Terms of Service for clients of Perspective Consulting, Inc.
Last Modified: August 3, 2020
PLEASE READ THESE TERMS OF SERVICE CAREFULLY
These terms of service, together with your Perspective Consulting Client Agreement (collectively “Agreement”), constitute a contract between you (the “Client”) and us (Perspective Consulting, Inc., dba Perspective Consulting). It describes the Services we will provide to you, how we will work together, each of our responsibilities, and other aspects of our business relationship. The terms of this Agreement apply to all Services. By entering into the Agreement and using The Predictive Index products or services, you are agreeing to these terms.
1. CLIENT AGREEMENT
Your Perspective Consulting Client Agreement (“Client Agreement”) specifies the PI Products and Services for which you have purchased a right to use. The Products and Services are generally purchased as subscriptions, unless otherwise provided in your Client Agreement. Our training programs (often referred to as “PI Workshops” or “Lead with Perspective Workshops”) are not subscription-based, and are purchased on an individual basis.
In this Agreement, “Products and Services” refers collectively to PI software subscriptions, PI Workshops, Lead with Perspective Workshops, and Consulting, except where specifically stated otherwise. Any additional products and services we provide to you in the future will also be considered “Products and Services.”
2. CLIENT GROUP
You may use the Products and Services to assess employees of the Client Group specified in your Client Agreement, and candidates for employment positions within such Client Group. Client Group means the branches, divisions, departments, locations, and/or subsidiary companies identified in your Client Agreement. If no Client Group is specified, your subscription to use the Products and Services includes your entire organization.
The Headcount specified in your Client Agreement refers to the total number of employees contained in your Client Group. Unless otherwise stated in your Client Agreement, if your Client Agreement includes PI assessments, you may administer an unlimited number of PI assessments to employees and prospective employees of the Client Group. However, you may not administer PI assessments to employees that are not part of the Client Group, nor to candidates that are being considered for positions outside of the Client Group.
3. TERM AND TERMINATION
3.1 Term of Agreement. This Agreement commences on the Start Date identified in your Client Agreement and continues until all applicable purchased subscriptions have expired or terminated.
3.2 Termination. A party may terminate this Agreement for cause (i) upon thirty (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. Sections 4, 6, 7, and 9-15 will survive termination or expiration of this Agreement.
4. FEES AND PAYMENT
4.1 Fees. You agree to pay all fees specified in your Client Agreement. Except as otherwise specified herein or in your Client Agreement, (i) fees are based on Products and Services subscriptions purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
4.2 Payment. Unless otherwise provided in your Client Agreement, fees are due on or before the Start Date. Payments that are more than 30 days late may incur a penalty interest rate of 2% per month or the maximum rate permitted by law, whichever is less.
4.3 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, we will invoice you and you will pay that amount unless you provide a valid tax exemption certificate authorized by the appropriate taxing authority.
5. THE PRODUCTS AND SERVICES
5.1 Workshops. PI Workshops are training sessions designed to assist with use of the PI
Products and Services. Lead with Perspective workshops are training sessions designed by Perspective Consulting to improve culture and enhance the skills of participants and may or may not directly assist with the use of PI Products and Services. PI Workshops and Lead with Perspective Workshops are not subscription based, and are provided on a one-off basis. Workshop pricing is per-participant, and is not unlimited. Any terms in the Agreement that by their nature would not reasonably apply to PI Workshops and Lead with Perspective Workshops, including but not limited to any terms that reference a subscription, do not apply.
5.2 Consulting Services. Consulting Services include a variety of services performed by a Perspective Consulting consultant.
6. PROPRIETARY RIGHTS
6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder and in your Client Agreement, PI reserves all rights, title and interest in and to the Products and Services labeled with PI, including related intellectual property rights related to The Predictive Index. No rights are granted to you hereunder other than as expressly set forth herein or in your Client Agreement. Perspective Consulting, Inc., reserves all rights, title and interest in and to the Products and Services labeled with Lead with Perspective. No rights are granted to you hereunder other than as expressly set forth herein or in your Client Agreement.
Except as otherwise expressly provided herein, Predictive Index, LLC owns and shall retain all of its right, title and interest in and to the Products and Services labeled PI, and you shall not make any claim to the contrary. Except as otherwise expressly provided herein, Perspective Consulting, Inc., owns and shall retain all of its right, title and interest in and to the Products and Services labeled Lead with Perspective, and you shall not make any claim to the contrary. You further acknowledge that the Products and Services have been created, developed and maintained by us at great expense of time and money, such that misappropriation or unauthorized disclosure or use of the Products and/or Services by you or others for commercial gain would unfairly and irreparably harm us, in a manner for which damages would not be an adequate remedy, and you therefore consent to our obtaining injunctive relief to restrain any actual or threatened breach of the Agreement.
