HIGHGROUND TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) govern your use of the HighGround Services. 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. You may not access the HighGround Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the HighGround Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes.
a. “Affiliate” means any entity which 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.
b. “Customizations” means the tangible and intangible work product, and all proprietary rights (including, without limitation, rights under patent, copyright, trade secret and other similar laws) therein, that are developed in the course of providing the HighGround Services. Customizations include any materials produced as part of implementation, such as branded badges, email templates, etc., but do not include Your Marks.
c. “HighGround Services” means the products and services that are made available by us online.
d. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
e. “Marks” means the trademarks, service marks, tradenames and logos provided or made available by a party in connection with the HighGround Services.
f. “Order Form” means the documents for placing orders hereunder that are entered into between you and us. 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. Order Forms shall be deemed incorporated herein by reference.
g. “Residuals” means our ideas, concepts, know-how, expertise, methods, methodologies, functional and technical architectures, techniques or skills of us and our employees and contractors, writings in which any of the same are fixed (including, without limitation, all reports, computer software systems, routines, data models, technical data, processes, designs, code and documentation and systems, concepts and business information), and derivative works of any of the foregoing.
h. “Users” means individuals who are authorized by you to use the HighGround Services, for whom subscriptions to the HighGround Service have been ordered, and who have been supplied user identifications and passwords by you. Users may include but are not limited to your employees and third parties (such as consultants, contractors and agents) who use the HighGround Services exclusively for your benefit.
i. “We”, “Us”, “Our” and “HighGround” means HighGround Enterprise Solutions, Inc., a Delaware corporation.
j. “You” or “Your” means the company or other legal entity for which the party executing an Order Form is accepting this Agreement, and Affiliates of that company or entity.
k. “Your Data” means all personnel data submitted by you to the HighGround Services, including User-submitted text for goals, recognition and performance evaluation and management. Your Data does not includes Customizations or Residuals
2. HIGHGROUND SERVICES
a. Provision of HighGround Services. We shall make the HighGround Services available to you pursuant to these Terms and the relevant Order Forms during a subscription term. You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by us regarding future functionality or features.
b. User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) HighGround Services are purchased as user subscriptions and access by more than the specified number of users shall incur additional per user per month fees, (ii) additional user subscriptions may be added during the applicable subscription term at the same pricing as that for the preexisting subscriptions thereunder, and (iii) the added user subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated users only and cannot be shared or used by more than one user but may be reassigned to new users replacing former users who have ended their engagement and no longer require ongoing use of the HighGround Services.
3. USE OF THE HIGHGROUND SERVICES
b. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of your Data, (iii) obtain your employees’ and contractors’ consent to any inclusion or use of their personal or employment information before including such information in your Data or using such information in connection with the HighGround Services, (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the HighGround Services, and notify us promptly of any such unauthorized access or use, and (v) use the HighGround Services only in accordance with the Agreement and all applicable laws and government regulations. For the avoidance of doubt, You are responsible for ensuring that your use and/or implementation of the HighGround Services complies with applicable employment laws and/or your own employment policies. You shall not (a) make the HighGround Services available to anyone other than users, (b) sell, resell, rent or lease the HighGround Services, (c) use the HighGround 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 HighGround Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the HighGround Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the HighGround Services or their related systems or networks.
4. FEES AND PAYMENT FOR HIGHGROUND SERVICES
a. Fees. You shall pay all fees specified in this Agreement and all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, (iii) the number of user subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form, and (iv) there may be certain service and administrative fees associated with product and service redemptions, which will be communicated to you and billed in concert with the subscription fees. User subscription fees are based on calendar months; therefore, fees for user subscriptions added in the middle of a month will be charged for that full month and the months remaining in the subscription term.
b. Prepaid Awards. Employee incentives and awards for use with the HighGround Services may be purchased by you at your convenience. All such purchases are paid in advance and are non-refundable.
c. Invoicing and Payment. You will provide us with a valid purchase order or alternative document reasonably acceptable to us. 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.
d. Overdue Charges. If any charges are not received from you by the due date, then at our discretion, (a) such 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, from the date such payment was due until the date paid, and/or (b) we may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4(c) (Invoicing and Payment).
e. Suspension of Service and Acceleration. If any amount owing by you under this or any other agreement for our services is 30 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. We will give you at least 7 days’ prior notice that your account is overdue, in accordance with Section 11(a) (Manner of Giving Notice), before suspending services to you.
f. Payment Disputes. We shall not exercise our rights under Section 4(d) (Overdue Charges) or 4(e) (Suspension of Service and Acceleration) if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
g. Taxes. Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (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 paragraph, the appropriate amount shall be invoiced to and paid by you, 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 and employees.
