TI People Terms

These general Terms govern the use of TI People Programs, Products and Services. These Terms, together with an applicable Letter of Agreement, constitute the valid, complete, and binding contract between TI PEOPLE, or its applicable Affiliate, and Company. In these Terms, “TI PEOPLE” means the applicable TI PEOPLE Affiliate when a TI PEOPLE Affiliate enters into a Letter of Agreement.

Definitions

Unless otherwise defined in these Terms, capitalized terms have the following meanings:

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means the power, directly or indirectly, to direct or affirmatively cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise.

“Benchmarks” mean aggregated data received, collected, analyzed, and maintained by TI PEOPLE and its Affiliates to improve its Programs, Products and Services. Benchmarks may be derived from public information, assessment responses, survey data and best practices information that TI PEOPLE and/or its Affiliates receive from their customers/clients. Benchmarks are always presented in an aggregated and anonymized form that does not identify a particular individual or company.

“TI PEOPLE” means TI PEOPLE GmbH, Rödingsmarkt 9, 20459 Hamburg, GERMANY.

“TI PEOPLE Intellectual Property Rights” means all Intellectual Property Rights (i) in and to the TI PEOPLE Property or (ii) otherwise owned by or licensed to TI PEOPLE or its Affiliates by their respective licensors.

“TI PEOPLE Property” means all of the following without limitation created or owned by TI PEOPLE or its Affiliates, or its licensors, whether pre-existing or independently created during the Subscription Period: All Materials, websites, software, tools, URLs and links, databases, designs, algorithms, user interface designs, architecture, libraries, objects and documentation, network-design, know how, technology and source code and all portions, subsets or derivatives thereof, any improvements, modifications, upgrades or other changes thereto; and any and all derivative works created by TI PEOPLE or its Affiliates.

“Company” is an entity that purchases a Program, Product or Service from TI PEOPLE or its Affiliates. In the event the license is extended to such Company’s Affiliates pursuant to the Letter of Agreement, the term “Company” shall include such Affiliates and the provisions of the Letter of Agreement including these Terms shall also apply to Company’s Affiliates.

“Company Property” means any data, information, or other material provided by or on behalf of Company to TI PEOPLE or its Affiliates; provided, however, Company Property shall not include any TI PEOPLE Property or TI PEOPLE Intellectual Property Rights.

“Confidential Information” means all information, in whatever form, furnished by one party or its Affiliates (the “Disclosing Party”) to the other party or its Affiliates, as applicable (the “Receiving Party”) orally or in writing and identified as confidential or proprietary at the time of disclosure, or that by its nature should reasonably be assumed to be confidential or proprietary, including, but not limited to: business information; financial information; marketing techniques and materials; business plans and strategies; business operation and systems; pricing policies; information concerning employees, customers, and/or vendors; discoveries; improvements; research; development; know-how; designs; products and services; opportunities; methods and procedures; and equipment, physical materials and manufacturing processes. TI PEOPLE Property and TI PEOPLE Intellectual Property Rights are expressly considered Confidential Information.

“Company Research Information” means Company Property that Company, in its sole discretion, voluntarily provides to TI PEOPLE and/or its Affiliates for the purpose of TI PEOPLE’s general use of such information in TI PEOPLE Materials (e.g. case studies and white papers) that are available through TI PEOPLE’s Programs, Products and/or Services and are intended for use and consumption by TI PEOPLE member companies and clients.

“Fees” shall mean the fees payable to TI PEOPLE for the Programs, Products and/or Services purchased pursuant to the applicable Letter of Agreement.

“Intellectual Property Rights” means all patents (including all reissues, divisions, continuations, and extensions thereof) and patent applications, trade names, trademarks, service marks, logos, trade dress, copyrights, trade secrets, mask works, rights in technology, know-how, rights in content (including performance and synchronization rights), unregistered design, or other intellectual property rights that are in each case protected under the laws of any governmental authority, whether or not registered, and all applications, renewals and extensions of the same.

“Letter of Agreement” means a written agreement, statement of work or order form between Company and TI PEOPLE or a TI PEOPLE Affiliate describing the Program, Product or Services.

“Materials” means any and all documents, information, virtual learning content, research, training manuals, templates, technical reports, report formats, research data, selection, assessment and survey content (including survey or test content and scoring protocols), websites, and/or any other materials provided by TI PEOPLE or its Affiliates as part of a Program, Product or Service. TI PEOPLE and its Affiliates reserve the right to update, replace, delete or modify Materials from time to time in their discretion.

