Terms and Conditions

 

1. SOLVE Pro Products and Services. Commencing on the Effective Date, HCMI will provide Client and its Affiliates (defined below) with the Products and Services specified and described below:

  • a)  SOLVE Workforce Intelligence. HCMI will provide Client with fully-secure web-based access to SOLVE as a hosted software Product (to be hosted by Microsoft).

  • b)  Optional Products and Services.  Subscribing Company may elect from time to time to have HCMI deliver additional Professional Services, including but not limited to configuration of additional analytics tools, project management or other advisory or configuration Services.  The scope of and additional terms applicable to such Services will be subject to mutual written agreement by the parties.

  • c) General.  Certain Products or Services may require access to certain HR records, operational and financial information (such as detailed current and historical workforce data, primary job roles, responsibilities, HR transactions, reporting and systems data where used to store or process HR or transactional data).  All such data and any similar data related to Client, its Affiliates or their respective employees or customers (collectively, “Client Data”) will be Client confidential information and will remain the sole property of Client and be subject to all terms and conditions of this Agreement pertaining to confidential information.  It is understood and agreed that Human Capital Management Institute Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations in Client’s operations shall be the responsibility of, and made by, Client. In connection with its Services hereunder, Human Capital Management Institute shall be entitled to rely on all decisions and approvals communicated in writing by the Client.

  • d)  Compliance with Laws; Data Security.  HCMI shall perform its obligations under this Agreement in accordance with all applicable laws, orders, rules, and regulations (whether federal, state or local) (“Laws”) and represents and warrants that the Products and Services will at all times comply with all applicable Laws. Without limiting the generality of the foregoing, HCMI represents and warrants that the Products and Services will comply with all Laws applicable with respect to security, storage and transmission of information, including without limitation data security Laws and Laws relating to the protection of personally identifiable information.  Further, HCMI and the Products and Services will at all times comply with HCMI’s data security and data privacy policies attached as Exhibit B hereto.  If Client adopts a data security policy that is, in one or more respects, more stringent or protective of Client data and information than is HCMI’s data security policy, or if Client otherwise determines that HCMI’s data security policy is not sufficient in any respect, then the parties agree to meet discuss in good faith modifications to this Agreement in order to ensure HCMI’s compliance with Client’s practices and policies regarding data and information security.  If after a reasonable period of time (not to exceed 60 days) the parties are unable to agree on such modifications to this Agreement, Client may terminate this Agreement upon written notice to HCMI. 

  • e)  License Grants. HCMI hereby grants to Client a non-exclusive, non-transferrable (other than as contemplated by Section 13), license to access and use SOLVE during the Term solely for the internal business purposes of Client and its Affiliates.

  • f)  Certain Definitions.  “Affiliate” means an entity that controls, is controlled by or is under common control with Client or HCMI, as applicable.  “Control” means the ownership of 50% or more of an entity’s stock or voting interests.  “Documentation” means all documentation, user manuals, training and support materials and other information provided by HCMI to Client or that is otherwise made available by HCMI with respect to the Products and Services.  “Specifications” means all descriptions of the content, functionality, performance metrics and specifications of the Products and Services contained in Documentation.

2. Pricing. The fees for the Products and Services will be as set forth in Exhibit A. 

3. Payment of Invoices. Properly submitted accurate invoices shall be due and payable within thirty (30) days from receipt of the invoice. Invoices for Products will be sent following the delivery of the Products, or if software is available on a hosted basis, the first date of Client’s access thereto, and fees for SOLVE will be payable annually in advance.  Services will be invoiced monthly in arrears.

 

4. Term; Termination.

  • a)  Unless terminated sooner in accordance with its terms, this Agreement shall terminate on the completion of Human Capital Management Institute’s Services hereunder. Notwithstanding the forgoing, this Agreement shall remain in effect during the performance of Services and thereafter for so long as Client subscribes to SOLVE or other hosted software Products (the “Term”). 

  • b) After expiration of the Term, this Agreement may be terminated by either party at any time by giving written notice to the other party not less than 30 calendar days before the effective date of termination. 

  • c)  Either party may terminate this Agreement immediately (i) upon a material breach by the other party of this Agreement that remains uncured 30 days after the breaching party receives written notice thereof or (ii) upon the other party’s bankruptcy or the assignment of all or substantial portion of the other party’s assets for the benefit of creditors, or the appointment of a receiver or a trustee for the other party.

