Personal Data are, or are to be, processed (collected, used, amended, retained, destroyed etc.);
“Data Processor” means a person/entity (other than an employee of the Data Controller) that processes Personal Data on behalf of the Data Controller;
“Personal Data” means data which relates to a living individual who can be identified from that data, (or from that data and other information which is in the possession of the Data Controller); and
“Third Party” any person or entity other than Company, End User, the Data Controller or the Data Processor or other person authorised to process data for the Data Controller or person, excluding Cognisess.
Both parties will comply with all applicable laws and regulations in relation to the collection, processing and storage of Personal Data relating to end users.
Company or end user provides Cognisess with Personal Data via the Cognisess platform, including information to contact end user, scores, results and other bio data (“end user Data”). Cognisess will then contact the end user for the purpose of completing an assessment or profiler. (“Assessment Data”). Personal Data, which is used to produce the Output, is either input by the end user or provided by Company. End user or Company may provide optional information for the purposes of research (“Research Data”). Cognisess processes the answers provided by the end user and will generate results of the assessment (“Results Data”) to provide Company or End User the Output.
(a) Company agrees that Cognisess may transfer Personal Data outside the EEA to the facilities of other members of Cognisess in order to provide Company with the Products and/or Services under this Agreement. This may include processing End User Data, Assessment Data and Results Data in countries in which data protection laws do not provide the same level of protection as those within the EEA. In such cases, the Cognisess will take appropriate steps to ensure Company’s information is adequately protected in accordance with EU data protection laws.
(b) Subject to clause (c) below, Cognisess may disclose Personal Data to Third Parties in the following limited circumstances: if Cognisess (i) buys or sells any affected business assets, (ii contracts with Third Parties to perform or provide certain services on behalf of a member of Cognisess, or (iii) is under a duty to disclose or share Personal Data to comply with any legal obligation.
(c) Cognisess will contractually require any buyer of Cognisess assets that include Personal Data or any Third Party performing services on Cognisess’ behalf to provide the same level of protection for Personal Data required in these terms and under any applicable data protection laws.
(a) Company is the Data Controller of all End user Data, Assessment Data and any Output. Cognisess acts as the Data Processor in respect of the End user Data, Assessment Data and in producing the Output. Cognisess will co-operate with any Company request for Personal Data provided by or through Company, provided that such requests, other than those required under law, may be subject to reasonable charges for such assistance.
(b) Where Cognisess acts as Company’s Data Processor, Cognisess will:
(i) process Personal Data in accordance with Company’s reasonable instructions or otherwise as may be required to provide the Product and/or Services under this Agreement, and to support Company in its use of the Products and/or Services; and
(ii) take appropriate steps to protect Personal Data, whether electronic or otherwise, including by implementing reasonable administrative, technical and physical security controls to protect Personal Data from unauthorised access, improper use or disclosure, unauthorised modification or unlawful destruction or accidental loss. Cognisess and any Third Party Cognisess engages to process Personal Data will be required to protect and process Personal Data in accordance with this Agreement and applicable data protection laws.
(a) Cognisess collects Research Data in the form of optional demographic questions displayed at the beginning or during am end user assessment, and in the form of further information on assessment objectives or End user success information provided by Company. Cognisess will be the Data Controller of all Research Data if the End user elects to provide such information.
(b) End user’s ability to complete an assessment will not be affected by the End user’s choice not to provide Research Data, nor will such choice affect End user’s assessment results. Research Data is not disclosed to the Company.
Assessment Validation and Benchmarking
Company authorises Cognisess to use Assessment Data and Results Data in an anonymised format for assessment validation and benchmarking purposes. Cognisess uses such Assessment Data and Results Data, along with Research Data, to ensure that the Cognisess assessment instruments remain fair and objective to prevent unfair discrimination, and to benchmark tests against industry recognised differences for particular groups.
Cognisess and its psychologists are bound by ethical guidelines and data protection law in the use of all data. Access to any data used for validation, benchmarking, or research will be restricted to Cognisess employees directly involved in research supporting Cognisess products and services.
The Services are normally available over the Internet around the clock. Cognisess shall be entitled to take measures that affect the aforementioned accessibility when Cognisess deem such to be necessary for technical, maintenance, operational, or security reasons. Cognisess guarantee at least 99% total uptime of the Service, as measured over a rolling 3-month (90 day) period by a reputable external monitoring service of our choice from time to time. This excludes any planned maintenance periods as described below. Availability is currently measured as continuous availability of the Cognisess login page.
Cognisess will notify Subscriber at least 1 week in advance of any planned maintenance periods that exceed 30 minutes in length. Cognisess will endeavour to carry out any such planned maintenance outside of normal UK office hours. There will be a maximum of one (1) planned maintenance period in any three (3) week period. Cognisess will backup Subscriber’s data stored on Our system, including files stored in Subscriber workspaces and associated User data such as notifications, permissions and comments. Backups of the Cognisess file store are carried out continuously. Full backups of the Cognisess databases are carried out weekly, with incremental backups carried out every 10 minutes. All backups are held for a 35-day period. In the event of a disaster at our primary data centre, failover to DR can be effected within 24 hours of approval.
Any problems experienced by Subscriber in accessing the Service should be reported to Cognisess online support system at http://cognisess.zendesk.com or
email@example.com. A support ticket can be raised via Our system which Subscriber can use to track progress of the reported problem and resolution against it.
Cognisess assume no responsibility for technical support or problems arising from or relating to third party systems, browsers, equipment owned or maintained by Subscriber or any Users, or the administration of email addresses or the email account of any User.
Cognisess agree to take commercially reasonable steps to maintain the Services in a secure manner. If a security flaw is detected with respect to which Cognisess has reason to believe the security or integrity of Content or account information of Subscriber’s Users may be affected, Cognisess shall use reasonable efforts to notify Subscriber promptly of such defect and any related remedial steps Cognisess propose to take.
Services may be performed by Our affiliates or subcontractors in Our discretion, provided that Cognisess shall be responsible for compliance with and performance of this Agreement by any such persons and such persons will be under the same confidentiality provisions as set forth in this Agreement.
All rights reserved. © Cognisess 2018
Published by Cognisess, November 27th 2017.