7. USAGE RESTRICTIONS
7.1 General Restrictions. You will not (a) make the Products and Services available to anyone other than your authorized users, or use the Products and Services for the benefit of anyone other than you, including, without limitation, for recruitment, placement, consulting, counseling or staffing for any party that is not part of the Client Group, unless expressly stated otherwise by PI or Perspective Consulting in writing, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Products or Services, or any part thereof, (c) use the Products and Services 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 the Products and Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Products and Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Products and Services or related systems or networks, (g) permit direct or indirect access to or use of the Products and Services in a way that circumvents a contractual usage limit, or to access or use any of our intellectual property except as permitted under this Agreement or a Client Agreement, (h) modify, copy, or create derivative works based on the Products and Services or any part, feature, function or user interface thereof, (i) copy any content therefrom except as permitted herein or in a Client Agreement, or (j) disassemble, reverse engineer, or decompile the Products and Services, or any part thereof, 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 Products and Services, (3) copy any ideas, features, functions or graphics of the Products and Services or (4) determine whether the Products and Services are within the scope of any patent. Any use of the Products and Services in breach of this Agreement or Client Agreement, by you or your authorized users that in our judgment threatens the security, integrity or availability of the Products and Services, may result in our immediate suspension of your subscription to use the Products and 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.
7.2 Legal Restrictions. You may not use the Products and Services if you are legally prohibited from receiving or using the Products and Services under the laws of the country in which you are resident or from which you access or use the Products and Services. The Products and Services are not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the Federal Information Security Management Act (FISMA), so you may not use the Products and Services where your communications would be subject to such laws.
7.3 Competitors. You may not access or use the Products and Services if you are a competitor. In addition, you may not access or use the Products and Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
7.4 Export Restrictions. In accordance with United States export laws, you agree not to export or re-export the Products and Services except in full compliance with all United States laws, rules, decrees, regulations, and executive orders, including without limitation the Export Administration Regulation of the U.S. Department of Commerce and the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. Without limitation of the foregoing no Products and Services may be exported or re-exported into (or to a legal permanent resident of) any country to which the United States embargoes goods or to anyone on the United States Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List.
8. CLIENT SUPPORT
8.1 Client Support. Phone and email support is included at no additional cost to all clients that have purchased a subscription to use the Products and Services. Phone support is available from 8:30am to 5:30pm CST (Central Standard Time) Monday through Friday, with reduced hours during holidays in the U.S. We accept email support questions 24 Hours per Day x 7 Days per week. Email responses are provided during phone support hours only. We attempt to respond to email support questions within one business day, however, we do not promise or guarantee any specific response time.
9. CLIENT DATA
9.1 Client Data Ownership and Use. “Client Data” means all information that you submit or collect via the Products and Services. As between the parties, you own and retain all rights to the Client Data. This Agreement does not grant us any ownership rights to Client Data.
9.2 Client Data Representations. You represent and warrant that you have obtained all necessary consents or otherwise have the right to disclose such Client Data to, or to cause such Client Data to be stored by, us, and that our processing of the Client Data in the performance of this Agreement shall not violate the rights of any third party.
9.3 Our Use of Client Data. You grant permission to us to use the Client Data as necessary to provide the Products and Services to you and as permitted by this Agreement. If you are using the Products and Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so. You grant us permission to access and use the Client Data for the purpose of management and administration, and providing you with assistance and consulting in connection with our Products and Services. We also may collect, store and use anonymized and pseudonymized Client Data and information from the administration of the Products and Services during the term of your Client Agreement for scientific research, benchmarking, and in order to improve our business operations and our products. Unless otherwise specified in your Client Agreement or other written document, all Client Data will be anonymized 120 days after termination or expiration of your Client Agreement.
9.4 Disclosure Required by Law. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
9.5 Sensitive Information. YOU AGREE NOT TO USE THE PRODUCTS AND SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION. “Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Special Categories of Personal Data.’
