Version effective date: 28 October 2019
Thanks for taking the time to read our Starter Kit Terms. We’ll try to keep things simple, but it’s important that you understand your rights and responsibilities, so please keep reading.
In this Agreement, a reference to:
Culture Amp, we, us or our means the relevant Culture Amp entity indicated in clauses 11.1 through 11.3
- the Subscriber, you or your means the entity or person indicated by you to Culture Amp in your account details;
Users means any person or entity to whom you provide access to our Free Services, including any administrators or managers of your account or survey respondents;
Subscriber Data means any content or data that you or your Users submit or transfer to Culture Amp using the Free Services (including personal data or survey responses);
Service Improvement means work carried out by Culture Amp to improve the Free Services including work in respect of benchmarking, text analytics, linkage analysis, attrition prediction, algorithm improvements, comment translation and the development and provision of additional services and functionality; and
Reports means any reports or analysis generated through the Culture Amp platform or other output of the Free Services.
These Starter Kit Terms (the “Agreement”) form a contract between you and Culture Amp. This Agreement governs your use of any Culture Amp free service (details of Starter Kit product plans can be found at: https://www.cultureamp.com/terms/products-and-plans.html as amended from time to time) (the “Free Services”).
1 Free Services
1.1 CULTURE AMP FREE SERVICES
During the Term, we will provide you with access to, and use of, Free Services. You may order paid services (“Service Upgrade”) at any time by contacting our Customer Success team. We will invoice you for any Service Upgrade at the time the Service Upgrade is ordered.
1.2 CHANGES TO OR SUSPENSION OF FREE SERVICES
Culture Amp may alter, limit or suspend Free Services at any time without prior notice to you.
1.3 THIRD PARTY SERVICES
If you use any third party service with the Free Services (for example, BambooHR, Namely, Slackor Workday integrations or a web browser), you acknowledge that third party service may access or use Subscriber Data. Culture Amp will not be responsible for any act or omission of the third party, including such third party’s use of Subscriber Data. Culture Amp does not warrant or support any such third party service, and you should contact that third party for any issues arising from your use of the third party service.
2 Data Protection
In the course of using the Free Services, you or your Users may transfer to us Subscriber Data containing personal data. You agree and consent to the use, transfer, processing, and storage of Subscriber Data in accordance with this Agreement.
If you or your Users are based in the European Union while using our Free Services, we will process your personal information as a data processor on your behalf. In this case, you will be considered to 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).
Under no circumstances will any entity in the Culture Amp Group be deemed a data controller with respect to Subscriber Data under any relevant law or regulation.
Culture Amp has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Subscriber Data and to mitigate the risk of unauthorized access to or use of Subscriber Data.
2.3 DISASTER RECOVERY
Culture Amp will retain backup copies of Subscriber Data made in the ordinary course of business by Culture Amp, for the purpose of enabling appropriate disaster recovery practices. Despite any other term in this Agreement, Culture Amp will retain these backups for a period of up to 90 days from the time that each backup copy is generated. Thereafter, Subscriber agrees and acknowledges that Subscriber Data will be irretrievably deleted from backups.
2.4 SURVEY RESPONDENT CONFIDENTIALITY
You shall not share any Subscriber Data or personal information in a manner inconsistent with this Agreement, your own internal policies and procedures or any applicable privacy law, rule or regulation.
3 Intellectual Property
3.1 INTELLECTUAL PROPERTY RIGHTS DEFINITION
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, trade marks, 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 recognised under any laws throughout the world, related to these rights, and anything copied or derived from such property or rights.
3.2 SUBSCRIBER INTELLECTUAL PROPERTY RIGHTS
You retain all ownership and Intellectual Property Rights to Subscriber Data. Culture Amp does not claim ownership over any Subscriber Data. This Agreement does not grant us any licences or rights to Subscriber Data except for the licences granted in clauses 3.3 and 3.4 below, or as otherwise required for us to provide Free Services to you or your Users.
3.3 LICENCE FOR THE FREE SERVICES
For the Term of this Agreement, you grant Culture Amp a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, or archive Subscriber Data for the purposes of providing Free Services to you as contemplated by this Agreement.
We grant you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to use any Reports which you can (and are authorised to) export through the functionality of Free Services for your internal purposes.
3.4 LICENCE FOR FREE SERVICE IMPROVEMENT
You grant Culture Amp a worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, archive, or otherwise use Subscriber Data for the purposes of Service Improvement and creating de-identified aggregated data (“Data Sets”).Data Sets may be made publicly available and may be used after termination of this Agreement provided that such Data Sets cannot be used directly or indirectly to identify you or your Users.
