If you contract with Culture Amp prior to 1 June 2018, or renew that contract prior to 1 June 2018, your use of the Services will be governed by a version of the General Terms, located at https://www.cultureamp.com/terms/terms-010618/. For all other Customers, including any Customers that renew a contract with Culture Amp on or after 1 June 2018, your use of the Services will be governed by the General Terms displayed below.
Version effective date: 1 June 2018
Thanks for taking the time to read our General 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:
These General Terms and the Service Order(s) (together, the Agreement) form a contract between you and Culture Amp. This Agreement governs your subscription to, and use of, Culture Amp’s website and/or other related applications or services (together, 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.
During the Term, we will provide you with access to, and use of, the Services ordered by you as described in the Service Order. You may order additional services at any time during the Term by contacting our Customer Success team. We will invoice you for any additional services you order after the start of the Term at the time those Services are ordered.
We continually change and improve our Services. Culture Amp may alter the Services at any time without prior notice. We will endeavor to provide you with prior notice if we make a change to the Services resulting in an overall material decrease in functionality of the Services. In such cases, you may terminate your Subscription under clause 8.4.
We may limit or suspend the Services from time to time at our discretion (for example, to perform scheduled maintenance or in the event of a security emergency). If Culture Amp limits or suspends the Services, we will endeavor to give you reasonable advance notice so that you can plan around it. However, there may be some situations, such as security emergencies, where it may not be practicable for us to give you advance notice. We will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action.
If you use any third party service with the Services (for example, BambooHR, Namely, Slack or Workday integrations or a web browser), you acknowledge that third party service may access or use the Customer Data. Culture Amp will not be responsible for any act or omission of the third party, including such third party’s use of Customer 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.
Culture Amp Services are billed on a subscription basis (Subscription) and you will be billed in advance on a recurring, periodic basis (called a Billing Cycle). The Billing Cycle for your Subscription is outlined in the Service Order.
You agree to pay Culture Amp any fees for each Service you purchase or use, in accordance with the pricing and payment terms presented to you for those Services in the Service Order. Except as indicated in this Agreement or required by law, fees paid by you are not refundable.
Culture Amp may change its fees for Services at any time. Except where you exceed the User limit indicated in a Service Order, any changes to fees will apply from the start of your next Billing Cycle.
If your use of the Services during a Billing Cycle exceeds the User limit indicated in the Service Order, we may charge you for the additional Users on a pro rata basis for the remainder of that Billing Cycle.
Your Subscription for any Services will automatically renew at the end of each Billing Cycle unless you cancel the automatic renewal of that Service by providing us with written notice:
To avoid doubt, automatic renewal does not guarantee that the price for Services paid during the previous Billing Cycle will remain the same for the next Billing Cycle.
You authorize us to charge for fees using the payment method indicated in the 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 Culture Amp 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 Culture Amp, 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 Culture Amp is required to collect or pay any taxes on your behalf, we will invoice you for those taxes unless you provide us with a 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 considered to be the data controller of the personal information in accordance with Article 26(2) of the EU Data Protection Directive 95/46/EC. If requested, Culture Amp will execute the European Union Standard Contractual Clauses to facilitate the transfer of personal information to countries outside the European Union.
Culture Amp will store and process Customer Data in a manner consistent with industry security standards. Culture Amp 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.
Culture Amp will maintain residual backup copies of Customer Data made in the ordinary course of business by Culture Amp, for the sole purpose of maintaining appropriate disaster recovery practices. Despite any other term in this Agreement, Culture Amp will retain these backups for a period of two years from the time that each backup copy is generated.
In this Agreement, Confidentiality Notice means the notice given to survey respondents at the time of answering a survey conducted by you, including the degree of confidentiality and anonymity (as determined by you on a per survey basis) that a survey respondent will have when answering survey questions.
To provide the Services to you, Culture Amp must provide your Users with a Confidentiality Notice for each survey you conduct. You acknowledge and agree that by conducting any survey using the Services:
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 when required by law or legal process, but only after it, if permitted by law:
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.
You retain all ownership and Intellectual Property Rights to Customer Data. Culture Amp does not claim ownership over any Customer Data. This Agreement does not grant us any licences or rights to Customer Data except for the licences granted in clause 5.3 and 5.4 below, or as otherwise required for us to provide the Services to you or your Users.
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 Customer Data for the purposes of providing the Services to you as contemplated by this Agreement. This licence also extends to any trusted third parties that Culture Amp works with to provide the Services to you.
You grant Culture Amp a perpetual worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, archive, or otherwise exploit Customer Data for purposes of creating and using de-identified aggregated data derived from Customer Data, provided such de-identified aggregated data does not identify the Customer or its Users.
You acknowledge that, in order to ensure compliance with legal obligations, Culture Amp 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 believe violates the law or this Agreement. However, Culture Amp 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, Culture Amp may use that feedback without any obligation to you.
Culture Amp may identify you (by name and logo) as a Culture Amp customer 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.
Nothing in this Agreement or from your use of the Services grants you:
(a) ownership in the Services or the content you access through the Services (other than Customer Data); and
(b) any right to use any Culture Amp trade marks or other Intellectual Property Rights contained in our brand identity.
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.
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.
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 industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless Culture Amp has agreed with you otherwise. You must not use the Services in a way that would subject Culture Amp to any industry-specific regulations without obtaining Culture Amp’s prior written agreement (for example, the Children’s Online Privacy Protection Act, the Payment Card Industry Data Security Standard or the Health Insurance Portability and Accountability Act).