10. INDEMNIFICATION AND CONFIDENTIALITY
10.1 Indemnification by Us. We will indemnify, defend and hold you harmless, at our expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against you (and your officers, directors, employees, and agents) by a third party not affiliated with you to the extent that such Action is based upon or arises out of alleged infringement or misappropriation of any patent, copyright, trade secret, proprietary information or intellectual property right by reason of your authorized use of the Products and Services and to defend you at our expense in any suits at law or in equity arising therefrom to which you may be made a party. The foregoing indemnity shall not apply to the extent that the Action is caused by or results from: (a) your combination or use of the Products and Services with software, services, products or information developed by you or any third party, if the Action would not have existed but for such combination or use; (b) unauthorized modification of the Products and Services by anyone other than you or us (or our respective designees) if the Action would have been avoided by use of the unmodified Products and Services; (c) your continued allegedly infringing activity after receiving notice thereof or after being provided modifications, or a new software version or release, that would have avoided the alleged infringement; or (d) your use of the Products and Services in breach of this Agreement or any other documentation provided to you by us. You will: notify us in writing within thirty (30) days of your becoming aware of any such claim; give us sole control of the defense or settlement of such a claim; and provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We shall not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.
10.2 Indemnification by You. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Products and Services by you, (b) your noncompliance with or breach of this Agreement, (c) your use of third-party products, or (d) the unauthorized use of the Products and Services by any other person using your account. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10.3 Confidentiality. “Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of your Perspective Consulting Client Agreement. 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 Discloser or (ii) was known to the Receiver before receipt from the Discloser. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
You grant us the right to add your name and company logo to our customer list and website, unless you ask us not to do so in writing.
12. REPRESENTATIONS, EXCLUSIVE REMEDIES AND DISCLAIMERS
12.1 Our Disclaimers. We do not warrant that the Products and Services will perform in accordance with any specifications, documentation, or other standards, perform in an uninterrupted capacity, be error-free or bug-free, or provide complete or accurate data. We do not make any warranties as to the results to be obtained from the use of our Products and Services. Use of the Products and Services and reliance thereon is at your sole risk. We shall not be liable to you or any other entity or person for your or their inability to use our Products and Services, or for any inaccuracies, errors, omissions, delays, computer viruses or other infirmity or corruption, damages, claims, liabilities, or losses, regardless of cause, in or arising from the use of our Products and Services.
12.2 “As-Is.” Although we will provide guidance in support of your use of the functionality of the Products and Services, our Products and Services are provided on an “as is” basis and without warranty. No warranties, either express or implied, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, title, non-infringement, or any other type is provided.
12.3 Liability. In spite of anything to the contrary in this Agreement, Perspective Consulting Inc.’s maximum aggregate liability to you related in any way to or in connection with this Agreement, including your use (including use by any member of the Client Group) shall be limited to the amount of fees paid by the Client Group pursuant to this Agreement over the twelve (12) month period immediately preceding the circumstance giving rise to your claim for indemnification. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
13. MODIFICATION OF TERMS
13.1 Terms Updates. We may modify these Terms at any time upon notice to you (which may be by email); provided, however, that if you do not agree to the modified terms, you shall notify us in writing within thirty (30) days, in which case the previous terms will apply to your use of the Services for the remainder of the then-current Term, after which your right to use the Products and Services shall terminate.
14. STATE OR LOCAL GOVERNMENT CLIENTS
This Section 14 applies to Client only if Client is a state or local government, but only to the extent the Services are being used in a Client’s official capacity as a state or local government body. The sections in the Contract titled “Governing Law” will not apply to Customer only to the extent Client’s jurisdiction’s laws prohibit Client from accepting the requirements in those sections.
15. GENERAL PROVISIONS
15.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Kansas, USA without regard to its conflict of laws provisions. Each party agrees and consents to the exclusive jurisdiction of the state and federal courts of the State of Kansas for all purposes and actions relating to this Agreement and further agrees and consents that venue of any action brought hereunder shall be exclusively in the State of Kansas. If any action is brought to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its attorney’s fees and costs in the same or separate action and any other appropriate relief. If you are located outside of the territory of the United States, you agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
15.2 Entire Agreement. This Agreement (including the Client Agreement), is the entire agreement between you and us for the Products and Services, and supersedes all other proposals and agreements, whether electronic, oral or written, between us. Unless agreed to in writing, we are not bound by any additional or different terms proposed by you, any acceptance by you, any policy of Client Group governing the purchase of goods and/or services, or your website. Our obligations are not contingent on the delivery of any future functionality or features of the Products and Services or dependent on any oral or written public comments made by us or our PI Certified Partners regarding future functionality or features of the Products and Services. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
15.3 Assignment. Unless provided herein, 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, 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.
15.4 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.
15.5 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
15.6 Force Majeure. No party to this Agreement will be responsible for failure or delay of performance if caused by: an act of war, hostility, terrorism or sabotage; act of God; natural disaster; or electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
15.7 Waiver. Our failure to enforce our rights under the Agreement at any time for any period will not be construed as a waiver of such rights.
15.8 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.