Terms of Service

Effective April 2025

Hogan Assessment Systems, Inc. (“Hogan”) is a personality assessment publisher and consulting firm that has created and developed certain products and services, including personality assessments and related reporting, consulting and research services. You (“Company”) are a Hogan customer that desires to purchase Hogan’s products and/or services. Hogan provides the products and/or services to Company subject to these Terms of Service. By accepting such products and/or services pursuant to a Statement of Work (“SOW”) referencing these Terms of Service, Company agrees to these Terms of Service.

These Terms of Service shall remain in effect during the term of any SOW incorporating these Terms of Service by reference. Any deviation from these Terms of Service must be negotiated in a written Master Services Agreement to be executed by both parties.

Definitions

Whenever used in these Terms of Service, the following capitalized terms shall have the meaning set forth below:

“Assessments” shall collectively mean Hogan’s current and any newly-created assessments of any kind, their component scales and any variations of such assessments and scales.

“Authorized User(s)” means those persons who are authorized by Client to have access to the System.  Authorized Users must be current bona fide officers, executives, employees or staff of Client, or contractors engaged by Client, provided such contractors have been informed of, and agree to abide by, the terms and conditions of these Terms of Service.

“Client Data” means any information, including personal information (“PI”) collected, stored, or processed by Hogan including but not limited to Participant name, email, IP address, system user IDs, company identification, responses to assessment items, and results garnered through assessment process, for the purposes described in these Terms of Service. For avoidance of doubt, Hogan does not require the collection, storage or processing of special categories of personal data.

“Confidential Information” means information, including trade secrets, know-how, proprietary information, formulae, processes, techniques and information relating to the disclosing party’s past, present and future marketing, financial, research and development activities, and personal information about employees, policyholders, customers, licensors, contractors and others, that may be disclosed, whether orally or in writing, to the receiving party, or that may be otherwise received or accessed by the receiving party in connection with these Terms of Service, whether transmitted prior to or after the Effective Date, and which is information either identified as being Confidential Information, or which is information that a reasonable business person would understand to be Confidential Information.  Examples of Confidential Information include, but are not limited to, the terms and conditions of these Terms of Service, royalty or compensation rates, customer lists, pricing policies, market analyses, market projections, consulting, sales and marketing methods and techniques, expansion plans, programs, routines, operating systems, internal controls, security procedures, inventions, methods of operation, object and source codes (including updates thereto), and related items, together with all information, data, and know-how, technical or otherwise, included therein, manuals, printouts, notes, and annotations on disks, diskettes, tapes or cassettes, both master and duplicates. Confidential Information  shall not include any information or any portion of the Confidential Information which a party can clearly demonstrate falls within any of the following categories: (i) Confidential Information that, as of the time of disclosure, was already known to the non-disclosing party without obligation of confidentiality, as demonstrated by appropriate documentary evidence antedating the relationship between the Parties; (ii) Confidential Information obtained after the Effective Date by the non-disclosing Party from a third party which is lawfully in possession of such information and not in violation of any contractual or legal obligation to the disclosing party with respect to such information; or (iii) Confidential Information which is or becomes part of the public domain through no fault of the non-disclosing party or its employees or agents.

“Custom Services” means all services agreed to and/or performed by Hogan at Client’s request including, but not limited to, all processing, consulting, research and technology services, and shall be pursuant to a separate SOW executed by Hogan and Client subject to the terms and conditions thereof.

“Deliverables” means those items developed and delivered by Hogan to Client pursuant to a SOW during provision of the Services, including Tools, Reports and Custom Services, and accepted by Client, or delivered via orders through the Hogan Internet AdministrationSystem.

“Hogan Internet Administration System” or “System” means any one of Hogan’s internet system(s) operated by or on behalf of Hogan that incorporates the administration, scoring, users, and report management for the Assessments.

“Intellectual Property” means all intellectual property rights throughout the world, including, without limitation, any: (i) copyrights, trademarks, trade names, domain names, designs and patents, and goodwill associated with trademarks, trade names, domain names, designs, and patents; (ii) ideas, know-how, approaches, methodologies, concepts, skills, techniques and process; (iii) moral rights, author’s rights, and rights of publicity; and (iv) other industrial, proprietary and intellectual property-related rights anywhere in the world, that exist as of the Effective Date or hereafter come into existence, and all renewals and extensions of the foregoing, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation. 