“Personal Data” means any data or information provided by Company to TI PEOPLE that relates to a living individual who can be identified from that data.

“Product” means the TI PEOPLE or TI PEOPLE Affiliate products included in a Letter of Agreement.

“Program” means the combination of Products and Services provided as a predefined offering under a Letter of Agreement.

“Services” means the services described in the applicable Letter of Agreement provided by TI PEOPLE or one of its Affiliates.

“Subscription Period” means the period of time that commences on the start date and ends on the end date as set forth in a Letter of Agreement for the access to or use of particular Programs, Products and/or Services.

“VAT” means:

(a) any tax imposed in compliance with the Council Directive of 28 November, 2006 on the common system of value added tax (EC Directive 2006/112); and

(b) any other tax of a similar nature, whether imposed in a member state of the European Union in a substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.

And references to “EU VAT” shall mean VAT chargeable in any member state of the European Union.

1. Purchase and Fees

1.1 Letter of Agreement. Each Letter of Agreement shall be subject to these Terms unless otherwise agreed in writing and will contain: (i) the Programs, Products and/or Services purchased by Company from TI PEOPLE or its Affiliate, (ii) the applicable license, (iii) the Fees and payment schedule, (iv) the Subscription Period, and (vi) any additional or alternative applicable provisions. On signing the Letter of Agreement, Company’s purchase of TI PEOPLE Programs, Products, or Services will be accepted by TI PEOPLE on the earliest of: (i) the date Company is provided access to the Programs, Products, and/or Services in accordance with the Subscription Period (even if Company does not access such Programs, Products, and/or Services); (ii) the first invoice date as set forth in the Letter of Agreement;  or (iii) if applicable, the date the Letter of Agreement is countersigned by TI PEOPLE.

1.2 Fees. Company shall pay all Fees as specified in the Letter of Agreement. Unless otherwise stated in the Letter of Agreement, (i) Fees are quoted and payable in Euros, (ii) Fees are based on Programs, Products and/or Services purchased and not actual usage, and (iii) with the exception of termination for Cause by Company, or as may otherwise be stated in the Letter of Agreement, all Programs, Products and Services are non-cancellable and all Fees are non-refundable.

1.3 Invoicing. Unless otherwise stated in the Letter of Agreement, TI PEOPLE will deliver an invoice to Company for the full amount of the Fees and such invoice shall be due and payable by Company within thirty (30) days of receipt. If any portion of an invoice is disputed, Company will pay the undisputed amounts, and the parties will reconcile the disputed amount in good faith as soon as possible. Late payments will bear interest at a rate of 1.5% per month, or, if lower, the maximum rate allowed by law.

1.4 Taxes. All fees are exclusive of taxes, levies, and duties imposed by any governmental or taxing authorities. Company shall pay all sales, use, duties, and other taxes (subject to Clause 1.5 below). TI PEOPLE shall pay all income and corporation income taxes that are based on, or measured by, TI PEOPLE’s (i) gross or net income or gross or net receipts (including any capital gains taxes or minimum taxes) or (ii) capital, doing business, excess profits, net worth, or franchise taxes.

1.5 VAT. For the avoidance of doubt, all Fees are exclusive of VAT (if any) and, accordingly, if VAT is chargeable on any supply by TI PEOPLE to Company and TI PEOPLE is required to account to the relevant taxing authority for the VAT, Company must pay to TI PEOPLE (in addition to and at the same time as paying the Fees) an amount equal to the amount of the VAT (and TI PEOPLE shall provide an appropriate VAT invoice for Company).

1.6 Set-Off. Company shall not be entitled to set-off against any rights of TI PEOPLE, unless (i) TI PEOPLE has confirmed those alleged counter-claims in writing or (ii) they are not being disputed by TI PEOPLE within six weeks after being alleged in writing and received by TI PEOPLE or (iii) a counter-claim is being held to exist and to be enforceable by a final judgment or arbitration award against TI PEOPLE. Invoices by TI PEOPLE can only be disputed within four weeks after receipt.

2. Ownership and Intellectual Property

2.1 Company Property. Company shall retain exclusive ownership of all rights, title and interest in and to all Company Property provided to TI PEOPLE.