  • d)  HCMI will, for a period of 180 days following the termination or expiration of this Agreement for any reason and at no charge to Client, preserve and make available to Client in such format as Client may reasonably request all data and information stored by Client through the use of hosted Products.

5. Ownership; Intellectual Property.

  • a) Human Capital Management Institute Technology. Human Capital Management Institute has created, acquired or otherwise has rights in, and may, in connection with the performance of Services hereunder, employ, provide, modify, create, acquire or otherwise obtain rights in, various concepts, ideas, methods, methodologies, procedures, processes, know-how, and techniques (including, without limitation, function, process, system and data models); templates; the generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems) (collectively, the “Human Capital Management Institute Technology”).   This Section 5(a) will not be construed to limit in any way HCMI’s obligations pursuant to Section 11.

  • b) Ownership of Deliverables. Except as provided below, upon full and final payment with respect to such deliverables to Human Capital Management Institute hereunder, the deliverables or work product produced or delivered by HCMI to Client under this Agreement (including, but not limited to, all reports, information and other output produced by or that otherwise result from use by the Client of the Products and Services) (the “Deliverables”) shall become the property of the Client. To the extent that any Human Capital Management Institute Technology is contained in any of the Deliverables, Human Capital Management Institute hereby grants the Client, upon full and final payment with respect to such Deliverables to Human Capital Management Institute hereunder, a perpetual, royalty-free, fully paid-up, worldwide, non-exclusive license to use and modify such Human Capital Management Institute Technology in connection with the Deliverables or for Client’s internal use in accordance with this Agreement.

  • c) Ownership of Human Capital Management Institute Property. To the extent that Human Capital Management Institute utilizes any of its property (including, without limitation, the Human Capital Management Institute Technology or any hardware or software of Human Capital Management Institute) in connection with the performance of services hereunder, such property shall remain the property of Human Capital Management Institute and, except for the license expressly granted in the preceding paragraph or in Section 1(g), the Client shall acquire no right or interest in such property. Notwithstanding anything in this Agreement to the contrary, the parties acknowledge and agree that (a) Human Capital Management Institute shall own all right, title, and interest, including, without limitation, all rights under all copyright, patent and other intellectual property laws, in and to the Human Capital Management Institute Technology and (b) Human Capital Management Institute may employ, modify, disclose, and otherwise exploit the Human Capital Management Institute Technology (including, without limitation, providing services or creating programming or materials for other clients).

  • d)  Ownership of Client Property.  Client shall be the sole and exclusive owner of all Client Data and all other property or rights developed or acquired by Client outside the performance of this Agreement, including all intellectual property rights therein.  Upon any request by Client, HCMI shall promptly provide Client with access to any Client Data within HCMI’s possession.  Upon termination or expiration of this Agreement, HCMI shall promptly return to Client any Client Data and, upon Client’s request, deliver written confirmation of such return of all Client Data signed by an authorized representative of HCMI.  HCMI may use Client Data solely to perform Services for Client under this Agreement.

  • e)  Internal Use.  The Client agrees that all Services hereunder and Deliverables shall be solely for informational purposes.  Further, the Products and Services are intended solely for Client’s internal use. The Client further agrees that such Services and Products shall not be used by or provided to any third party, other than Client’s Affiliates, advisors, consultants, directors, contractors, and employees using the Service or Products for the sole benefit of Client and its Affiliates.

6. Limited Warranties.

HCMI represents and warrants that (i) the Products and Services will at all times during the Term conform to the Documentation and Specifications; and (ii) Products will be delivered and maintained free from viruses, backdoor traps, “Trojan Horses,” “time bombs,” spyware or other features that interfere with, delete, damage, monitor, terminate or modify the availability or use of any Product or any information stored on any computer network (“Malicious Code”) and no Malicious Code will be introduced through the performance of any Services; (iii) all Services will be performed in good faith and in a professional and workmanlike manner; and (iv) that the Products and Services do not and will not infringe, misappropriate or otherwise violate any patent, copyright, trade secret or other proprietary or intellectual property right of any third-party.  If Client notifies HCMI that any Service has failed the warranty in clause (iii) above, HCMI will re-perform such Services at no charge to Client. HUMAN CAPITAL MANAGEMENT INSTITUTE DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