“Materials” means all documents and other materials relating to the Tools (including, without limitation, all copyrightable works of Hogan), as well as all copies of such works in whatever medium fixed or embodied including without limitation test booklets, answer forms, technical manuals, and Reports provided to Client by Hogan under these Terms of Service.

“Participant(s)” means individuals invited by Client to take Hogan’s assessments using a participant user login ID or who create a Participant account in the Hogan Internet AdministrationSystem.

“Preexisting Intellectual Property” means all Intellectual Property (including said rights thereto) that such Party owned prior to the commencement of the Services.

“Reports” means the documents such as graphs and narrative text generated from scoring the Assessments and shall include but not be limited to reports used for individual and/or group selection and development or organizational development.

 “Tools” means all Hogan products supplied to Client under these Terms of Service, including but not limited to the Assessments. 

“Work Product” means all information, documents and copyrightable material and other tangible and intangible materials authored and delivered by Hogan in connection with the Services and included within the Deliverables intended by the parties at the time of creation to be considered a “work made for hire” under copyright laws of the United States of America, but excluding any Hogan Intellectual Property.  In addition, notwithstanding anything to the contrary contained herein, Work Product shall not include any Hogan Intellectual Property embodied or subsisting in any of the following, existing as of the Effective Date or that hereafter come into existence: (i) all tools, inventories, scales, assessments, characteristics, composites, systems, algorithms, scoring keys, individual or collective assessment items/questions; (ii) any and all documents and other materials relating to any of the Hogan Intellectual Property; (iii) any related reports created by Hogan; or (iv) any trademarks, service marks, insignia, symbols, or decorative designs, trade names, domain names, and other symbols and devices associated with Hogan and Hogan’s products and services.

1.      STATEMENTS OF WORK FOR SERVICES

1.1.  Statements of Work. Hogan agrees to provide products and services as requested by Client, which include but are not limited to Assessments, Custom Services, Materials, Reports, Tools as defined herein in Exhibit A, “Definitions” (collectively referred to herein as “Services”), described in a Statement of Work (“SOW”) referencing these Terms of Service.  Each SOW will identify the tasks to be performed, the Deliverables Client will receive from Hogan and any applicable time schedules, fees and expenses for the Services identified in the SOW.  Hogan will not initiate any Services unless it is in response to a written project request from Client evidenced by a fully executed SOW between the parties.

1.2. Governing Agreement. Any valid SOW will reference these Terms of Service as governing the SOW. In the event of any conflict between the provisions of these Terms of Service and any SOW, the provisions of these Terms of Service will govern.

2.      PAYMENT

2.1.  Fees and Taxes. Client agrees to pay Hogan the amounts stated and set forth in any applicable SOW executed by the parties for Services rendered to Client under this and to accept billing and pay for any purchases initiated via the Hogan Internet Administration System including but not limited to report generation or associated rescore fees at the time of order (“Fees”).  All Fees are stated and invoiced in United States Dollars (“USD”), and payment will be made in USD. Client shall be responsible for all taxes, duties, levies, originating bank wire fees and assessments, including but not limited to withholding taxes for any Client personnel, sales and value added taxes and other government assessed fees and payments, levied and payable pursuant to these Terms of Service and any SOW under these Terms of Service.  Each party is responsible for the payment of its own local, national, corporate and personal income taxes.

2.2.  Expenses. Any expenses associated with delivery of the Services will be set forth in the applicable SOW and invoiced as actually incurred. 

2.3.  Invoicing and Payment. Unless otherwise specified in any SOW, invoices will be submitted monthly by Hogan subject to the terms of these Terms of Service and are due and payable by Client to Hogan within thirty (30) days of the date of invoice.  If part of an invoice is disputed, Client shall pay the undisputed portion of such invoice within the payment terms set out in this Section 2.3.

2.4.  Disputed Fees. If Client believes there are errors or discrepancies with respect to any amounts due Hogan pursuant to these Terms of Service, Client agrees to give Hogan written notice thereof within ninety (90) days from the date that the Services which gave rise to the alleged discrepancy were performed. Upon receipt of such notice, the parties will in good faith attempt to resolve the issue by employing the Dispute Resolution Process set out in Section 16 of these Terms of Service.

