Client Software Agreement
Who We Are
The Predictive Index, LLC (“PI,” “we,” “our,” or “us”) is a cloud-based SaaS platform that provides our Clients with Talent Optimization software and other products (collectively, the “Software”).
Who is a Client?
“Clients” (or “you”) are any users that have submitted an Order (as defined below) or are otherwise permitted by PI to use our Software (e.g. free Behavioral Assessment), whether you have discovered PI by:
- visiting our website (e.g. Hire Basic); or
- working with either: (a) our PI direct sales team; or (b) a Partner, who is reselling our Software.
To be clear, unless you are a Client, you are not authorized to use our Software.
“Partners” are independent entities that are separate from PI and have been granted limited rights to resell and teach our Software to Clients. Partners often provide Clients with hands-on expertise on how to use the Software, so Partners may separately sell you (i) services to supplement or assist you with your use of the Software (and are not included in your Software), and/or (ii) other services that may not be relevant to PI or our Software (“Non-SaaS Services”). Therefore, you should think of Partners as separate vendors apart from PI. Partners are not Affiliates of PI, so they cannot make any representations about PI, nor bind PI to any obligations on our behalf. If you are not working with a Partner, don’t worry about references to Partners below.
- Modules; Module Tiers; Hire Basic
- “Modules” are PI’s specific Software products (e.g. Hire, Inspire, Design or Diagnose).
- “Module Tiers” are tiers or levels of Modules that are defined and limited by quantity, quality and/or pricing (this includes but is not limited to Hire Basic).
- “Hire Basic” is a type of Module Tier that Clients may order a free subscription for directly on our website. Hire Basic Clients’ access to Modules is limited as specified on our website, and Hire Basic Clients are bound by this Agreement.
- Module Tier Limits
You agree that you will not exceed the limits set forth in your applicable Module Tier(s) (“Module Tier Limit”). You may upgrade your Module Tier at any time by contacting PI or your Partner or by submitting an Order online. Use of the Module in excess of the Module Tier Limit is otherwise prohibited and PI reserves the right to suspend or terminate a Client’s subscription accordingly.
- Modules; Module Tiers; Hire Basic
- Your Order
- You may order Software by: (i) submitting to us a signed Order Form; (ii) clicking “Submit” and submitting an order online through PI’s website; or (iii) by any other means PI deems to be acceptable (“Order”).
- By submitting an Order, the Client agrees to be bound by the terms of this Agreement and PI will grant Client a non-exclusive, non-transferable and revocable subscription to use our Software.
- Your Order will specify Module/Module Tiers and applicable pricing. As mentioned above, for Hire Basic Clients the Module Tier will be a free but limited-use Module Tier.
- For the purposes of this Agreement, the Start Date will be the date on which your Order has been submitted to PI.
Fees and Payments
You must pay all fees specified in your Order. Except as otherwise specified, (i) your subscription fees are based on the Modules and/or Module Tier(s) purchased, (ii) payment obligations cannot be cancelled and fees paid cannot be refunded, and (iii) your Modules and/or Module Tier(s) cannot be decreased during the relevant subscription term.
Subscription fees are assessed on an annual basis and are due on or before the Start Date (as indicated on your Order) and annually thereafter. If you purchase additional Modules or you upgrade your Module Tier, you will need to submit a new Order, which will include the fees for the additional Modules and/or Module Tiers prorated from the activation date for the remainder of the Term. Payments that are more than thirty (30) days late may incur a penalty interest rate of two percent (2%) per month, or the maximum rate permitted by law, whichever is less.
Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively “Taxes”). You are responsible for paying all applicable Taxes from your purchase. If we have the legal obligation to pay or collect Taxes for which you are responsible under this Section, you will receive an invoice that you must pay unless you can show a valid tax exemption certificate authorized by the appropriate taxing authority.
Term and Termination
- Term of Agreement
This Agreement begins on the date you submit your Order and continues until all applicable subscriptions have terminated or expired.
