Effective July 2018
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, Company agrees to these Terms of Service.
In the event a separate fully executed written master level agreement exists (now or in the future) between Company and Hogan (e.g., Master Services Agreement, Master Professional Services Agreement, Consulting Services Agreement, etc.), any conflict between that agreement and these Terms of Service shall be resolved in favor of such agreement. However, to the extent such agreement does not address access to and use of HALO as described herein, these Terms of Service shall apply to such access and use.
These Terms of Service shall remain in effect during the term of any Statement of Work incorporating these Terms of Service by reference.
Whenever used in these Terms of Service, the following capitalized terms shall have the meaning set forth below:
“Assessments” shall collectively refer to Hogan’s current and any newly-created assessments of any kind, their component scales and any variations of such assessments and scales.
“Authorized Users” shall mean those persons who are authorized by Company to have access to HALO. Authorized Users must be current bona fide officers, executives, employees or staff of Company, or contractors engaged by the Company, provided such contractors have been informed of, and agree to abide by, these Terms and Conditions.
“Company” shall mean a Hogan customer that has been granted access to HALO and to the Products and by using the same has accepted and agreed to these Terms of Service.
“Confidential Information” shall mean 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 this Agreement, 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 this Agreement, 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” shall mean all services agreed to and/or performed by Hogan at Company’s request including, but not limited to, all processing, consulting, research and technology services, and shall be pursuant to a statement of work executed by Hogan and Company subject to the terms and conditions thereof and these Terms of Service.
“Deliverables” shall mean those items containing Work Product developed and delivered by Hogan to Company pursuant to a Statement of Work (“SOW”) during provision of Products and/or Custom Services and accepted by Company.
“Hogan Assessment Link Online (HALO)” – The internet-based website and testing platform (or any derivative thereof or successor thereto) available from Hogan on the World Wide Web including all Products and features offered via such platform. Certain Products under these Terms and Conditions may be delivered from other platforms. These Terms and Conditions are equally applicable to those Products.
“Hogan Intellectual Property” shall mean any and all intellectual property and other rights of Hogan of any kind or nature, 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, irrespective of whether possessed by Hogan prior to, or acquired, developed or refined by Hogan under this Agreement, excepting rights in and to the Work Product expressly vesting in COMPANY under the terms of this Agreement.
“Hogan Internet Administration System” shall mean 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 including but not limited to Hogan Assessment Link Online (“HALO”).
“Intellectual Property” shall mean all intellectual property rights throughout the world, including copyrights, patents, mask works, rights of publicity, internet domain names, trademarks, trade secrets, authors’ rights, rights of attribution, goodwill, design, rights relating to innovation, know how, moral rights, and other proprietary rights and all applications and rights to apply for registration or protection of such rights subsisting in the Tools and Materials.
“Materials” shall mean 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 Company by Hogan under this Agreement.
“Products” as used herein includes but it not limited to Assessments, Tools, Reports, and Materials as defined herein.
“Reports” shall mean 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” shall mean all Hogan products supplied to Company under this Agreement, including but not limited to the Assessments.
“Work Product” shall mean 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.
II. Statements of Work for Products and Services and Governing Agreement
Hogan agrees to provide products and services as requested by Company, which include but are not limited to Products and Custom Services as defined in these Terms of Service. Any valid SOW referencing these Terms of Service shall be governed by these Terms of Service which are incorporated by reference. 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, unless the SOW expressly provides otherwise.
Fees. As consideration for the Services to be performed by Hogan and for rights granted/assigned herein, Company agrees to pay Hogan the amounts stated and set forth on any applicable SOW executed by the parties for Products and/or Custom Services rendered to Company (“Fees”).
Expenses. Unless specifically agreed to as a separate reimbursable expense item in a SOW, the Fees shall include all sums due and owing of every kind and description including but not limited to telephone calls, travel and directly related expenses, mileage, stationery, and special services such as typing, duplicating costs and mailing/shipping expenses.
Invoicing and Payment. Unless otherwise specified in any SOW, invoices are to be submitted monthly by Hogan subject to these Terms of Service and are due and payable to Hogan within thirty (30) days of the date of invoice. If part of an invoice is disputed, Company shall pay the undisputed portion of such invoice within the payment terms set out in these Terms of Service.
Disputed Fees. If Company believes there are errors or discrepancies with respect to any amounts due Hogan pursuant to these Terms of Service, Company 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 these Terms of Service.