2.5.  Delinquent Payments. Interest may be assessed on all delinquent payments at the rate of 1.5% per month (18% A.P.R.) together with any court costs, attorney’s fees, and any other costs of collection Hogan may incur to collect delinquent payments.  Hogan reserves the right to terminate Client’s ordering and access privileges as defined in Section 7 in the event payments become more than sixty (60) days past due or from Client’s multiple failure to pay invoices in a timely fashion.  Reinstatement of a suspended account requires Client to pay past due balances in full and may require placing a credit card authorization on file at Hogan’s sole option.  

2.6.  Records and Inspection. Hogan shall maintain complete and accurate accounting records with respect to the Services in accordance with generally accepted accounting principles and shall retain such records for a period of two (2) years following termination or expiration of these Terms of Service or such longer period as required by law.  Client shall have the right, upon reasonable notice, during the term of a SOW referencing these Terms of Service and for up to one (1) year after payment of Hogan’s final invoice, to examine Hogan’s accounting records relating to the direct costs and disbursements made or incurred in connection with the Services.

3.      SERVICES PERSONNEL

3.1. Assigned Personnel; Manner of Performance. Hogan represents that (i) it possesses the skills and expertise required to perform the Services; and (ii) that any individual(s) listed in a SOW who have been assigned to perform Services for Client are qualified to perform the Services.  Hogan shall perform the Services in accordance with the highest level of business and professional ethics. 

3.2.  Removal and Substitute Personnel. Client has the right to request removal of any personnel of Hogan whom Client, in good faith, determines is unqualified or not suitable to perform the Services for Client, which request shall be promptly honored by Hogan.  Proposed substitute personnel assigned to perform the Services shall be subject to Client’s agreement not to be unreasonably withheld.

3.3.  Non-Exclusive. Nothing in these Terms of Service shall be construed as to restrict Hogan from performing consulting or other Services during or after the Term for persons and entities not associated with a SOW referencing these Terms of Service.

4.      INSURANCE

Without limiting any other obligation or liability of Hogan under these Terms of Service, during the Term of any SOW referencing these Terms of Service, Hogan shall maintain insurance coverage with limits not less than those specified below.

(a)            Professional Liability insurance with a limit of not less than five million dollars ($5,000,000.00) each claim;

(b)            Commercial General Liability insurance with a per-occurrence limit of not less than one million dollars ($1,000,000.00);

(c)            Worker’s Compensation and Employer’s Liability insurance, with statutory limits for workers’ compensation and Employer’s Liability limits of one million dollars ($1,000,000.00) per accident; and

(d)            Automobile Liability insurance, with a per accident limit of not less than one million dollars ($1,000,000.00) for all non-owned and hired vehicles.

(e)            Cyber liability with a limit of not less than two million dollars ($2,000,000.00).

5.      CONFIDENTIALITY

5.1.    The parties hereto may exchange certain Confidential Information as defined herein for the purpose of implementing a SOW referencing these Terms of Service.  The disclosing party shall retain all rights to its Confidential Information.  The receiving party shall take such reasonable measures to prevent the unauthorized disclosure to third parties of Confidential Information as it would take to prevent disclosure of its own Confidential Information.  Disclosure will be limited to such employees and agents as necessary to effectuate the terms of these Terms of Service.    Except as necessary for proper evaluation, documents obtained pursuant to these Terms of Service may not be duplicated in any manner without the written permission of the disclosing party; all Confidential Information exchanged pursuant to these Terms of Service must be returned to the disclosing party upon request. 

5.2.  Hogan will not disclose any Confidential Information to any individual or entity not a party to these Terms of Service.  Client acknowledges Hogan may use Client’s name and non-Confidential Information in marketing and research materials and/or for client referrals.

5.3.  Hogan agrees to provide access to Reports and information generated by Hogan that include Confidential Information only to designated Client employees.

5.4. Upon termination of these Terms of Service or earlier upon Client’s request, Hogan shall deliver all items containing any Confidential Information to Client or make such other disposition thereof as Client may direct.

5.5.  Disclosure of Confidential Information to Hogan by Client shall not constitute any option, grant or license to Hogan of any rights now or hereinafter held by Client, its subsidiaries, or any of its affiliated companies.

