Version effective date: 1 September 2022
The General Terms form a contract between you and Energage (“the Agreement”) for use of the Energage Platform. If there are Subscription Services purchased through a Service Order, that Service Order and its terms are also incorporated into the Agreement. This Agreement governs your use of Energage’s website, software, data, and/or other related applications or services including but not limited to translation, educational and support resources and experts, analytics, and individual and organizational-level feedback (together, herein after the “Services”).
As the Customer, you agree to this Agreement by signing a document that references this Agreement (and you expressly agree and consent to using electronic signatures to execute this Agreement or associated documents), or by using the Services, whichever occurs first. If you are an organization, the individual who agrees to this Agreement on your behalf must have the authority to bind you to this Agreement, and both you and such individual represent that to be the case.
In this Agreement, a reference to:
We will provide you with access to, and use of, the Energage Services.
You may order additional Subscription Services at any time by contacting Energage and requesting a Service Order. Any additional Services will be provided through a Subscription, and they will be delivered and invoiced in accordance with these General Terms and any additional terms detailed on the Service Order. If you already have a current Subscription, the additional Services will be invoiced at the prorated amount at the time those Services are added to the Subscription, and any Subscription renewal will include the additional Subscription Services at the annual rate.
Access to, and use of, the Services ordered by you will be terminated at the end of your Subscription Term.
We continually change and improve our Services. Energage may alter the Services at any time. We will provide you with reasonable advance notice if we make a change to the Services resulting in an overall material decrease in functionality of the Services. If we do make a change that results in a material decrease in functionality and you have a Subscription, you may terminate your Subscription under Section 8.4.
If you use any Customer third-party service together with the Services, such as BambooHR, Namely, Slack, and Workday, you acknowledge that the Customer third-party service may access or use the Customer Data. Energage will not be responsible for any act or omission of the Customer third party, including such third party’s use of Customer Data. Energage does not warrant or support any such Customer third-party service, and you should contact that third party for any issues arising from your use of the Customer third-party service.
Energage Subscription Services are invoiced annually beginning on the Contract Start Date and every 12 months thereafter. The Subscription includes use of the Services by a specified number of Users as stated in the Service Order.
Energage One-Time Services are billed on the Contract Start Date.
You agree to pay Energage any fees for Subscription Services you purchase or use, in accordance with the pricing and payment terms presented to you for those Subscription Services in the Service Order, whether you use the Subscription Services or not. Except as indicated in this Agreement or required by law, fees paid by you are not refundable.
Energage may change its fees for Subscription Services at any time. Except where you exceed the number of Users stated in a Service Order, any changes to fees will apply from the start of your next Subscription Term.
Energage reserves the right to calculate the total number of Users periodically and if the number of Users exceeds your current Subscription, Energage may invoice you for the additional Users on a pro-rated basis for the remaining period left in your Subscription Term.
Your Subscription for any Recurring Services will automatically renew at the end of each Subscription Term unless you cancel the automatic renewal of the Services by notifying us at email@example.com at least 30 days prior to the end of the current Subscription Term for the Services. Auto-renewing Subscriptions that are not canceled at least 30 days prior to the end of the Subscription Term will be invoiced to you automatically at a price not greater than 10% above the previous Subscription Term price for the successive Subscription Term, with the payment terms specified in the original Service Order.
Notice of automatic renewal will be provided at least 60 days prior to the end of each Subscription Term.
Automatic renewal does not apply to One-Time Services.
You authorize us to charge fees using the payment method indicated in a Service Order. Unless otherwise agreed, payments for invoices are due 30 days after the invoice date. If you elect to pay by credit card, debit card, or any other billing method that supports automatic recurring payments, we will initially attempt to charge you using that billing method when payment is due, and payments will be considered overdue if payment is not received within 30 days of that due date. You agree to keep your billing and billing contact information current and accurate.
Overdue payments may incur interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue, from the date that the relevant payment was due until that payment has been received. You will be responsible for all reasonable expenses (including lawyers’ fees) incurred by Energage in collecting such overdue amounts, except where:
Unless stated otherwise in the Service Order, all fees for Services exclude sales tax, GST, VAT, or other similar taxes. Except for any income taxes payable by Energage, you are responsible for all other taxes or duties payable under applicable law relating to the Services provided under this Agreement, including any penalties or interest. If Energage is required to collect or pay any taxes on your behalf, we will invoice you for those taxes unless you provide us with valid evidence that no tax should be invoiced.