7. Limitation on Damages and Indemnification.

  • a) Limitation of Liability.  Except for HCMI’s obligations under Section 7(b) (Indemnification), damages arising from either party’s breach of Section 11 (Confidentiality), damages arising from a breach by HCMI of Section 1(f) (Compliance with Laws; Data Security), and amounts owed by Client pursuant to Section 2, in no event will either party be liable to the other for any claims, liabilities, or expenses relating to this Agreement for an aggregate amount in excess of the fees paid by the Client to HCMI pursuant to this Agreement, except to the extent finally judicially determined to have resulted from the bad faith or intentional misconduct of such party.   Except for HCMI’s obligations under Section 7(b) (Indemnification) and damages arising from either party’s breach of Section 11 (Confidentiality), damages arising from a breach by HCMI of Section 1(f) (Compliance with Laws; Data Security), in no event shall either party, its Affiliates or its personnel be liable for consequential, special, indirect, incidental, punitive or exemplary loss, damage, or expense relating to this Agreement.

  • The limitation on liability and indemnification provisions of this engagement letter shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligence), or otherwise.

  • b) Indemnification. 

    • i) HCMI agrees to defend, indemnify, and hold harmless Client and any of its subsidiaries or Affiliates, and their respective directors, officers, employees, representatives, and agents (the “Indemnitees”) from and against any and all claims, actions, demands, legal proceedings, liabilities, damages, losses, judgments, authorized settlements, costs or expenses, including without limitation reasonable attorneys’ fees, (the “Damages”) arising out of or in connection with any alleged or actual: (i) infringement or misappropriation by HCMI or any Product or Service of a copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any third party; (ii) claim that HCMI has caused bodily injury (including death) or has damaged real or tangible personal property; (iii) breach by HCMI or any of the terms and conditions of this Agreement (including, but not limited to, Section 1(f)); and (iv) claim by or on behalf of HCMI’s contractors, suppliers or employees for salaries, wages or compensation. 

    • ii) Client will promptly notify HCMI of any such claims (provided that any failure to provide such notice will not relieve HCMI of its indemnification obligations except to the extent HCMI’s ability to defend the claim is prejudiced such failure) and to allow HCMI to assume the defense of any such claims.

8. Force Majeure. Neither party shall be liable for any failures or delays resulting from fire or other casualty, vandalism, emergencies, acts of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority or other similar causes beyond its reasonable control.

9. Limitation on Actions. No action, regardless of form, arising under or relating to this engagement, may be brought by either party more than two years after the cause of action has accrued, except that an action for non-payment may be brought by a party not later than one year following the date of the last payment due to such party hereunder.

10. Independent Contractor. It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, an agent, distributor or representative of the other. Neither party shall act or represent itself, directly or by implication, as an agent of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.

11. Confidentiality.

  • a) To the extent that Human Capital Management Institute comes into possession of any proprietary or confidential information of the Client, Human Capital Management Institute will not disclose such information to any third party without the Client’s consent, except (a) as may be required by law, regulation, judicial or administrative process; provided that HCMI will promptly notify Client of such disclosure requirement and cooperate with Client in its efforts to obtain protective treatment for such information, or (b) to the extent such information (i) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure by Human Capital Management Institute in breach hereof, or (ii) is known by Human Capital Management Institute prior to its receipt from the Client without any obligation of confidentiality with respect thereto such information. HCMI agrees that any and all information provided by Client to HCMI or accessed by HCMI in connection with this Agreement, the Products or Services, including any such information provided prior to the Effective Date, will be deemed to be Client's confidential information for purposes of this Agreement.   The existence of and the terms and conditions of this Agreement will also be considered confidential information.

  • b)  During the term of this Agreement and thereafter, HCMI may use Client’s confidential information solely in performing its obligations under this Agreement. However, subject to terms of this Agreement and of this Section 11(b), HCMI may use Client data for research purposes, or in a manner that does not infringe upon client's trade secrets or the privacy rights of Client or its employees, without violating any other part of this Agreement; provided, however, that in all such cases (i) HCMI shall ensure that (A) Client data is aggregated with similar data from other HCMI clients, and (B) all such data will be de-identified and masked such that no person viewing such data or any summaries, compilations, derivatives or extracts thereof could reasonably determine the identity of Client or any of its Affiliates, shareholders, employees or contractors or of any other person; and (ii) HCMI may not use any data or information contained in any “free text” or “open text” fields contained within or made available through the Products or Services, all of which will be deemed Client’s sole property and confidential information.  The foregoing shall apply notwithstanding any conflicting or more permissive terms in the HCMI privacy policy attached hereto regarding data and information entered into HCMI’s SOLVE application or any other Product or Service hereunder. 