2.2 TI PEOPLE Property. Company acknowledges and agrees that TI PEOPLE and its Affiliates or its licensors, as the case may be, shall retain exclusive ownership of all rights, title and interest in and to all TI PEOPLE Property and TI PEOPLE Intellectual Property Rights. Company acknowledges that its use of the TI PEOPLE Property and TI PEOPLE Intellectual Property Rights will not vest in Company any right, title or interest in or to the TI PEOPLE Property or TI PEOPLE Intellectual Property Rights other than the limited license rights granted under these Terms or a Letter of Agreement and all Intellectual Property Rights arising from such uses will be owned by TI PEOPLE and its Affiliates or their respective licensors. The Company warrants and represents that: it will not at any time (i) challenge (a) TI PEOPLE’s and/or its Affiliates’ rights, title and interests in and to the TI PEOPLE Property or the TI PEOPLE Intellectual Property Rights or (b) the validity of any TI PEOPLE Intellectual Property Rights or (ii) take any action or engage in any inaction which would impair or tend to impair the TI PEOPLE Intellectual Property Rights.

2.3 License and Additional Terms

2.3.1 License. The license applicable to particular Programs, Products, Services and/or Materials shall be set forth in a Letter of Agreement. If a license provision is not included in the Letter of Agreement, the following default provision shall apply:

During the Subscription Period, TI PEOPLE grants Company (or the specific number of users) a non-exclusive, royalty-free, worldwide, revocable (for non-payment of Fees or breach), non-transferable and non-assignable license to use, reproduce and distribute the Programs, Products, Services and/or Materials solely for Company’s internal business purposes.

Neither Company nor any individual user may sublicense, sell, transfer, assign to, display or otherwise make available (by sharing passwords or by any other means) the Programs, Products, Services and/or Materials to any third party (including (i) a Company service provider, independent contractor, consultant or subcontractor, or any (ii) other Company divisions or Company Affiliates to which the license has not been extended under the Letter of Agreement) without TI PEOPLE’s written permission, and any attempted sublicense, sale, transfer or assignment shall be void.

2.3.2 Customized Deliverables. TI PEOPLE or its Affiliates may create and/or provide deliverables to Company that are for Company’s sole use (“Customized Deliverables”). For the avoidance of doubt, to the extent that Customized Deliverables are comprised, in whole or in part, of TI PEOPLE Property or TI PEOPLE Intellectual Property Rights, TI PEOPLE and its Affiliates, or its licensors, as the case may be, retain exclusive ownership of all rights, title and interest in and to all TI PEOPLE Property and TI PEOPLE Intellectual Property Rights.

Upon full and final payment of any Fees, Company will own Customized Deliverables (if included in the Program, Product or Service), subject to the following: (i) TI PEOPLE shall retain exclusive ownership of all rights, title and interest in and to all TI PEOPLE Property and TI PEOPLE Intellectual Property Rights incorporated in the Customized Deliverables, and (ii) the Customized Deliverables shall be used for Company’s internal business use only. TI PEOPLE grants to Company a perpetual, non-exclusive, royalty-free, worldwide, non-transferable and non-assignable license to use the TI PEOPLE Property and TI PEOPLE Intellectual Property Rights incorporated into any Customized Deliverables to the extent necessary to allow the Company to enjoy the benefit of the Customized Deliverables.

2.3.3 Templates. Certain Programs, Products or Services include access to documents, tools, presentations or templates that are specifically designed to be downloaded and edited by Company for its particular internal business purposes (collectively, “Templates”). Templates are not considered Customized Deliverables. TI PEOPLE grants to Company a perpetual, non-exclusive, royalty-free, worldwide, non-transferable and non-assignable license to use Templates downloaded during the Subscription Period for Company’s internal business purposes.

2.4 Company Responsibilities

2.4.1 User Compliance. Company is responsible for: (i) protecting against any unauthorized access to or use of, and (ii) compliance of those individuals allowed to access or use, the Programs, Products, Services and/or Materials. Company shall notify TI PEOPLE promptly of any unauthorized access to or use of the Programs, Products, Services and/or Materials. Company shall ensure that it and those individuals allowed to access or use the Programs, Products, Services and/or Materials refrain from using the same in a manner that is libelous, defamatory, obscene, infringing or illegal, or otherwise abusing the material in any manner.

2.4.2 License to Company Research Information. If Company voluntarily discloses Company Research Information to TI PEOPLE, Company grants TI PEOPLE and its Affiliates a permanent and irrevocable, perpetual, worldwide, freely assignable and transferable, royalty-free license to use Company Research Information. Such license includes, without limitation (unless otherwise agreed to by the parties at the time of disclosure), the right to display, perform, sublicense, distribute, prepare derivative works based upon, copy, and use such Company Research Information, including any portions, subsets and derivatives thereof. This license applies to the distribution of Company Research Information (to the extent incorporated into TI PEOPLE’s Programs, Products, Services and/or Materials) in any form, medium, or technology now known or later developed. TI PEOPLE or its Affiliates will own any derivative works prepared or created by TI PEOPLE or its Affiliates, as applicable.