In the course of using the Services, you or your Users may transfer to us Customer Data containing personal data. You agree and consent to the use, transfer, processing, and storage of Customer Data in accordance with this Agreement.
If you or your Users are based in the European Union while using our Services, we will process your personal information as a data processor on your behalf. In this case, you will be the data controller of the personal information as defined in Article 4(7) of the EU General Data Protection Regulation 2016/679 (GDPR) and the EU e-Privacy Directive (Directive 2002/58/EC).
If requested, we will execute the European Union Standard Contractual Clauses to facilitate the transfer of personal information to countries outside the European Union in accordance with Article 26(2) of the EU Data Protection Directive 95/46/EC.
Under no circumstances will any entity in the Energage Group be deemed a data controller with respect to Customer Data under any relevant law or regulation.
Energage will store and process Customer Data in a manner consistent with industry security standards. Energage has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Customer Data and to mitigate the risk of unauthorized access to or use of Customer Data. Please see Energage Trust and Security information (located here: https://www.energage.com/trust/) for more information about security, data protection and data processing.
Energage will retain backup copies of Customer Data made in the ordinary course of business by Energage, for the purpose of enabling appropriate disaster recovery practices. Despite any other term in this Agreement, Energage will retain these backups for a period determined by us from the time that each backup copy is generated. Thereafter, Customer agrees and acknowledges that Customer Data may be irretrievably deleted from backups.
In this Agreement, Confidential Information means any information disclosed by a party (the “Discloser”) to the other party (the “Recipient”) in connection with the use of the Services that is marked confidential or would reasonably be considered as confidential under the circumstances. Customer Data is the Customer’s Confidential Information. Confidential Information does not include any information that:
The Recipient must:
The Recipient may disclose the Discloser’s Confidential Information to the extent required by law or legal process, but only after it, if permitted by law:
The provisions of Section 4 will supersede any non-disclosure agreement between the Parties and such agreement will have no further force or effect.
In this Agreement, Confidentiality Notice means: (i) the notice given to survey respondents at the time of answering a survey conducted by Energage, including the degree of confidentiality and anonymity that a survey respondent will have when answering survey questions, and/or (ii) the notice given to individual users of our feedback services.
To provide the Services to you, Energage must provide Users with a Confidentiality Notice for each survey conducted.
In this Agreement, Intellectual Property Rights means any and all present and future intellectual and industrial property rights, including any registered or unregistered forms of copyright, designs, patents, trademarks, service marks, domain names, good will and any commercial information. Intellectual Property Rights also include any application or right to apply for registrations of any of these rights, any rights protected or recognized under any laws throughout the world, related to these rights, and anything copied or derived from such property or rights.
You retain all ownership and Intellectual Property Rights to Customer Data. Energage does not claim ownership over any Customer Data. Energage will use Customer Data solely to perform the Services and will ensure that any Personal Information included in Customer Data is properly maintained and protected in accordance with Section 3.
As between Energage and Customer the Raw Data and Aggregate Data are and will remain the exclusive property of Energage.
In this Agreement, Reports means any reports, analysis, or other Aggregate Data or output generated using Energage Services.
For the Term of this Agreement, you grant Energage a worldwide, royalty free license to use, reproduce, distribute, or archive Customer Data for the purposes of providing the Services to you as contemplated by this Agreement.
Subject to the receipt of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to use any Reports which you can (and are authorized to) export through the functionality of the Services for your internal purposes only (in each case subject to any Confidentiality Notices) unless otherwise agreed upon in writing by Energage.
You acknowledge that, in order to ensure compliance with legal obligations, Energage may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates this Agreement (such as when unlawful conduct or content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we reasonably believe violates the law or this Agreement. However, Energage otherwise has no obligations to monitor or review any content submitted to the Services by you or any other person.
If you provide us with any feedback associated with the Services, Energage may use that feedback internally without any obligation to you.
Energage or an Energage Partner may identify you (by company name and logo) as related to an Employer Recognition Program. Energage or an Energage Partner may contact you as part of an Employer Recognition Program. Energage may identify you (by company name and logo only) as an Energage customer in promotional materials or during promotional events.
Should you provide Energage with a testimonial or case study, written permission will be required from your authorized representative prior to Energage publishing any such material.