- Term of Subscription
The term of each Module subscription is specified in your Order (“Term”). Subscriptions will automatically renew for additional periods equal to the expiring subscription or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription Term. The pricing during any renewal term will be at the list pricing in effect at the time of renewal. Modules or Module Tiers (i.e. upgrades) added during the Term will renew along with your original subscription, unless otherwise specified. The Term for Hire Basic Clients will be for one year and will automatically renew for additional one-year periods, until either party chooses to terminate use or access in accordance with this Agreement.
Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of the period; provided that such breach is capable of being cured as determined by PI; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, Receiving Partyship, liquidation or an assignment for the benefit of creditors.
- Suspension of Software
We may suspend the Software at any time, with or without cause (e.g. technical upgrades/fixes, etc.). If, in our reasonable discretion, we believe that your use of the Software is in breach of this Agreement, or your use otherwise threatens the security, integrity or availability of the Software, we may immediately suspend your subscription.
Client Account Responsibilities And Support
- Account Administration
Your Order must specify one (1) employee as your “Key Contact” who has the authority to represent you, to access Client Data, and act as your designated point of contact for all data privacy and protection authorizations. The Key Contact will have full administration rights and can designate users and their permissions, including allowing other account users to access Client Data. PI is entitled to rely on any and all actions taken and instructions given by the Key Contact and any other people using your accounts.
- Systems Responsibilities
You are solely responsible for the set-up, maintenance and security of the computer and/or network connection(s) used for accessing the Software. We cannot guarantee that the Software will function properly or that you will have access to all features if you do not regularly update your internet browsers and/or other systems.
- Client Support
Phone and email support is included at no charge to Clients. Phone support is available from 8:30am to 5:30pm EST (Eastern Standard Time) Monday through Friday, with reduced hours during U.S. holidays. While we accept email support questions 24 hours per day x 7 days per week, responses to emails are provided only during phone support hours. We will attempt to respond to email support questions within one (1) business day, but do not guarantee any specific response time.
Client’s Authorized Use and Restrictions
You make the following representations and warranties regarding your use of the Software:
- You will comply with all applicable Laws while using the Software, and you acknowledge that PI is not responsible for advising you on compliance with any applicable Laws.
- You will use our Software for internal, legitimate business use only, and therefore, you will not sell, resell, license, sublicense, distribute, make available, or grant rights in the Software, or any portion thereof, or otherwise use the Software for the benefit of anyone other than you.
- You will not use the Software to store or transmit malicious code or infringing, libelous or otherwise unlawful material, or to store or transmit material in violation of any third-party privacy rights.
- You will not attempt to gain unauthorized access to the Software or related systems or networks or disrupt the integrity or performance of the Software or third party data contained therein.
- You will not allow access to or use the Software in a way that circumvents a contractual usage limit.
- You will not use, modify, copy, or create derivative works based on the Software or other Intellectual Property, or any part, feature, function, or user interface thereof, except as expressly permitted herein. PI shall own all derivative works. You will not allow access to or use our Intellectual Property, except as expressly permitted herein.
- You will not disassemble, reverse engineer, or decompile the Software, or any part thereof, or otherwise access our Software to copy the ideas, functions, graphics, or other features or to build a competitive or “preparatory” product or service.
- You will not remove our logo and/or trademark from the Software or any portion thereof.
- You will not access the Software if you are a competitor or to monitor the availability, performance, or functionality or for any other benchmarking or competitive purposes.
- You acknowledge that our Software is not designed to comply with industry-specific regulations such as HIPAA, GLBA, or FISMA. Therefore, you will not store or transmit any communications subject to these laws in or through the Software.
- You agree not to export or re-export the Software except in full compliance with all United States laws, rules, decrees, regulations, and executive orders, including without limitation the Export Administration Regulation of the U.S. Department of Commerce and the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. Without limiting the foregoing no Software may be exported or re-exported into (or to a legal permanent resident of) any country to which the United States embargoes goods or to anyone on the United States Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List.