3.5 SUBSCRIBER DATA REVIEW
You acknowledge that, in order to ensure compliance with legal obligations, Culture Amp may be required to review certain content submitted to Free 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, Culture Amp otherwise has no obligations to monitor or review any content submitted to Free Services by you or any other person.
3.6 SUBSCRIBER FEEDBACK
If you provide us with any feedback associated with Free Services, Culture Amp may use that feedback without any obligation to you.
3.7 MARKETING LISTS
Culture Amp may identify you (by name and logo) as a Culture Amp subscriber in promotional materials or during promotional events. If you do not want your name and/or logo to be used in this way, please contact our Customer Success team.
3.8 CULTURE AMP INTELLECTUAL PROPERTY RIGHTS
Nothing in this Agreement or from your use of Free Services grants you:
(a) ownership in the Free Services or the content (including Reports) you access through the Free Services (other than Subscriber Data); and
(b) any right to use any Culture Amp trademarks or other Intellectual Property Rights contained in our brand identity.
Culture Amp will continue to own all right, title, and interest in and to Free Services and the systems and networks used to provide Free Services, including all 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 including software, services, or products.
3.9 PLATFORM SUB-PROCESSORS
You agree that Culture Amp and the third-party service providers that are utilized by Culture Amp to assist in providing Free Services to you have the right to access your account and to use, modify, reproduce, distribute, display and disclose Subscriber Data to the extent necessary to provide or improve or deliver Free Services, including, without limitation, in response to your or your Users’ support requests.
Any third-party service providers utilized by Culture Amp will only be given access to your account and Subscriber Data as is reasonably necessary to provide Free Services.
4 Account Management
4.1 ACCOUNT SECURITY AND ACCESS
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 Culture Amp is directly 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 our Customer Success team.
4.2 SUBSCRIBER SYSTEMS
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 Free Services.
5 Subscriber Obligations
5.1 LEGAL COMPLIANCE
You must, and must ensure that your employees, contractors and agents only use Free Services in accordance with our instructions and all applicable laws and regulations (including, for the avoidance of doubt, internal company rules and/or privacy laws). You have obtained all consents, as required by applicable law, to:
(a) use Free Services; and
(b) allow Culture Amp to provide Free Services to you.
Except as required by law, Culture Amp takes no responsibility and assumes no liability for your use of Free Services.
5.2 UNACCEPTABLE USES
You are responsible for your conduct and the conduct of your Users. You must ensure that you and your Users do not:
(a) misuse Free Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions we provide;
(b) circumvent or attempt to circumvent any limitations that Culture Amp imposes on your account (such as any User limits set the relevant Free Service product plan);
(c) probe, scan, or test the vulnerability of any Culture Amp system or network, unless with prior written authorization of Culture Amp;
(d) decipher, decompile, disassemble, translate, create derivative works, reverse engineer or otherwise attempt to reconstruct, identify or discover any source code, algorithms, underlying ideas or underlying user interface techniques in the Free Services or any of the software used to provide the Free Services, or attempt to do so;
(e) directly or indirectly identify a User contrary to any privacy setting or confidentiality obligation, or attempt to do so;
(f) transmit any viruses, malware, or other types of malicious software, or links to such software, through the Free Services;
(g) engage in abusive or excessive use of Free Services, which is usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Free Services for other subscribers and their users. Culture Amp will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Culture Amp;
(h) use Free Services to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;
(i) attempt to circumvent any license, timing or use restrictions that are built into the Free Services; or
(j) unless authorized in writing by Culture Amp, lend, resell, lease or sublicense or otherwise use Free Services for the benefit of a third party.
(a) ensure that your Users comply with this Agreement;
(b) not provide any person under the age of 16 with access to the Free Services, unless otherwise permitted by applicable law.
5.4 SUSPENSION OF USERS
If a User breaches this Agreement or uses Free Services in a manner that Culture Amp reasonably believes will cause Culture Amp liability or disrupt others’ use of the Free Services, then Culture Amp 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 Culture Amp may suspend or close the applicable User account.
6 Terms and Termination
This Agreement begins on the date you accept the terms of this Agreement and will continue until the earlier of:
(a) the end of the free trial period as set out in the applicable Free Service product plan;
(b) the start date of any Service Upgrade purchased by you;
(c) termination by Culture Amp pursuant to clause 6.2; or
(d) termination by you pursuant to clause 6.3.
6.2 TERMINATION WITHOUT CAUSE
You agree that Culture Amp may at any time, at its sole discretion, terminate your access to Free Services or any part thereof.
6.3 SUBSCRIBER TERMINATION RIGHT
You may terminate this Agreement at any time by way of written notice to Culture Amp.