2.4.3 Feedback. Company acknowledges and agrees that any suggestions, enhancement requests, recommendations, or other feedback (collectively, “Feedback”) provided by Company or any of its users to TI PEOPLE may be incorporated by TI PEOPLE or its Affiliates into its Programs, Products, Services and/or Materials, and shall be considered TI PEOPLE Property. Company agrees to assign, and hereby assigns to TI PEOPLE all right, title and interest throughout the world in and to all Feedback including the Intellectual Property Rights in the Feedback, and shall assist TI PEOPLE, at no cost to Company, to obtain and maintain for TI PEOPLE such Intellectual Property Rights. Company shall sign or, as applicable, cause its users and related persons to sign such instruments as TI PEOPLE deems reasonably necessary for TI PEOPLE to obtain and maintain such Intellectual Property Rights.

2.4.4 Research Data and Benchmarking. Notwithstanding anything in these Terms or any Letter of Agreement to the contrary, Company authorizes TI PEOPLE and its Affiliates to use Company Property disclosed through surveys, assessments, or provided by Company to TI PEOPLE or its Affiliates (through software or other data collection activities) for assessment validation, research and benchmarking purposes (collectively “Research Data”) including creating or updating Benchmarks.  TI PEOPLE or its Affiliates will (i) only use, aggregate and present the Research Data or Benchmarks in an anonymous form and (ii) not include (directly or by inference) any information identifying Company or any identifiable individual as the source of such data in the Research Data or Benchmarks. TI PEOPLE and its Affiliates are bound by ethical guidelines and data protection laws in the use of all data.  Access to any Research Data will be restricted to only those individuals directly involved in research supporting TI PEOPLE products and services.

2.4.5 Right to Audit. During the term of this Agreement and for a period of one (1) year following its termination or expiration, TI PEOPLE reserves the right to audit Company upon reasonable written notice to verify compliance with this Agreement. Company shall maintain and make available to TI PEOPLE accurate records to permit TI PEOPLE or an independent auditor retained by TI PEOPLE to verify Company’s compliance with the terms and requirements of this Agreement.

3. Data Protection

3.1 Compliance. Both parties shall at all times comply with all applicable laws and regulations in relation to the collection, processing, use, and storage of Personal Data.

3.2 Confidentiality of Survey Responses. Company and TI PEOPLE agree that neither party will breach any promises of confidentiality made to any survey or assessment participant. Company shall not ask or induce others to ask TI PEOPLE to provide any data, including survey or assessment responses, to Company or any third parties in violation of confidentiality notices presented to participants.

3.3 Subcontracting. Where TI PEOPLE subcontracts any of its obligations under these Terms or any Letter of Agreement, it will contractually require the subcontractor to comply with confidentiality obligations at least as restrictive as those contained hereunder, and all applicable data protection laws. For the purposes of performing its obligations under the Letter of Agreement and these Terms, TI PEOPLE may use its Affiliates, and, in such event, such Affiliates shall not be considered subcontractors.

4. Limitations of Liability

4.1 Neither party shall be liable for any of the following losses or damages (whether or not foreseen, direct, indirect, foreseeable, known or otherwise): (i) loss of profits (whether actual or anticipated), (ii) loss of revenue, (iii) loss of contracts, (iv) loss of anticipated savings, (v) loss of business, (vi) loss of opportunity, (vii) loss of goodwill, or (viii) any indirect, special or consequential loss or damage. Notwithstanding the foregoing, nothing shall limit TI PEOPLE’s or its Affiliates’ or their respective licensors’ rights to damages arising from any infringement or misappropriation of TI PEOPLE Intellectual Property Rights regardless of whether such infringement or misappropriation arises in connection with these Terms or any Letter of Agreement.

4.2 TI PEOPLE’s and its Affiliates’ total aggregate liability arising out of or in connection with the performance or contemplated performance under the applicable Letter of Agreement (whether for tort (including negligence), breach of contract, breach of statutory duty or otherwise) shall in no event exceed the price paid or payable by Company to TI PEOPLE or its Affiliates under such Letter of Agreement within the 12 month period immediately before the date of the event giving rise to Company’s claim.