Software Demonstrations and Free Behavioral Assessment
- Software Demonstrations and Free Behavioral Assessments
If you register on our website to take a free Behavioral Assessment (“BA”) or request a demonstration of any of our Software, additional terms and conditions may apply and are hereby incorporated into this Agreement by reference.
- Data Use
Any data you enter into the Software during your demonstration or when taking the free BA may be permanently lost unless you become a Client or export such data during the demonstration or upon taking the free BA. The free BA and the Software used during the demonstration are provided “as-is” without any warranty and PI will not have any indemnification obligations with respect to the Software used. Without limiting the foregoing, PI does not represent or warrant to you that: (a) taking the free BA or observing a demonstration will meet your requirements; and (b) taking the free BA or the demonstration of the Software will be uninterrupted, timely, secure, or free from error. Notwithstanding anything to the contrary herein, you shall be fully liable to PI for any damages arising out of your use of the Software while taking the free BA or during a demonstration, for any breach by you of this Agreement and for any of your indemnification obligations hereunder. In no event should you enter, or cause to be entered, any data of any individual who is not directly involved in the Software demonstration or who is not personally taking the free BA. You represent and warrant that you have obtained all necessary consents, or otherwise have a lawful basis, to enter, or cause to be entered, all data entered during the free BA or during the Software demonstration.
Client Data and Privacy
- Ownership and Representations
As between the parties, you own and retain all rights to the Client Data and this Agreement does not grant us any ownership rights therein. You represent and warrant that you have obtained all necessary consents or otherwise have the right to disclose the Client Data, or store the Client Data on our platform so that our processing of Client Data in the performance of this Agreement does not violate any third party rights.
- Our Use of Client Data
You grant us the right to access and use the Client Data as necessary to provide you with the Software and for any other permitted use under this Agreement. If you use the Software on behalf of another party, then you represent and warrant that you have all necessary permissions to do so. You grant us the right to access and use the Client Data for management and administration and to provide assistance in using the Software. We may also collect (via the Software, Non-SaaS Services, or in any other permitted manner), store, and use the anonymized Client Data and information for scientific research, benchmarking, and to continue to improve our business operations and the Software. Use of Client Data in this manner is standard in the assessment industry and helps us continually develop our Software based on updated trends and research. All Client Data will be anonymized 120 days after termination or expiration, or upon your earlier written request. After anonymization, we will not be able to trace the Client Data back to you. The rights granted hereunder will continue after termination or expiration of this Agreement.
- Sensitive Information
YOU AGREE NOT TO USE THE SOFTWARE TO COLLECT, MANAGE, OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SOFTWARE TO COLLECT, STORE OR MANAGE SENSITIVE INFORMATION.
- Client Data Access after Termination
Although you do not have any ownership rights in the assessment reports generated during the Term, you can continue to use them after this Agreement has terminated or expired. You can make a written request within ninety (90) days after termination or expiration of the Agreement to obtain copies of all Client Data that is then in our possession or control. If we receive a request more than ninety (90) days after termination or expiration of the Agreement, we will have no obligation to maintain or provide you with the Client Data and the Client Data will thereafter be anonymized and untraceable.
- Privacy Laws; EU/EAA Processing
PI Representations, Warranties & Disclaimers
- Our Warranties
We warrant that during an applicable subscription Term we will not materially decrease the overall security or functionality of the Software. For breach of a warranty above, your exclusive remedies are those contained herein.
- General Disclaimers
We do not warrant that the Software will perform in accordance with any specifications, documentation, or other standards, nor do we make any warranties as to the results obtained from the use of the Software. We do not warrant the Software will perform in an uninterrupted capacity, be error-free or bug-free, or provide complete or accurate data. Use of the Software and reliance thereon is at your sole risk. We shall not be liable to you or any other entity or person for the inability to use the Software , or for any inaccuracies, errors, omissions, delays, computer viruses or other infirmity or corruption, damages, claims, liabilities, or losses, regardless of cause, in or arising from the use of our Software.
Although we will provide you with some assistance in your use of the Software, the Software is provided on an “as-is” basis and without warranty. No warranties, either express or implied, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, title, non-infringement, or any other type is provided.