6.      INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP                                                                

6.1. Hogan’s Rights. As between Client and Hogan, Hogan is deemed to own (i) Hogan’s Preexisting Intellectual Property and any modifications, derivatives or improvements it makes thereto; and (ii) any new Intellectual Property it creates independent of its performing the Services or delivering the Deliverables that, in case of both (i) and (ii) above: (a) do not contain Client’s Preexisting Intellectual Property or Client’s Intellectual Property or any derivative works thereof; or (b) do not use, include or refer to Client’s Confidential Information. Hogan exclusively reserves all rights not expressly granted in these Terms of Service.

6.2. License Grant. As between Client and Hogan, Client owns (i) Client’s Preexisting Intellectual Property, and any modifications, derivatives or improvements made thereto; and (ii) any new Intellectual Property created in connection with the Services and/or Deliverables, except as otherwise set forth in an SOW expressly referencing this Section 6. In the event Hogan’s Intellectual Property or Preexisting Intellectual Property is incorporated into Deliverables or is necessary for Client to utilize Deliverables, Hogan hereby grants to Client an irrevocable, worldwide, nonexclusive, perpetual, royalty-free right and license to use, disclose, reproduce, distribute internally, perform, display and create derivative works of Hogan’s Intellectual Property and/or Preexisting Intellectual Property and the right to authorize others to do any of the foregoing, to the extent incorporated into Deliverables.

6.3. Rights to Deliverables.  Except as provided in Section 6.1 or as specified in a fully executed SOW, the Parties agree that all Intellectual Property in the Deliverables or that result from Services or Deliverables provided by Hogan and its personnel under any SOW shall be the sole and exclusive property of Client and shall be Work Product. If by operation of law any such Intellectual Property is not considered Work Product or is not owned by Client automatically upon creation thereof, Hogan agrees to assign and hereby irrevocably assigns, for good and valuable consideration, all rights, title and interest in and to such Intellectual Property exclusively to Client.

6.4. Client Data. As between the Parties, Client owns all right, title, and interest (including, without limitation, all Intellectual Property Rights) in and to Client Data.

6.4.1.    Limited Rights. Subject to the provisions of these Terms of Service, Client grants to Hogan a limited, revocable license to Client Data for the sole and exclusive purpose of providing the System to store, record, transmit, maintain, and display Client Data only to the extent necessary to provide the System and the Deliverables. Hogan and Hogan personnel may not otherwise, access, collect, store, transfer or otherwise use Client Data except in the interest and on behalf of Client in the performance of these Terms of Service, except Hogan may use any data, other than personally identifiable data, received by Client and/or generated by Hogan in connection with the Services solely for research purposes and product development.

6.5.           Reservation of Rights. Except as expressly set forth herein or in an applicable SOW, Hogan understands and agrees that no license, right, title or interest in or to any Client Preexisting Intellectual Property or Client Intellectual Property is granted hereunder, and Hogan will not gain by virtue of these Terms of Service any rights of ownership in any Intellectual Property or Preexisting Intellectual Property owned by Client. Hogan shall not make, have made, sell, offer to sell, use, disclose, reproduce, distribute, perform, display, modify, copy or create derivative works of any Client Preexisting Intellectual Property or Client Intellectual Property in any form or forum without Client’s prior written consent. Client exclusively reserves all rights not expressly granted in these Terms of Service.

7.      HOGAN INTERNET ADMINISTRATION SYSTEM

•  System. Hogan may provide Client with access to applicable platform(s) within the Hogan Internet Administration System, e.g., Hogan Assessment Link Online (“HALO”), Hogan Talent (“HT”), and/or any other applicable platform(s) within the Hogan Internet Administration System for the intended purpose of administration and management of Hogan’s Services (hereafter referred to as “System”).

•  The System will perform in conformity with the applicable System training documentation.

• The System will work with the the-current version and three (3) prior versions of Microsoft Edge, Mozilla Firefox and Google Chrome Internet browsers.

•  Hogan will provide all training necessary for Client to use the System at no additional cost unless specifically set forth in a SOW.

7.1.4.   Any requested integration or implementation services will be provided pursuant to a SOW at the Fees set forth in the SOW.

• Use and Access.

• Hogan grants Client a non-transferable and non-exclusive license to access and use the System subject to the terms and conditions of these Terms of Service. Access is granted upon issuance by Hogan of an authorized user login ID.

•   Client’s rights to use and access the System extend to Client’s Authorized Users. Authorized Users are subject to the requirements of these Terms of Service with respect to use and confidentiality obligations.