  • c)  HCMI will require that its agents, employees, affiliates, contractors and subcontractors (collectively, “Third Party Contractors”) that have access to the Client’s confidential information enter into a written agreement with HCMI that is at least as protective of such confidential information as is this Agreement.  Additionally, HCMI will (i) where practical, provide that Client is a third-party beneficiary of the confidentiality terms of such agreement and (ii) where a Third Party Contractor has breached the terms of such agreement with respect to Client’s confidential information, then upon request of Client, enforce such agreement against that Third Party Contractor.

12. Survival. The agreements and undertakings of the Client contained in the engagement letter to which these terms are attached, together with the provisions of Paragraphs 3, 4(e), 5, 7, 9, and 11 – 16 hereof, shall survive the expiration or termination of this engagement.

13. Assignment. Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations hereunder without the prior written consent of the other party. Notwithstanding the forgoing, either party may assign or subcontract its rights and obligations hereunder to any Affiliate or successor in business without the consent of the other.  This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.  Any assignment or transfer in violation of this section is void.

14. Governing Law and Severability. This Agreement, including the exhibits, shall be governed by, and construed in accordance with, the laws of the State of California (without giving effect to the choice of law principles thereof). The parties also agree to submit to the exclusive jurisdiction of the state or federal courts located in Los Angeles, California for any claims arising under this Agreement and each party submits to the personal jurisdiction thereof.  If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the extent permissible the intent of the parties set forth in this Agreement.

15.  Entire Agreement; Amendments and Waivers.  This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, whether written or oral, with respect thereto.  This Agreement may not be amended or modified except in writing signed by both parties.  A waiver by either party of a breach of this Agreement by the other party or failure to enforce any provisions of this Agreement shall not be construed as a waiver of any subsequent breach or default or of any rights or privileges hereunder.

16.  Notices.  Any notices under this Agreement will be sufficiently given (i) on the date sent by confirmed facsimile, (ii) on the date delivered personally, (iii) one business day after delivered by nationally recognized overnight courier service, (iv) or (v) 3 business days after sent by certified U.S. mail, return receipt requested, in each case to the address or facsimile number specified on the first page of this Agreement. In order to be effective, HCMI must send a copy of any notice hereunder to the attention of Client’s General Counsel, at the same address as provided on the first page of this Agreement. 

17.  Insurance. 

Human Capital Management Institute (HCMI) agrees to and shall maintain for the duration of the contract insurance against claims for injuries to persons, or damages in property which may arise from or in connection with the performance of the work hereunder by the named Client, including HCMI Third Party Contractors, including authorized agents, employees or subcontractors.

 

HCMI minimum scope and coverage of insurance shall be at least the following:

  • Insurance Services Office Commercial General Liability coverage, aka, General Liability in a minimum amount of $2,000,000 per occurrence for bodily injury, personal injury and property damage.

  • Commercial General Liability Insurance or equivalent insurance coverage, the general aggregate of limit being twice the required occurrence limit or $4,000,000.  Products/Completed operations aggregate shall apply separately to this contract/agreement or the aggregate limit shall be twice the required per occurrence limit at $4,000,000.

  • Insurance Services covering Automobile Liability, shall be at least $2,000,000 per each occurrence or accident for bodily injury and property damage on a single limit basis.

  • Workers’ Compensation insurance as required by the federal requirements, and applicable state requirements in the amount of at least $1,000,000 per each occurrence or accident.

  • Professional Liability Insurance and or general umbrella liability insurance in the amount of at least $1,000,000 per occurrence.

 

Human Capital Management Institute (HCMI) agrees to and shall provide upon request of Client, Certificate of Proof of Insurance for all above noted insurance coverage, current and in good standing for the period of time relevant to the a signed contract and for the duration of such contract and period(s) in which HCMI provides services to Client.