6.4 DATA EXPORTS
The Free Services include functionality that enables you to export Subscriber Data in your account at any time during the Term. Unless otherwise required by law, you are solely responsible for exporting your data from Free Services prior to termination of your access to Free Services. If Culture Amp terminates your account, except as required by law, Culture Amp may provide you a reasonable opportunity to retrieve your data.
If you opt to purchase any Service Upgrade we will assist in the migration of any Subscriber Data from the Free Services to that Service Upgrade, however, we do not guarantee that all Subscriber Data will be able to be exported.
Upon Subscriber’s written request, Culture Amp will delete all Subscriber Data from its production environments.
The following clauses will survive the termination of this Agreement: 2.3, 2.4, 3.3, 3.4, 4, 6, 8, 11 and 12.
You represent and warrant that:
(a) you have full power and authority to enter into this Agreement; and
(b) you will comply with all laws and regulations applicable to your use of the Free Services.
8.1 BY SUBSCRIBER
You will indemnify, defend, and hold harmless Culture Amp and its affiliates from and against all liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of any claim regarding or in connection with:
(a) Subscriber Data (including claims of Intellectual Property Rights infringement);
(b) your use of the Free Services in breach of this Agreement; or
(c) your Users’ use of the Free Services in breach of this Agreement
it may suffer or incur as a result of an event that may give rise to a claim under this clause 8.1.
9 Disclaimers and Limitations of Liability
Culture Amp provides the Free Services on an “as is” basis and, except to the extent permitted by applicable law gives no warranties nor makes any representation of any kind including, but not limited to, the availability, reliability, or accuracy of Free Services or any portion thereof, or regarding any Subscriber Data or other content associated with your account.
10.1 AGREEMENT AMENDMENTS
Culture Amp may amend this Agreement or any applicable product plan from time to time and the most current version will be posted on the Culture Amp website.
11 Governing Law and Jurisdiction
11.1 NORTH AND SOUTH AMERICAN SUBSCRIBERS
If your principal place of business is in North or South America (as determined by your address in your account details):
(a) the Culture Amp party to this Agreement is Culture Amp, Inc. (C3582555) of 111 Sutter Street, Level 16, San Francisco, CA 94104, United States;
(b) this Agreement is governed by the laws of Delaware, United States of America; and
(c) 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.
11.2 AFRICAN, EUROPEAN AND MIDDLE EASTERN SUBSCRIBERS
If your principal place of business is in Africa, Europe or the Middle East (as determined by your address in your account details):
(a) the Culture Amp party to this Agreement is Culture Amp Limited (CRN 10067991) of Unit 5, 35 Luke Street, London EC2A 4HL, United Kingdom;
(b) this Agreement is governed by the laws of England and Wales;
(c) each party submits to the exclusive jurisdiction of the courts of England and Wales, in relation to any proceedings connected with this Agreement.
11.3 OTHER SUBSCRIBERS
If your principal place of business is located outside the regions in clauses 11.1 and 11.2 (as determined by your address in your account details):
(a) the Culture Amp party to this Agreement is Culture Amp Pty Ltd ACN 138 600 987) of Level 2, 29 Stewart St, Richmond VIC 3121, Australia;
(b) this Agreement is governed by the laws of Victoria, Australia; and
(c) each party submits to the exclusive jurisdiction of the courts of Victoria, Australia, in relation to any proceedings connected with this Agreement.
12 Other Terms
12.1 ACTIONS BY CULTURE AMP GROUP ENTITIES
The Culture Amp entity which is party to this Agreement is determined in accordance with clause 11 of this Agreement. Despite this, any of the Culture Amp entities referred to in clause 11.2 through 11.3 may undertake the obligations for and on behalf of the Culture Amp contracting entity. Any Culture Amp entity which carries out its obligations under this Agreement must comply with the terms of this Agreement.
12.2 ENTIRE AGREEMENT
This Agreement (including any documents incorporated by reference to a URL), constitute the entire agreement between you and Culture Amp 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 Free Services, do not override or form a part of this Agreement, and are void.
12.3 INDEPENDENT CONTRACTORS
The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.
12.4 NO WAIVER
A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its rights to do so.
All notices must be in writing and will be deemed given when:
(a) verified by written receipt, if sent by postal mail with verification of receipt service or courier;
(b) received, if sent by mail without verification of receipt; or
(c) when verified by automated receipt or electronic logs if sent by email.
Notices to Culture Amp must be sent to Culture Amp Pty Ltd, Level 2, 29 Stewart St, Richmond VIC 3121 Australia 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 contact details in your account details.
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.