- Non-SaaS Services Disclaimers
We do not make any representations or warranties regarding the Non-SaaS Services. In no event shall PI have any responsibility or liability for the administration or performance of Non-SaaS Services or for any documentation or information not developed by PI that is distributed or used during the Non-SaaS Services. Any Non-SaaS Services must be arranged between you and your Partner separately.
Indemnification, Liability And Confidentiality
- Indemnification by Us
We will indemnify, defend and hold you harmless, at our expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against you (and your officers, directors, employees, and agents) to the extent that such Action is based upon or arises out of infringement or misappropriation of any patent, copyright, trade secret, proprietary information or intellectual property right by reason of your authorized use of the Software and to defend you in any suits at law or in equity arising therefrom to which you may be made a party. The foregoing indemnity shall not apply to the extent that the Action is caused by or results from: (a) your combination or use of the Software with software, services, products or information developed by you or any third party, if the Action would not have existed but for such combination or use; (b) unauthorized modification of the Software by anyone other than you or us (or our respective designees), if the Action would have been avoided by use of the unmodified Software; (c) your continued allegedly infringing activity after receiving notice thereof or after being provided modifications, or a new Software version or release, that would have avoided the alleged infringement; (d) your use of the Software in breach of this Agreement or any other documentation provided to you by us; or (e) any Action related to or arising from the Non-SaaS Services. You will: (x) notify us in writing within thirty (30) days of your becoming aware of any such claim; (y) give us sole control of the defense or settlement of such a claim; and (z) provide us (at our expense) with any and all information and assistance reasonably requested by us to handle the defense or settlement of the claim. We shall not accept any settlement that (i) imposes an obligation on you; (ii) requires you to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on you without your prior written consent.
- Indemnification by You
You will indemnify, defend and hold us harmless, at your expense, against any third-party Action brought against us (and our officers, directors, employees, agents, service providers and licensors) to the extent that such Action is based upon or arises out of (a) your unauthorized or illegal use of the Software, (b) your noncompliance with or breach of this Agreement, (c) your use of third-party products, or (d) the unauthorized use of the Software by any other person using your account. We will: (x) notify you in writing within thirty (30) days of our becoming aware of any such claim; (y) give you sole control of the defense or settlement of such a claim; and (z) provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
Notwithstanding anything to the contrary in this Agreement, PI’s maximum aggregate liability to you related in any way to or in connection with this Agreement, including your use of the Software, shall be limited to the amount of fees actually paid pursuant to this Agreement over the twelve (12) month period immediately preceding the circumstance giving rise to your claim for indemnification. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS, REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT ANY PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
“Confidential Information” means all information provided by either party (“Disclosing Party”) to the other (“Receiving Party”), whether orally or in writing that is designated as confidential or is, by its nature, deemed to be confidential. Confidential Information will include Client Data, PI’s assessments and reports, the features and functionalities of the Software, information about the Disclosing Party’s business plans, technical data, and the terms of your Order and this Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party before receipt from the Disclosing Party. The Receiving Party will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than commercially reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Disclosing Party, the Receiving Party may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Other Important Stuff
- Reservation Of Rights
Subject to the limited rights expressly granted hereunder, we reserve all right, title and interest in and to the Software, including all related Intellectual Property rights, and you shall not make a claim to the contrary. For the avoidance of doubt, this reservation of rights specifically includes, without limitation, the assessments and any reports generated via the Software distributed to you during the Non-SaaS Services. You acknowledge that you have not been granted any rights, except as expressly provided herein, and that misappropriation or unauthorized disclosure or use of the Software or Intellectual Property by you or others would cause irreparable harm in a manner for which damages would not be an adequate remedy, and therefore, we are entitled to obtain injunctive or equitable relief to restrain any actual or threatened breach of the Agreement and we are further entitled to immediately suspend access to your account(s).
