These Terms and Conditions (the “Agreement”) govern the provision of information services by Kingsley Associates (“Kingsley”) to Kingsley’s client (each, a “Client”).
Background Information
A. Kingsley provides proprietary research, data analysis and strategic consulting solutions and associated information services to its clients. Kingsley’s principal information services are various types of surveys that use Kingsley’s proprietary survey methodologies, technologies and delivery mechanisms, including access to The Kingsley Index™.
B. This Agreement sets forth the terms and conditions that will govern Kingsley’s provision of certain information services to Client covered in Client Service Orders.
In consideration of the rights and benefits that they will each receive under this Agreement, Kingsley and Client (collectively, the “Parties” and individually a “Party”) agree as follows:
1. KINGSLEY SERVICES.
1.1 Provision of Services to Client. Client hereby engages Kingsley to provide Client with the information services set forth on Client Service Orders executed by the Parties during the term of this Agreement (the “Services”) and Kingsley hereby agrees to provide Client with the Services. When and as Kingsley agrees to provide Client with additional Services during the term of this Agreement, the Parties will execute an addendum to the applicable Client Service Order(s) or create a new Client Service Order that describes the Services to be provided. The Client Service Orders are incorporated by this reference into this Agreement.
1.2 General Limitations on Use of Services. Except as otherwise approved by Kingsley in writing in advance, Client may use the Services solely for Client’s internal business purposes and in accordance with any guidelines provided by Kingsley. Client may not: (a) sell, resell, license, sublicense, or lease the Services to any third party; (b) give third parties access to the Services except as Kingsley may approve in advance; (c) use the Services to provide services to or for any third party; (d) use the Services to develop solutions that compete with the Services; or (e) use or attempt to use the Services for any purposes that are contrary to applicable laws and regulations. Client will ensure that only authorized employees are able to access the Services.
2. TERM OF AGREEMENT.
2.1 Term of Agreement. The term of this Agreement shall start as of the Agreement Effective Date and shall continue until all Client Service Orders have expired. Section 8 describes certain situations where a Party may terminate the Agreement early.
3. PAYMENTS, EXPENSES.
3.1 Fees, Charges and Expenses. Client will be responsible for all fees, charges, costs and expenses and other financial obligations described in each Client Service Order (“Fees”). The Client Service Orders set out the payment terms applicable to Fees. All Fees must be paid in U.S. dollars. Failure of Client to meet its payment obligations in a timely and complete manner shall constitute a material breach of this Agreement.
3.2 Taxes. The Fees shall be paid by Client free and clear of any deduction or withholding on account of taxes. Client shall be responsible for all sales, use, value-added, ad valorem, export or import or other taxes (including fees, tariffs, levies, duties or charges in the nature of a tax) imposed by any governmental entity upon the sale, use or receipt of the Services (other than taxes based solely on Kingsley’s income). If and when Kingsley has the legal obligation to collect such taxes, Kingsley will invoice Client the amount of such taxes, and Client will pay such amount unless Client provides Kingsley with a valid tax exemption certificate authorized by the appropriate taxing authority. Client will provide Kingsley with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Kingsley to establish that such taxes have been paid. The Parties shall reasonably cooperate to more accurately determine each party’s tax liability and to minimize such liability to the extent legally permissible.
4. PROPRIETARY RIGHTS.
4.1 Rights of Parties. As between Client and Kingsley, all right, title and interest, and all Intellectual Property, in and to the Services, including all survey methodologies and technologies (for example, The Kingsley Index™), belong solely to and are owned solely by Kingsley. Client will own its individual tangible or electronic survey results, subject to Kingsley’s rights in Section 5.4. All rights, including modifications and customizations to the Services, that arise out of suggestions from Client shall be owned by Kingsley. Client agrees that it will not adopt, use or register any acronym, trademark, trade name or other marketing or brand name of Kingsley or any confusingly similar word or symbol as part of its own name or as part of the name of any products that it markets. As used in this Agreement, “Intellectual Property” means trademarks, trademark applications, tradenames, logos, copyrights, patents, patent applications, trade secrets and other proprietary rights.
5. CONFIDENTIALITY; DATA RIGHTS.
5.1 Non-Disclosure; Non-Use. Client agrees not to disclose, communicate, publish, disseminate, or make accessible, in any manner, Kingsley’s Confidential Information to any person or entity except in accordance with this Agreement and applicable law. Client will take reasonably diligent measures to protect the confidentiality of, and avoid the unauthorized disclosure or use of, Kingsley’s Confidential Information. This obligation continues indefinitely, unless applicable law requires a shorter duration, in which case these obligations continue through the date that is five (5) years after the termination of this Agreement. “Confidential Information” is any information that Kingsley designates or marks as confidential as well as any information that under the circumstances Client should reasonably assume to be confidential.