4.3 Nothing contained in these Terms or any Letter of Agreement shall exclude or limit either party’s liability for (i) death or personal injury caused by its or its Affiliate’s negligence, (ii) fraud or fraudulent misrepresentation, or (iii) any other matter for which it would be illegal to limit or exclude or attempt to limit or exclude liability.

5. Confidential Information

5.1 Each party agrees not to use and/or disclose Confidential Information received from the other party except as allowed under these Terms or otherwise set forth in a Letter of Agreement.

5.2 TI PEOPLE shall be allowed to disclose Confidential Information to its Affiliates, consultants, vendors or subcontractors who are necessary to provide Programs, Products, and/or Services to Company, provided that any such Affiliates, consultants, vendors or subcontractors are bound by confidentiality obligations at least as restrictive as those contained in these Terms.

5.3 The confidentiality obligations of each party shall continue in force and survive the termination or expiration of the applicable Subscription Period for a period of two (2) years following such termination or expiration. The confidentiality obligations with respect to any Confidential Information subject to trade secret protection will continue indefinitely.

5.4 The Disclosing Party grants no license under any copyright, patent, trademark or trade secret by the disclosure of the Confidential Information. The parties understand and acknowledge that any and all Confidential Information is being provided by the Disclosing Party without any representation or warranty, express or implied, as to the accuracy or completeness of such Confidential Information.

5.5 Confidential Information shall not include information which (i) was already known by the Receiving Party at the time of the disclosure by the Disclosing Party, (ii) shall have otherwise become publicly available other than as a result of disclosure by the Receiving Party in breach of these Terms, (iii) was disclosed to the Receiving Party on a non-confidential basis from a third party source other than the Disclosing Party, which the Receiving Party reasonably believes is not prohibited from disclosing such information as a result of an obligation in favor of the Disclosing Party, (iv) is developed by the Receiving Party independently of any disclosure of such information made by the Disclosing Party, or (v) is required to be disclosed by order of a court of competent jurisdiction.

6. Termination

With the exception of termination for Cause (defined below), or as may otherwise be stated in a Letter of Agreement, Company may not terminate the Letter of Agreement and, except as otherwise stated the Letter of Agreement, any Fee paid by Company is not refundable.

Either party may terminate a Letter of Agreement for “Cause” if the other party materially breaches any provision of the Letter of Agreement or these Terms (which, in the case of Company, shall include failure to pay any undisputed Fees) and (i) either the breach cannot be cured or, (ii) if the breach is capable of being cured, it is not cured by the breaching party within thirty (30) days after the breaching party’s receipt of written notice of such breach by the non-breaching party (stating the specific nature of the breach). Termination for Cause shall not relieve Company of the obligation to pay any undisputed Fees accrued or payable to TI PEOPLE in connection with the Letter of Agreement prior to the effective date of termination.

7. Marketing

Company permits TI PEOPLE and its Affiliates, as applicable, to use Company’s name and logo for their internal and external customer lists and other marketing materials. In addition, if Company discloses Company Property to TI PEOPLE or its Affiliates for specific inclusion in materials or for the joint development of a case study or other research, TI PEOPLE or its Affiliates may attribute such information with Company’s name and logo. TI PEOPLE may use Company’s plain text name as required in any public reporting or regulatory documents.

8. Disclaimer of Warranties

AND EACH OF ITS AFFILIATES PROVIDES THE PROGRAMS, PRODUCTS, SERVICES AND/OR MATERIALS “AS IS” AND DISCLAIMS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES FOR PROGRAMS, PRODUCTS, SERVICES AND/OR MATERIALS PROVIDED BY TI PEOPLE OR ANY OF ITS AFFILIATES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TI PEOPLE AND ITS AFFILIATES DO NOT WARRANT OR GUARANTEE THAT COMPANY WILL REALIZE ANY RESULTS BY VIRTUE OF THE USE OF THE PROVIDED PROGRAMS, PRODUCTS, SERVICES AND/OR MATERIALS. THIS DISCLAIMER IS INTEGRAL TO ESTABLISHING PRICING AND CONSTITUTES AN ESSENTIAL PART OF THESE TERMS.

9. Governing Law

These Terms and all related Letters of Agreement will be governed by and construed in accordance with German laws, and the parties agree to submit to jurisdiction of the German courts to resolve all disputes.

10. Updates

TI PEOPLE may from time to time make reasonable updates to these Terms; provided, however, any existing Letters of Agreement shall remain subject to the version of the Terms in effect as of the date of the Letter of Agreement until the expiration of the applicable Subscription Period.

Updated as of October 2017