Energage owns all right, title, and interest in and to the Services and the systems and networks used to provide such Services, including all survey statements and questions, system-generated data (e.g., dashboard data or Reports), modifications, improvements, upgrades, derivative works, and all Intellectual Property Rights in and to any of the foregoing. Except for the express rights granted herein, we do not grant you any other licenses, express or implied, to any of our Intellectual Property Rights, including software, Services, or products. Without limiting the foregoing, nothing in this Agreement or from your use of the Services grants you:
You agree that Energage and the third-party service providers that are utilized by Energage to assist in providing the Services to you have the right to access your account and to use, modify, reproduce, distribute, display and disclose Customer Data to the extent necessary to provide or improve or deliver the Services, including, without limitation, in response to your or your Users’ support requests.
Any third-party service providers utilized by Energage will only be given access to your account and Customer Data as is reasonably necessary to provide the Services and will be subject to: (i) confidentiality obligations which are substantially consistent with the standards described in this Agreement; and (ii) their agreement to comply with the data transfer, processing and protection restrictions applicable to personal information as set forth in this Agreement.
The Services may display content provided by others that is not owned by Energage. Such third-party content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for the content that you provide through the Services. As such, you must ensure that you have all the rights and permissions required to use that content in connection with the Services. Example content includes survey statement and questions not provided by Energage. Energage has no obligation to monitor or review any additional content submitted to the Services by you or a third party.
You are responsible for safeguarding any passwords or other credentials used to access your account. Administrator or manager accounts may not be shared and may only be used by one individual per account. You are responsible for any activity occurring in your account (other than activity that Energage is solely responsible for and is not performed in accordance with your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to, or use of, your account, you should immediately notify Energage.
You are responsible for maintaining and updating your operating systems, Internet browsers, anti-virus software, or other software that you or your Users use to access and use the Services.
Customer agrees during the term of this Agreement, to not opt out of Energage operational communications regarding account administration and support, Services administration and support, Services status, and Recognition Program administration.
You must use the Services in compliance with, and only as permitted by, applicable law. If your use of the Services requires you to comply with your industry-specific regulations applicable to such use, you will be solely responsible for such compliance. You must not use the Services in a way that would subject Energage to any industry-specific regulations (for example, the Children’s Online Privacy Protection Act, the Payment Card Industry Data Security Standard or the Health Insurance Portability and Accountability Act).
If the Services include the disclosure of survey respondent information pertaining to race, nationality, gender, or other protected category information, you agree to use this information only for lawful, non-discriminatory purposes in accordance with the advice of your counsel.
You acknowledge and agree that we are not responsible for any liabilities arising from your violation of this Clause 7.1, and that your violation of this Clause 7.1 will constitute a breach of this Agreement.
You are responsible for your conduct and the conduct of your Users. You must use commercially reasonable efforts to ensure that you and your Users do not:
If a User breaches this Agreement or uses the Services in a manner that Energage reasonably believes will cause Energage liability or disrupt others’ use of the Services, then Energage may request that you suspend or close the applicable User account until the breach has been cured or the use in such manner has stopped. If you fail to comply with such request, then Energage may suspend or close the applicable User account.
Any applicant to an Employer Recognition Program may be disqualified immediately and without notice upon a determination by Energage that any of the following events have occurred:
Should Customer be disqualified, Energage will automatically provide a high-level summary of the basis for disqualification within 30 days of disqualification. Under no circumstances will this explanation compromise the confidentiality of the survey responses or the proprietary methodologies of Energage.
This Agreement begins on the date you first use the Services or sign the Service Order (whichever is earlier) and continues until you stop using the Services or your Subscription ends or otherwise terminates, or if this Agreement is terminated (whichever is earlier).
If this Agreement includes a Subscription, either party may terminate this Agreement to be effective at the end of the then current Subscription Term by providing the other party with written notice of termination at least 30 days prior to the end of a Subscription Term. No refunds will be provided.
Energage may terminate this Agreement for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.
If your Service Order states that your Subscription will not auto-renew, then your account will terminate at the end of your current Subscription Term with no further action required by you.
Each party may suspend performance or terminate this Agreement if the other party:
If we make a change to the Subscription Services resulting in an overall material decrease in functionality of the Services, you may terminate this Agreement immediately by providing notice to Energage. Upon receiving notice of termination from you, Energage will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.
If this Agreement is terminated:
A portion of Energage Services include functionality that enables you to export Customer Data in your account at any time during the Term. If the foregoing functionality is not operational, we may assist you to export any Customer Data that existed in your account at the time of termination, provided you make such request after you stop using the Services and before the end of your Subscription Term (if you have a Subscription). However, we do not guarantee that all Customer Data will be able to be exported and only Customer Data that is permitted to be transferred to you within the terms of any applicable Confidentiality Notice or other privacy setting will be transferred to you. Upon Customer’s written request, Energage will delete all Customer Data from its production environments.