For any material changes to this Agreement, we may make changes at any time by providing you with notice (which may be by email notice to your Key Contact or by posting a notice on our website or through the Software). If you do not agree to these changes, you have thirty (30) days from the date of notice to notify us that you opt out of the modified terms, in which case the previous terms will apply to your use of the Software for the remainder of the then-current Term, after which your right to use the Software shall terminate. For any non-material changes to this Agreement, we reserve the right to make such changes at any time without notice (e.g. typos or non-material clarifications).
- Governing Law
The State of Delaware’s laws, except for conflict of laws rules, will apply to any dispute related to this Agreement. The State of Delaware will serve as the venue and have exclusive jurisdiction for any action or purpose relating to this Agreement. If any action is brought to enforce or interpret this Agreement, the prevailing party will be entitled to recover its attorney’s fees and costs or any other appropriate relief, whether in the same or a separate action.
- Entire Agreement
Neither party may assign any of its rights or obligations under this Agreement to anyone else, without the other party’s prior written consent. The parties may assign this Agreement without the other party’s consent only in connection with a merger, acquisition, or by a sale of substantially all of its assets. This limited right of assignment does not apply if the assigning party is acquired by, sells substantially all of its assets to, or has a change of control in favor of a direct competitor of the other party, in which case this Agreement can be terminated without fault upon written notice.
- Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint, venture, agency, fiduciary or employment relationship between the parties.
- Third-Party Beneficiaries
There are no third-party beneficiaries under this Agreement.
- Force Majeure
We will not be held liable for delays or for any failures in the performance of the Software caused by any acts beyond our control, which includes, without limitation, acts of God, acts of war, hostility, terrorism or sabotage, natural disasters, or electrical, internet or telecommunication outages not caused by us, governmental restrictions, or other events outside of our control. We will use reasonable efforts to mitigate the effects of any force majeure event.
Our failure to enforce our rights under this Agreement will not be construed as a waiver of those rights.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void without any effect to the remaining provisions.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void without any effect to the remaining provisions.
“Action” has the meaning set forth in Section 35.
“Affiliates” means any entity that PI or Client directly or indirectly controls, or is controlled by, or is otherwise under common control with respectively.
“Agreement” has the meaning set forth in the Preamble.
“Client” has the meaning set forth in the Preamble.
“Client Data” means all information that you submit or that is collected via the Software or Non-SaaS Services.
“Confidential Information” has the meaning set forth in Section 38.
“Disclosing Party” has the meaning set forth in Section 38.
“Hire Basic” means the subscription for a limited version of the Software at no cost or fee.
“Intellectual Property” means all text, documentation, artwork, computer code, functionality, graphics, photographs, videos, sounds, music, user and visual interfaces (and the design, structure, expression, layout, color scheme, and overall appearance thereof), trademarks and logos, and specifically including but not limited to, the Behavioral Assessment and its associated reports/descriptions, the Cognitive Assessment, and the Software, that are owned, controlled, or licensed by PI and is protected by trade dress, trademark and copyright laws, including various other intellectual property rights and unfair competition laws.
“Key Contact” has the meaning set forth in Section 10.
“Laws” means all applicable federal, state and local laws, rules, decrees, regulations and ordinances.
“Module” has the meaning set forth in Section 1(a)(i).
“Module Tier” has the meaning set forth in Section 1(a)(ii).
“Module Tier Limit” has the meaning set forth in Section 1(b).
“Non-SaaS Services” means any workshops, training, technical assistance or consulting performed by a Partner, which includes any consulting services that are developed solely by the Partner as part of their regular business activities unrelated to PI.
“Order” has the meaning set forth in Section 2(a).
“Order Form” means the order form issued to you by PI and does not include any order form or invoice issued to you by a Partner or other third party.
“Partner” has the meaning set forth in the Preamble.
“Predictive Index” or “PI” has the meaning set forth in the Preamble.
“Receiving Party” has the meaning set forth in Section 38.
“Sensitive Information” means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to the Health Insurance Portability and Accountability Act, the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Special Categories of Personal Data.’
“Software” has the meaning set forth in the Preamble.
“Taxes” has the meaning set forth in Section 5.
“Term” has the meaning set forth in Section 7.