7.2.3.      Client agrees to use the System in accordance with the Hogan-provided System training.

7.2.4.      Client may not assign, convey, sublicense, or otherwise transfer any right, license, or privilege to the System to another party.  Client further agrees not to copy, duplicate, download, or otherwise disseminate the Services to a third party without the explicit written permission of Hogan.  Client further agrees not to modify or alter the physical or electronic characteristics of the System or any aspect of the System electronic environment, and to not be party to any attempt to dismantle, reverse engineer, or electronically intrude into the System.

8.       DATA SECURITY AND COMPLIANCE WITH APPLICABLE LAWS

8.1. Data Security and Privacy. Hogan shall keep in place such technical and organizational measures to protect against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure of or access to Client’s Confidential Information sufficient to comply with the mandatory requirements of applicable data protection laws and in accordance with the highest standards and best practices prevailing in the industry and in accord with Hogan’s Privacy Policy found at  https://www.hoganassessments.com/privacy-policy. Hogan shall implement and maintain a comprehensive written data security policy and reasonable security practices and procedures appropriate to the nature of the System and any Client Data, which policies, practices and procedures will (a) comply with all applicable privacy and data security laws, (b) protect against any anticipated or actual threats or hazards to the security, integrity or loss of information and (c) limit access with appropriate separation of duties. Client may review, upon request, Hogan’s policies, procedures, and practices used to maintain the privacy, security, confidentiality, integrity or availability of Client Data. Hogan shall:       (a) proactively monitor reporting services for known security vulnerabilities and rectify any  vulnerabilities present in Hogan’s systems, (b) engage qualified, independent and reliable third parties to regularly audit (at least once per year) and validate the applicable security measures in place, (c) encrypt Client Data with industry standard encryption levels at all times while in transit over a public network or stored on a Hogan laptop or portable storage media, (d) prohibit employees, contractors and agents from bringing, transporting or transmitting Client Data to their personal computers, e-mail accounts, devices or media, (e) comply with the terms and conditions with regard to Personal; (f) change default security settings (such as, default passwords) and promptly install all security updates and patches made available by the suppliers of any of the third-party products used in connection with the collection, processing, storage or distribution of Confidential Information; and (g) utilize intrusion detection, intrusion prevention, anti-malware software, and antivirus integrity monitoring.

8.2. Security, Audit and Environmental Control.

8.2.1.        Hogan shall maintain antivirus protection software on all platforms within the System. In the event viruses, worms or similar problems are determined to have infected the System, Hogan shall use reasonable efforts to restore the System as quickly as reasonably possible.

8.2.2.        Hogan shall maintain a business continuity and disaster recovery plan and implement the plan in the event of any unplanned interruption in the System. Hogan shall test, review and update the plan using industry best practices.

8.2.3.        Hogan shall maintain complete and accurate records relating to its security practices of any Confidential Information, during the Term and for two (2) years thereafter. Upon Client’s request and on a confidential basis, Hogan shall make these records, appropriate personnel and other relevant materials available during normal business hours for inspection and audit by Client or its third-party designee, if Client: (a) gives Hogan thirty (30) days’ prior notice of any audit; (b) undertakes an audit no more than once per calendar year, except for good cause shown; and (c) conducts or causes to be conducted an audit in a manner designed to minimize disruption to Hogan’s business at Client’s sole cost and expense.

8.2.4.      During the Term, Hogan shall cause a SOC 2 Type II report (or equivalent report) to be prepared at least annually by a leading supplier of these types of reports in respect of the System.  Upon Client’s request, Hogan shall provide Client a copy of the report.

8.2.5.      Wherever applicable, Hogan shall have a vulnerability assessment of suitable scope conducted against the System at least annually.  The assessment must include both automated and manual testing techniques and must consist of testing performed while both authenticated and not authenticated to the application(s).  Upon Client’s request, Hogan shall provide to Client a written summary of the results of the most recent vulnerability assessment, sufficient in scope and content to provide a fair representation of the level of risk associated with each vulnerability identified.

8.3.  Compliance with Applicable Laws. Hogan shall comply with all statutes, ordinances, and regulations of all federal, state, county, and municipal or local governments, and of all the departments and bureaus thereof, applicable to the carrying on of its business.