The following clauses will survive the termination of this Agreement: 2, 3.3, 4, 5.3, 5.4, 5.8, 8, 10, 11, 13 and 14.
Each party represents and warrants that:
You will indemnify, defend, and hold harmless Energage, its officers, Board of Directors, and its affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of a third-party claim regarding or in connection with:
Energage will indemnify, defend, and hold harmless you, your officers, Board of Directors, and your affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third-party claim that the technology used to provide the Services to you infringes any Intellectual Property Rights of such third party. However, in no event will Energage have any obligations or liability under this Section arising from:
If we believe the Services may infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then we may:
If we do not believe that the options above are commercially reasonable, then we may suspend or terminate your use of the impacted Services and provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of such Services.
A party seeking indemnification under this Agreement will promptly notify the other party of the claim and cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defense, except that:
Nothing in this Agreement will restrict or limit a party’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under Clauses 10.1 and 10.2. The indemnities in this Agreement are a party’s sole and exclusive remedy under this Agreement for violation by the other party of a third party’s Intellectual Property Rights.
Except as expressly provided in this Agreement and to the extent permitted by applicable law, neither party makes any warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Energage provides the services on an “as is” basis and, except as expressly provided in this Agreement and to the extent permitted by applicable law, we make no representations regarding the availability, reliability, or accuracy of the Services, or regarding any Customer Data or other content associated with your account.
To the extent permitted by applicable law, neither party will be liable for any lost profits, business interruption, replacement Services or any indirect, consequential, special, incidental, punitive, or exemplary damages arising out of or in connection with this Agreement, even if the party knew or should have known that such damages were possible and even if a remedy fails of its essential purpose, and regardless of the theory of liability.
To the extent permitted by applicable law, the aggregate liability of either party arising out of or in connection with this Agreement will not exceed the total amounts paid or payable by you to Energage under this Agreement during the 12 months prior to the event giving rise to the liability or claim.
The limitations of liability in clauses 11.2 (Exclusion of liability) and 11.3 (Limitation of liability) do not apply to violations of a party’s Intellectual Property Rights by the other party or each party’s indemnification obligations under this Agreement.
Energage may amend the General Terms from time to time and the most current version will be posted on the Energage website. If an amendment is material, as determined in Energage’s reasonable discretion, we will notify the Customer Contact by email or when they next log in to your account. Except in the case of an amendment being made to satisfy legal requirements, we will provide you with at least 30 days’ notice of material amendments.
If an amendment has a material adverse impact on you and you do not agree to the amendment, you may terminate the Agreement by notifying firstname.lastname@example.org within 30 days of receiving notice of the amendment. Otherwise, you will have been deemed to have consented to the amendment.
Any amendment to this Agreement that is not made to the General Terms displayed on our website, must be in writing, signed by you and Energage, and must expressly state that it is amending this Agreement.
Before commencing any form of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:
This Agreement is governed by the laws of Delaware, United States of America and each party submits to the exclusive jurisdiction of the courts of Delaware, United States of America, in relation to any proceedings connected with this Agreement.
Nothing in this Agreement prevents a party from seeking a temporary restraining order, injunction, or other equitable relief in relation to a breach (or attempted breach) of this Agreement by the other party.
Neither party may assign this Agreement without the other party’s prior written consent (such consent not to be unreasonably withheld). However, both parties may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of the party’s assets or its business to which the subject matter of this Agreement relates. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.
This Agreement and related Service Orders (including any documents incorporated by reference to a URL), constitute the entire agreement between you and Energage and supersedes any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of this Agreement, and are void.
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, pandemic, or general internet disturbance) that was beyond the party’s reasonable control.
The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.
The use of the terms includes, including, such as and similar terms, will be deemed not to limit what else might be included.
A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.
All notices pertaining to the Agreement must be in writing and will be deemed given when:
Notices to Energage must be sent to Energage LLC at 397 Eagleview Blvd. Ste 200, Exton, PA 19341 and marked to the attention of Legal Department, or by email to email@example.com. Notices to you may be sent to the email address associated with the Customer Contact details in the Service Order. You must keep the contact details associated with your account current and accurate by notifying firstname.lastname@example.org when your contact details change. You may grant approvals, permission, extensions, and consents by email.
To the extent any conflict exists between the documents that constitute this Agreement, the order of precedence will be Service Order then General Terms.
If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed from this Agreement and the remaining terms will remain in full effect.
There are no third-party beneficiaries to this Agreement. Your Users are not third-party beneficiaries to your rights under this Agreement.
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