Delinquent Payments. Interest will 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 Company’s ordering and web access privileges in the event payments become more than sixty (60) days past due or from Company’s multiple failure to pay invoices in a timely fashion. Reinstatement of a suspended account requires Company to pay past due balances in full, pay any applicable outstanding fees, place a credit card authorization on file, and pay any applicable web access activation fees.
IV. Ownership of Work Product and Deliverables
The parties agree that all Deliverables and Work Product contained therein shall become the property of Company upon delivery thereof by Hogan, acceptance by Company, and full and complete payment by Company of all associated fees for such Deliverables and/or Work Product. Except as otherwise expressly provided in these Terms of Service or in any SOW, no rights, title or interest to any Hogan Intellectual Property is given to Company; all such rights are hereby reserved by Hogan. Hogan further reserves the right to use any data (other than personally identifiable information received from Company) supplied by Company and/or generated by Hogan in connection with the Products and/or Custom Services. If, by operation of the law of any jurisdiction, or otherwise, Company or any third party claiming by or through Company is deemed to or appears to own any property rights in any Hogan Intellectual Property (other than the Work Product expressly assigned to Company), Company hereby assigns all right, title and interest in such property rights to Hogan, and Company shall, at Hogan’s request, execute any and all documents necessary to confirm or otherwise establish Hogan’s rights therein.
The parties hereto may exchange certain Confidential Information as defined herein for the purpose of implementing the provision of Products or Custom Services. 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 provision of Products and/or Custom Services. To the extent practicable, Confidential Information protected by these Terms of Service shall be marked “Confidential.” 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. Hogan will not disclose any Confidential Information to any individual or entity not a party to a SOW between the parties. Hogan agrees to provide access to reports and information generated by Hogan that include Confidential Information only to designated Company employees. Upon Company’s request, Hogan shall deliver all items containing any Confidential Information to Company or make such other disposition thereof as Company may direct. Disclosure of Confidential Information to Hogan by Company shall not constitute any option, grant or license to Hogan under any patent or other rights now or hereinafter held by Company, its subsidiaries, or any of its affiliated companies.
VI. Web Access
Access. Subject to Company’s strict compliance with Hogan’s internet technical specifications as may be hereafter amended from time to time, Hogan shall provide Company with a non-transferable and non-exclusive access to use its internet based website and testing platform known as Hogan Assessment Link Online (“HALO”) (or any other applicable platform within the Hogan Internet Administration System) for its intended purpose of administration and management of Hogan’s assessment solutions. The granting of this access is active upon issuance by Hogan of a HALO authorized user login ID and Company’s acceptance of the terms and conditions of use in this Section, Web Access. In the event Hogan provides Company with access to HALO, Company shall be responsible, at its sole cost and expense, to comply with all requirements related to the same under this Agreement.
Termination of Access. Hogan reserves the sole right to suspend or to terminate Company’s HALO access should Company fail to meet any of its obligations under these Terms of Service or the HALO terms and conditions of use, or if, at Hogan’s sole discretion, Company is deemed to act in a manner inconsistent with the intent and/or proper use of HALO.
Authorized Users. Authorized Users are those persons who are authorized by Company to have access to HALO. Authorized Users must be current bona fide officers, executives, employees or staff of Company, or contractors engaged by Company, provided such contractors have been informed of, and agree to abide by, these terms and conditions. Company shall only assign each HALO participant user login ID to a single participant. Participant user login IDs and reports are valid for a period of twenty-four (24) months from the time of creation on HALO and then at Hogan’s sole option may be deleted or archived off HALO or upon termination of this Agreement. Company and its Authorized User(s) hereby acknowledge the entire contents of HALO and the Products and other material available through HALO are protected by copyright. All products, services, assessments, reference works, databases and content available on HALO shall be deemed included within the definition of Products under this Section.
Billing. Company agrees to accept billing for all applicable charges for Products available through HALO, including but not limited to account activation, products, materials, and report generation or associated rescore fees, at the time of order, together with any applicable taxes.
Proper Use. Company agrees to use HALO and the Products with professional competence and in a manner consistent with their intended use. Company’s use of HALO and the Products for human resource and pre-employment screening implies that Company 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 Company’s jurisdiction. Company also agrees that any Products Company purchases from Hogan will be used by it or under its direct supervision in a manner consistent with all professional, ethical, and regulatory guidelines and standards.