8.4.  Client’s Use of Services. Client agrees to use the Services within the scope of all prior Hogan certification training and System access training provided by Hogan, with professional competence, and in a manner consistent with their intended use. Client’s use of the System and the Services for human resource and pre-employment screening implies that Client has full and current knowledge of the Equal Employment Opportunity Commission (EEOC) Uniform Guidelines on Employee Selection Procedures and employment law, or other regulations or laws governed under Client’s jurisdiction. Client also agrees that any Services Client purchases from Hogan will be used by it or under its direct supervision in a manner consistent with all human resources professional, ethical, and regulatory guidelines and standards.

9.      INDEMNIFICATION

9.1. Indemnification Obligations. Each Party (in such capacity, the “Indemnifying Party”) shall indemnify and hold harmless the other Party, its affiliates and its and their representatives (in such capacity, collectively, the “Indemnified Party”) from and against any liability, judgment, loss, damage, cost or other expense (including reasonable investigation and attorneys’ fees) of or to the Indemnified Party (each, a “Loss”) to the extent such Loss arises from or is alleged to arise from (i) a breach by the Indemnifying Party, or acts or omissions which, if true, would constitute a breach by the Indemnifying Party, of any representation, warranty, covenant or other term of these Terms of Service or any SOW or (ii) the fraud, negligence, recklessness or willful misconduct of the Indemnifying Party, its Affiliates or its or their Representatives in connection with its performance under these Terms of Service or any SOW, except, in each case, to the extent any such Loss arises from the fraud, negligence, recklessness or willful misconduct of the Indemnified Party. In addition, Client shall indemnify, defend and hold harmless Hogan, its affiliates and its and their representatives (in such capacity, collectively, the “Indemnified Party”) from and against any liability, judgment, loss, damage, cost or other expense (including reasonable investigation and attorneys’ fees) of or to the Indemnified Party (each, a “Loss”) brought in a Third Party Claim arising from or alleged to arise from Client’s unlawful, negligent or intentional misuse of the Services for purposes, including but not limited to individual or group selection and development, promotion and/or organizational development.

9.2. Intellectual Property Indemnification. If any Service and/or Deliverable hereunder becomes the subject of an Intellectual Property infringement Claim, then, in addition to its indemnification obligations set forth herein, Hogan shall, at its sole discretion, cost and expense, either (a) immediately replace or modify such Service and/or Deliverable, providing not less than the functionalities specified in the applicable SOW to make it non-infringing or cure any claimed misuse of that third party Intellectual Property right or (b) immediately procure for Client the right to continue using such Service and/or Deliverable pursuant to these Terms of Service.  Any costs and expense Client may incur in connection with implementing either of the above alternatives will be borne by Hogan. If Hogan fails to provide one of the foregoing remedies within forty-five (45) days of notice of the claim, Hogan shall refund to Client all sums paid by Client for such infringing Service and/or Deliverable.

9.3.  Indemnification Procedures. An Indemnified Party shall provide the Indemnifying Party with prompt notice of any Loss for which indemnification is being sought hereunder; provided that the failure to provide such notice promptly shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent the Indemnifying Party was actually prejudiced by such delay. The Indemnified Party shall control the defense and disposition of any Loss arising from a third-party demand, action, suit or allegation (a “Third Party Claim”). The Indemnifying Party shall cooperate with and assist in the defense and disposition of any Third Party Claim.

10.    TERM AND TERMINATION

10.1.   Term. These Terms of Service shall remain in effect during the term of a SOW referencing these Terms of Service (“Term”) unless sooner terminated as set forth in this Section 10. 

10.2. Termination for Cause. Any SOW may be terminated upon written Notice (as defined in Section 10) in the event of a breach by one party of any material obligation hereunder which is not cured within fifteen (15) calendar days of Notice of such breach having been given by the non-breaching party.

10.3. Termination of SOW(s).  Client shall have the right, in its sole discretion, to terminate the Services of Hogan under a SOW without further liability hereunder for any reason whatsoever upon ten (10) calendar days’ prior Notice to Hogan.  In such event, Client shall not be liable to Hogan for any further charges except for such work which Hogan can demonstrate was properly performed under the terminated SOW(s) prior to the date of termination subject to the provisions of Section 2. Unless otherwise expressly specified by Client, following delivery of Client’s Notice, Hogan will complete any outstanding SOW(s) not so terminated in accordance with their respective terms. 