5. PROPRIETARY RIGHTS
a. Reservation of Rights in HighGround Services. You acknowledge that we are in the business of creating and offering an employee performance management platform and in providing the HighGround Services. Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the HighGround Services, Customizations and Residuals, and, to the extent necessary to reflect the foregoing, you hereby assign to us, the exclusive right, title and interest (including all ownership and intellectual property rights) in and to the HighGround Services, Customizations and Residuals. You hereby agree to execute all further documents and take all further steps that are necessary to give effect to the foregoing.
b. Restrictions. You shall not (i) permit any third party to access the HighGround Services except as permitted herein or in an Order Form, (ii) copy, frame or mirror any part or content of the HighGround Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (iii) reverse engineer the HighGround Services, or (iv) access the HighGround Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the HighGround Services.
c. Your Data. Subject to the limited rights granted by you hereunder, we acquire no right, title or interest from you or your licensors under this Agreement in or to your Data, including any intellectual property rights therein.
d. Suggestions. We shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the HighGround Services any suggestions, enhancement requests, recommendations or other feedback provided by you, including users, relating to the operation of the HighGround Services.
e. Trademarks. Subject to the limited rights granted by you hereunder, we acquire no right, title or interest from you under this Agreement in or to your Marks, including any intellectual property rights therein. You hereby grant us a royalty-free, worldwide license during the applicable subscription term to use your name, and any other Marks provided by you in connection with the provision of the HighGround Services to you under this Agreement.
a. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential 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 shall include your Data; our Confidential Information shall include the HighGround Services, Customizations and Residuals; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, 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 (other than your Data) shall 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.
b. Protection of Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (i) not to 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, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. You shall not disclose the terms of this Agreement or any Order Form to any third party other than your Affiliates, legal counsel and accountants without HighGround’s prior written consent.
c. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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 such Confidential Information.
7. WARRANTIES AND DISCLAIMERS
a. Our Warranties. We warrant that (i) we have validly entered into this Agreement and have the legal power to do so, (ii) we will use commercially available anti-virus software to scan the HighGround Services for Malicious Code, provided that it is not a breach of this subpart (ii) if you or a user uploads a file containing Malicious Code into the HighGround Services and later downloads that file containing Malicious Code. For any breach of a warranty above, your exclusive remedy shall be as provided in Section 10(c) (Termination for Cause) and Section 10(d) (Refund or Payment upon Termination) below.
b. Your Warranties. You warrant that you have validly entered into this Agreement and have the legal power to do so.
c. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
d. Trial or Beta Services. From time to time we may invite you to try, at no charge, features or functionality that are not generally available to our customers (“Trial Services”). You may accept or decline any such trial in your sole discretion. Any Trial Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction or by a description of similar import. Trial Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. TRIAL SERVICES ARE NOT CONSIDERED “HIGHGROUND SERVICES” FOR PURPOSES OF OUR OBLIGATIONS HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Trial Services at any time in our sole discretion and may never make them generally available.