Unauthorized Use and Access. Company agrees to take diligent and reasonable steps to keep the Products and all Intellectual Property subsisting therein confidential and free from unauthorized access or use, and not to divulge, provide, or make the products available to a third person, unless said person is under Company’s direct professional supervision. Further, Company may not assign, convey, sublicense, or otherwise transfer these Terms of Service or any right, license, or privilege to the Products to another party. Company further agrees not to copy, duplicate, download, or otherwise disseminate the Products without the explicit written permission of Hogan. Company further agrees not to modify or alter the physical or electronic characteristics of HALO or any aspect of the HALO electronic environment, and to not be party to any attempt to dismantle, reverse engineer, or electronically intrude into HALO or the Products.
Reports in HALO; End-Beneficiary. Provided Company’s HALO account is in good standing and Company possesses a valid user login ID to access HALO, Company owns the rights to copies of previously paid for participant reports stored in HALO. In instances where Company is not the end-beneficiary of the assessment data, the end-beneficiary as determined by Hogan, may reserve the right to access and use assessment responses and specific Work Product (excluding individual participant reports) developed by Hogan and intended for exclusive use by the end-beneficiary. Unless specified otherwise by Company, the end-beneficiary shall have no access, right, title, or interest to individual participant reports previously purchased by Company and stored in HALO.
VII. Data Security and Compliance with Applicable Laws
Data Security. 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 Company’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.
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 any and all of the departments and bureaus thereof, applicable to the carrying on of its business.
Hogan’s Indemnity. Hogan shall indemnify, defend and hold harmless (“Indemnify”) Company and its shareholders, directors, affiliates, officers, employees, personnel, and representatives from and against all losses, liabilities, damages, demands, claims, suits, actions, causes of action, judgments, assessments, costs and expenses of any kind related to: (i) any third-party claim or allegation that the Products and/or Custom Services or any Hogan Intellectual Property infringes, violates or misappropriates any copyright, patent, trademark, trade secret or other proprietary right or involves libel, slander, defamation, violation of personal rights of privacy, misappropriation of ideas or rights, literary privacy or plagiarism; (ii) Hogan’s breach of the representations, warranties, agreements or obligations of Hogan under these Terms of Service; (iii) any act or omission of the assigned personnel, Hogan or Hogan’s employees, agents or contractors; or, (iv) property damage and bodily injuries (including death, no matter when death occurs) caused by or related to the negligence or willful conduct of any of the assigned personnel or of Hogan.
Company’s Indemnity. Company shall Indemnify Hogan, its shareholders, directors, affiliates, officers, employees, personnel and representatives, against any and all liability, claims, demands, damages, losses and expenses of any kind, including attorneys’ fees, (i) brought by any third party in connection with or arising out of Company’s use of the Products and/or Custom Services for purposes, including but not limited to individual or group selection and development, promotion and/or organizational development; (ii) Company’s breach of the representations, warranties, agreements or obligations of Company under these Terms of Service; (iii) any act or omission of Company, or Company’s employees, agents or contractors; or, (iv) property damage and bodily injuries (including death, no matter when death occurs) caused by or related to the negligence or willful conduct of any Company employee or of Company.
IX. Independent Contractor
It is understood and agreed that in performing the Services for CUSTOMER hereunder, Hogan shall act in the capacity of an independent contractor and not as an employee or agent of CUSTOMER. Nothing in this Agreement 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 CUSTOMER for any purpose whatsoever. Hogan shall be solely responsible for the remuneration of and the payment of any and 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 CUSTOMER employee benefits, including, but not limited to, vacation, medical, dental, or pension benefits.
X. LIMITED WARRANTY AND LIMITATION OF LIABILITY
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 CUSTOMER’s written notice to Hogan, and within ninety (90) days from Company’s receipt of any Tools or Deliverables containing a material defect, Company may exercise its warranty right herein and Company’s exclusive remedy shall be the repair or replacement of any materially defective Tools or 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 SHALL BE UNINTERRUPTED OR ERROR FREE. ANY MODIFICATIONS BY CUSTOMER TO ANY TOOLS AND DELIVERABLES SHALL VOID CUSTOMER’S LIMITED WARRANTY RIGHTS EXPRESSED HEREIN.
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 SOW RELATED TO THE ALLEGED DAMAGE.
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 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.
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.
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.
Entire Agreement. Each Party acknowledges that these Terms of Service, including any Statements of Work incorporating these Terms of Service by reference, 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 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. Notwithstanding the foregoing, these Terms of Service may be amended from time to time by Hogan.