10.4. Effect of Termination. Termination of any SOW by Client as provided for herein shall not be construed to relieve Client of any debts or monetary obligations to Hogan that shall have accrued hereunder with respect of Hogan’s completion of any SOW not cancelled under the termination provisions herein. Neither the expiration nor termination of a SOW shall affect the ownership by Client of the Deliverables and the results and proceeds of the Services rendered by Hogan pursuant to the SOW, nor will such expiration or termination alter any of the rights of the Parties.

11.      NOTICE

To be effective, any notices required or permitted to be provided by one Party to the other pursuant to these Terms of Service shall be in writing and (i) sent by email to the address provided in the SOW; (ii) sent by certified mail, postage prepaid, (iii) by hand delivery, or (iv) by Federal Express or similar courier service (“Notice(s)”). 

12.    INDEPENDENT CONTRACTOR

It is understood and agreed that in performing the Services for Client hereunder, Hogan shall act in the capacity of an independent contractor and not as an employee or agent of Client.  Nothing in these Terms of Service shall be construed as creating a joint venture, employer-employee relationship, partnership, or agency. Hogan agrees that it shall not represent itself as the agent or legal representative of Client for any purpose whatsoever.  Hogan shall be solely responsible for the remuneration of and the payment of all taxes with respect to its employees and subcontractors and any claims with respect thereto and shall be solely responsible for the withholding and payment of all federal, state, and local income taxes as well as all FICA and FUTA taxes applicable to it, its employees, and its subcontractors.  Hogan acknowledges that as an independent contractor, neither it nor any of its employees or subcontractors shall be eligible for any Client employee benefits, including, but not limited to, vacation, medical, dental, or pension benefits.

13.    LIMITED WARRANTY AND LIMITATION OF LIABILITY

13.1 Limited Warranty. Hogan represents and warrants that, for a period of ninety (90) days, the Deliverables and media on which they are provided shall be free from material defects in materials and workmanship under normal use, and that the Tools shall perform substantially in accordance with their documentation.  Upon Client’s written notice to Hogan, and within ninety (90) days from Client’s receipt of any Tools or Deliverables containing a material defect, Client may exercise its warranty right herein and Client’s exclusive remedy shall be the repair or replacement of any materially defective Tools and Deliverables.  HOGAN EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  NO WARRANTY IS GIVEN THAT THE OPERATION OF ANY SOFTWARE OR SYSTEM SHALL BE UNINTERRUPTED OR ERROR FREE. ANY MODIFICATIONS BY CLIENT TO ANY DELIVERABLES SHALL VOID CLIENT’S LIMITED WARRANTY RIGHTS EXPRESSED HEREIN.

13.2 Limitation of Liability. Except with respect to claims regarding violation OF proprietary rights, BREACH OF CONFIDENTIALITY, or damages RESULTING FROM INTENTIONAL OR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, nEITHER party shall be liable to the other for punitive, incidental, special, indirect, exemplary, multiplied or consequential damages ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE WHETHER IN CONTRACT, NEGLIGENCE, GROSS NEGLIGENCE, TORT OR ANY OTHER LEGAL THEORY.  HOGAN’S TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT OF MONEY PAID TO IT UNDER THE INITIAL TERM OF THESE TERMS OF SERVICE.

14.    ASSIGNMENT, SUBCONTRACTING AND DELEGATION

Unless specified in and agreed upon in a SOW, no right or interest in these Terms of Service shall be assigned or subcontracted by Hogan without the prior written consent of Client, and no delegation of the performance of the Services or other obligations owed by Hogan to Client shall be made without the prior written consent of Client except Client consent hereunder to Hogan utilizing Hogan certified coaches in its Hogan Coaching Network who are Hogan contractors for provision of assessment feedback, coaching, and Hogan Certification Workshop and other facilitation. Any unauthorized assignment or transfer shall be void.  Subject to the foregoing limitation on assignment, these Terms of Service shall be binding upon and inure to the benefit of the parties and their respective heirs, successors and permitted assigns.

15.  Force Majeure 

Except for payment obligations, neither Party shall be liable or deemed to be in default for any delay or failure in performance under these Terms of Service or interruption of service resulting, directly or indirectly, from any causes beyond the reasonable control of such party.  Performance times shall be considered extended for a period equivalent to the time lost because of such delay.  The Party claiming a right of force majeure hereunder shall immediately contact and notify the other Party of such event.  In the event any force majeure shall continue for a period more than three (3) months, either Party shall have the right to terminate these Terms of Service upon written notice to the other.