8. MUTUAL INDEMNIFICATION
a. Indemnification by Us. We shall defend you against any claim, demand, suit, or proceeding made or brought against you by a third party alleging that your use of the HighGround Services as permitted hereunder infringes a third party’s trade secret, or copyright registered as of the Effective Date, or a United States patent issued as of the Effective Date (a “Claim Against You”), and shall indemnify you for any damages, attorney fees and costs finally awarded against you as a result of, and for amounts paid by you under a court-approved settlement of, a Claim Against you; provided that 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 (provided that we may not settle any Claim Against You unless the settlement unconditionally releases you of all liability); and (c) provide to us all reasonable assistance, at our expense. In the event of a Claim Against You, or if we reasonably believe the HighGround Services may infringe or misappropriate, we may in our discretion and at no cost to you (i) modify the HighGround Services so that they no longer infringe or misappropriate, without breaching our warranties under “our Warranties” above, (ii) obtain a license for your continued use of the HighGround Services in accordance with this Agreement, or (iii) terminate your user subscriptions for such HighGround Services upon 30 days’ written notice and refund to you any prepaid fees covering the remainder of the term of such user subscriptions after the effective date of termination.
b. Indemnification by You. You shall defend us against any claim, demand, suit or proceeding made or brought against us by a third party alleging that your Data, or your use of the HighGround Services in breach of this Agreement, infringes or misappropriates the intellectual property, privacy or confidentiality rights of a third party or violates employment, privacy, confidentiality or other applicable law (a “Claim Against Us”), and shall indemnify us for any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a court-approved settlement of, a Claim Against us; provided that 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 (provided that you may not settle any Claim Against us unless the settlement unconditionally releases us of all liability); and (c) provide to you all reasonable assistance, at your expense.
c. Exclusive Remedy. This Section 8 (Mutual Indemnification) 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.
9. LIMITATION OF LIABILITY
a. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUTOF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) SHALL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR HIGHGROUND SERVICES).
b. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
a. Term of Agreement. This Agreement commences on the Effective Date and continues until expiration or termination as provided herein.
b. Term of User Subscriptions. User subscriptions purchased by you commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein.
c. Termination for Cause. 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.
d. Refund or Payment upon Termination. Upon any termination for cause by you, we shall refund you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by us, you shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
e. Return of your Data. Upon request by you made within 30 days after the effective date of termination of a HighGround Services subscription, we will provide you with an opportunity to export your Data in comma separated value (.csv) format. After such 30-day period, we shall have no obligation to maintain or provide any of your Data and shall thereafter, unless legally prohibited, delete all of your Data in our systems or otherwise in our possession or under our control.
f. Surviving Provisions. Section 4 (Fees and Payment for HighGround Services), 5 (Proprietary Rights), 6 (Confidentiality), 7(c) (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10(d) (Refund or Payment upon Termination), 10(e) (Return of your Data), 11 (Notice, Governing Law, Jurisdiction) and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
11. NOTICE, GOVERNING LAW, JURISDICTION
a. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to you shall be addressed to the relevant billing contact designated by you. All other notices to you shall be addressed to the relevant HighGround Services system administrator designated by you.
b. Agreement to Governing Law and Jurisdiction. Each party agrees that this Agreement shall be governed by the laws of the State of Illinois without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the courts of the Northern District of Illinois.
c. Binding Arbitration. Each party agrees that (a) this Agreement and all disputes, controversies, or claims arising out of or relating to it, or goods and/or services provided shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association (“AAA”) and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA (“Rules and Procedures”); (b) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and us; (c) the arbitrator shall apply Illinois Law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (d) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration will decide your and/or our individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; and (e) with the exception of subpart (d) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (d) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor us shall be entitled to arbitrate the dispute.
12. GENERAL PROVISIONS
a. Export Compliance. The HighGround Services, other technology we make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit users to access or use HighGround Services in, or by foreign persons associated with, a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
b. Anti-Corruption. 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 (legal@HighGround.com).
c. 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. HighGround does not provide legal, employment or tax advice, and is not a professional employer organization.
d. Publicity. Either party may (i) issue press releases regarding this Agreement, and (ii) include the name or Marks of the other party in lists of clients or vendors and other marketing materials, provided such use is in accordance with the other party’s standard guidelines.
e. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement except for Tango Card, Inc.
f. Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.
g. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
h. Attorney Fees. You shall pay on demand all of our reasonable attorney fees and other costs incurred by us to collect any fees or charges due us under this Agreement following your breach of Section 4(c) (Invoicing and Payment).
i. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, we shall refund to you any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
j. Entire Agreement. These Terms and all Order Forms constitute the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.