You are responsible for your conduct and the conduct of your Users. You must ensure that you and your Users do not:
(a) misuse the 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 in the Service Order);
(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 Services or any of the software used to provide the Services, or attempt to do so;
(e) directly or indirectly identity a User contrary to the terms of any Confidentiality Notice, or attempt to do so;
(f) transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services;
(g) engage in abusive or excessive use of the Services, which is usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Services for other customers 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 an acceptable level to Culture Amp;
(h) use the 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 Services; and
(j) unless authorized in writing by Culture Amp, lend, resell, lease or sublicense or otherwise use the Services for the benefit of a third party.
(a) ensure that your Users are governed by, and comply with, this Agreement;
(b) obtain any consents required from each User to allow you and the administrators or mangers of your account to engage in the activities contemplated by this Agreement;
(c) obtain any consents required from each User to allow Culture Amp to provide the Services;
(d) not provide any person under the age of 16 with access to the Services.
If a User breaches this Agreement or uses the Services in a manner that Culture Amp reasonably believes will cause Culture Amp liability or disrupt others’ use of the 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.
This Agreement begins on the date you sign the Service Order or first use the Services (whichever is earlier), and continues until your Subscription ends or otherwise terminates, or if this Agreement is terminated (the Term).
Either party may terminate this Agreement by providing the other party with written notice of termination:
(a) 30 days prior to the end of a billing cycle; or
(b) 7 days after the beginning of a new billing cycle.
Culture Amp 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 billing cycle with no further action required by you.
Each party may suspend performance or terminate this Agreement if the other party:
(a) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or
(b) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Culture Amp may terminate this Agreement if any payment owed by you to Culture Amp is more than 30 days overdue.
If we make a change to the Services resulting in an overall material decrease in functionality of the Services, you may terminate this Agreement immediately by providing notice to Culture Amp. Upon receiving notice of termination from you, Culture Amp will provide you with a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.
(a) If this Agreement is terminated: by you due to breach by Culture Amp, we will provide you with a pro rata refund for any fees prepaid by you applicable to the period following the termination of this Agreement; or
(b) by Culture Amp due to breach by you, we will bill you, and you will pay, for any accrued but unbilled fees, and you will remain liable to pay any invoices outstanding on the termination date.
In no event will expiration or termination of this Agreement relieve you of any fees payable for the period prior to the date of termination.
We may assist you to export any Customer Data that existed in your account at the time of termination, provided you make such request before the end of your subscription term. Upon Customer’s request, Culture Amp will delete all Customer Data from its production environments. 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 will be transferred to you.
The following clauses will survive the termination of this Agreement: 2, 3.3, 3.4, 4, 5.3, 5.4, 8, 10, 11, 13 and 14.
Each party represents and warrants that:
(a) it has full power and authority to enter into this Agreement; and
(b) it will comply with all laws and regulations applicable to its provision or use of the Services, as applicable.
You will indemnify, defend, and hold harmless Culture Amp 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:
(a) Customer Data (including claims of Intellectual Property Rights infringement);
(b) your use of the Services in breach of this Agreement; or
(c) your Users’ use of the Services in breach of this Agreement.
Culture Amp will indemnify, defend, and hold you harmless 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 Culture Amp have any obligations or liability under this Section arising from:
(a) use of any Services in a modified form or in combination with materials not furnished or authorized by Culture Amp; or
(b) any content or data provided by you, your Users, or any third parties.
If we believe the Services may infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then we may:
(a) obtain the right for you, at our expense, to continue using the Services;
(b) provide a non-infringing functionally equivalent replacement; or
(c) modify the Services so that they no longer infringe.
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 defence, except that:
(a) any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent (such consent not to be unreasonably withheld or delayed); and
(b) the indemnified party may join in the defence with its own counsel at its own expense
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. Culture Amp 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 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.
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 by you to Culture Amp under this Agreement during the 12 months prior to the event giving rise to the liability.
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.
Culture Amp may amend this Agreement from time to time and the most current version will be posted on the Culture Amp website. If an amendment is material, as determined in Culture Amp’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 our Customer Success team 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 current version displayed on our website, must be in writing, signed by you and Culture Amp, 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:
(a) give the other party notice of the dispute and its nature;
(b) give the other party the opportunity to remedy any breach of this Agreement within 30 days; and
(c) hold good faith negotiations with the other party to settle the disputed matter.
If your principal place of business is in North or South America (as determined by your address in the Service Order):
(a) the Culture Amp party to this Agreement is Culture Amp, Inc. (C3582555) of 660 Market Street, #500, 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.
If your principal place of business is in Africa, Europe or the Middle East (as determined by your address in the Service Order):
(a) the Culture Amp party to this Agreement is Culture Amp Limited (CRN 10067991) of 18 Finsbury Square, London EC2A 1AH, 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.
If your principal place of business is located outside the regions in clauses 13.2 and 13.3 (as determined by your address in the Service Order):
(a) the Culture Amp party to this Agreement is Culture Amp Pty Ltd ACN 138 600 987) of Level 10, 31 Queen Street, Melbourne VIC 3000, 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.
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. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.
The Culture Amp entity which is party to this Agreement is determined in accordance with clause 13 of this Agreement. Despite this, any of the Culture Amp entities referred to in clause 13.2 through 13.4 may undertake the obligations for and on behalf of the Culture Amp contracting entity. We procure that any Culture Amp entity which carries out its obligations under this Agreement must comply with the terms of this Agreement.
This Agreement (including any documents incorporated by reference to a URL), constitute the entire agreement between you and Culture Amp and they supersede 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, 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 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, Level 10, 31 Queen Street, Melbourne VIC 3000, 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 Customer Contact details in the Service Order. You must keep the contact details associated with your account current and accurate by notifying Culture Amp’s Customer Success team 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, European Union Standard Contractual Clauses (if executed by you and Culture Amp) and 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.