16.    DISPUTE RESOLUTION

If a dispute arises between the Parties relating to these Terms of Service, the Parties agree to use the following Dispute Resolution Procedure prior to either Party pursuing litigation:  The aggrieved Party shall send a written Notice to the other Party describing the dispute.  Within seven (7) calendar days after receipt of such Notice, a meeting, teleconference or videoconference, upon agreement of the Parties, shall be held between the Parties, attended by individuals with decision making authority regarding the dispute, to attempt in good faith to negotiate a resolution.  If within fifteen (15) calendar days after such meeting or meetings, the Parties have not succeeded in negotiating a resolution of the dispute, they may proceed with pursuing claims in a court of law as provided in Section 17.3. 

17. MISCELLANEOUS

17.1    Severability.  If any one or more of the provisions contained in these Terms of Service (other than provisions constituting a material consideration for a party entering into these Terms of Service) is subsequently held to be invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired; provided, however, that in such case, the parties will negotiate in good faith to replace the invalid provision with a new and legally valid provision that reflects the parties’ original intent as closely as possible.

 17.2. No Waiver. The failure of either Party to exercise any right or remedy provided for herein shall not be deemed a waiver of any right or remedy hereunder.  No waiver by any Party of any breach of any provisions hereof shall constitute a waiver unless made in writing signed by the Party. Either Party’s waiver of any breach or failure to enforce any of the terms and conditions of these Terms of Service at any time shall not in any way affect, limit or waive such Party’s right thereafter to enforce and compel strict compliance with every term and condition thereof.

17.3.  Governing Law and Jurisdiction. The rights and obligations of the parties to these Terms of Service shall be governed by and construed in accordance with, the laws of the State of Oklahoma, and the United States of America, without regard to the conflict of laws principles thereof.  Jurisdiction and venue for any claims arising hereunder may be in the district courts of Tulsa County, Oklahoma or the federal courts for the Northern District of Oklahoma located in Tulsa, Oklahoma and the Parties hereby waive personal jurisdiction in and any objections to that venue.  The Parties shall not raise in connection with, and hereby waive, any defenses based upon the venue, the inconvenience of the forum, the lack of personal jurisdiction, the sufficiency of service of process or the like in any such action or suit brought in the State of Oklahoma.

17.4. Remedies; Counsel Fees.  Except as otherwise set forth herein, the rights and remedies of the Parties set forth in these Terms of Service are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.  In the event of any legal action or similar proceeding between the Parties with respect to any of the provisions of these Terms of Service, the prevailing Party will be entitled to receive from the other Party reasonable attorney’s fees, costs and expenses incurred in connection with the action or proceeding, regardless of whether judgment is obtained.

17.5. Survival.  The provisions of these Terms of Service that by their nature and context are intended to survive the termination or expiration of these Terms of Service, including but not limited to Sections 5, 6, 9, 16, and 17.3 shall so survive.

17.6. Construction of Agreement.  Client and its counsel have had an opportunity to fully review these Terms of Service. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in interpreting these Terms of Service. The language of these Terms of Service shall be interpreted as to its fair meaning and not strictly for or against any Party. Unless the context indicates otherwise, the term “or” will be deemed to include the term “and” and the singular or plural number will be deemed to include the other.  The headings and captions used in these Terms of Service are used for convenience only and are not to be considered in construing or interpreting these Terms of Service.

17.7. Entire Agreement. Each Party acknowledges that these Terms of Service, including any Statements of Work referencing these Terms of Service, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and merges all previous proposals, negotiations, representations, commitments, writings, understandings, agreements, and all other communications, both oral and written, between the Parties and prevails over any inconsistent terms and conditions contained or referred to in any purchase order or other instrument that may at any time arise between or be given by either Party in respect of the subject matter. The acknowledgment or acceptance of a purchase order or other such instrument containing conditions at variance with those of these Terms of Service shall not be inferred as modifying these Terms of Service. The Parties are entering into these Terms of Service based solely on the representations and warranties herein and not based on any promises, representations, and/or warranties not found herein. These Terms of Service may not be amended, modified or altered except by a written instrument executed by a duly authorized representative of each of the parties.

17.8. Language.  These Terms of Service have been drafted and reviewed in the English language, which shall be regarded as the authoritative and official text for contract interpretation and for any dispute resolution process.