5.2 Return or Destruction of Confidential Information. Upon termination of this Agreement or sooner if requested, Client will: (i) discontinue all use of Kingsley’s Confidential Information; (ii) return to Kingsley all manifestations (e.g. documents, files) of Kingsley’s Confidential Information; (iii) erase or destroy any Confidential Information of Kingsley contained in computer memory or data storage apparatuses; and (iv) remove Confidential Information of Kingsley from any software that incorporates or uses such Confidential Information in whole or in part.
5.3 Compelled Disclosures. If Client is required (by oral questions, interrogatories, requests for information or documents in a court or administrative proceeding, subpoena, civil investigative demand or other similar process) to disclose any of Kingsley’s Confidential Information, Client will provide the Kingsley with prompt notice of the request or requirement so that Kingsley may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement.
5.4 Data Rights and Obligations. In order for Kingsley to provide its Services to Client, Client may need to provide Kingsley with Personal Data (as defined below) of survey respondents (e.g. name, email address, mailing address). Client agrees that Kingsley may use this Personal Data to generate benchmarks, provided that any survey response data used in the benchmarks shall be aggregated and shall not contain personally identifiable information. Kingsley may retain this Personal Data for as long as necessary for Kingsley to be able to fulfill the purposes outlined in the project scope, subject to the requirements of applicable law. Client is responsible for obtaining any legally required consents from data subjects to disclose their Personal Data to Kingsley. Client shall not provide Kingsley with any Personal Data that is not needed by Kingsley to provide the Services. The Parties agree to comply with all requirements of applicable data privacy laws and regulations. Kingsley is certified under the EU-US Privacy Shield. Kingsley’s Privacy Policy can be found at https://kingsleyassociates.com/website-privacy-policy/. “Personal Data” is information relating to an identified or identifiable natural person. An identifiable natural person is a natural person who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
6. LEGAL COMPLIANCE OBLIGATIONS.
6.1 Compliance with Applicable Law. In performing their obligations and exercising their rights under this Agreement, the Parties will comply with applicable laws and regulations.
6.2 Data Breaches. Except for an actual or suspected unauthorized acquisition, use, alteration, disclosure, compromise or loss of any Personal Data (a “Data Breach”) that results directly from the gross negligence or intentional wrongdoing of Kingsley, Kingsley has no responsibility for, and Client releases Kingsley from, all liability for, any Data Breach that is associated with or that is in connection with Kingsley’s use of Personal Data in a manner permitted by this Agreement or Client’s use of the Services where Kingsley has no direct control.
7. PERFORMANCE STANDARDS AND OTHER RESPONSIBILITIES.
7.1 Limited Warranty. Kingsley warrants that it will provide the Services in a professional manner and in full compliance with the terms of this Agreement. Client’s sole remedy for any breach of the warranty in this Section is for Kingsley to re-provide any Services. This warranty shall not apply if the warranty breach was caused by or attributable to Client’s breach of this Agreement or Client’s use of the Services in an unreasonable or unauthorized manner.
7.2 Client Responsibilities. Client will perform the tasks and provide the information, data, assistance and support reasonably necessary for Kingsley to provide the Services and Client’s failure to do so could lead, in Kingsley’s sole discretion, to an increase in Fees applicable to Client or to Kingsley terminating this Agreement or any Client Service Order for material breach by Client.
7.3 Disclaimer of Certain Warranties. Client assumes all responsibility and risk for using the Services. Except as set forth in this Agreement, the Services are provided “as is.” Kingsley disclaims any warranty that the Services will be fit for a particular purpose or that they will be merchantable or that the Services will meet Client’s requirements, other than those expressly agreed to by Kingsley in this Agreement.
7.4 Force Majeure. Kingsley will not be liable for any loss or delay resulting from any event that is beyond the reasonable control of Kingsley including acts of God, fire, flood, epidemic, pandemic or quarantine restrictions, catastrophic weather events, other natural disasters, terrorism, war or military hostilities, loss of internet, broadband or Wi-Fi connectivity or services, unexpected scarcity or unavailability of parts or components, inability of carriers to make scheduled deliveries, labor stoppage, strikes, riots, or civil commotion, freight or other embargoes.
7.5 Entire Agreement. This Agreement and the Client Service Orders constitute the entire agreement between the Parties concerning the subject matter hereof and supersede all written or oral prior agreements or understandings. All Client Service Orders are incorporated into this Agreement as if set forth herein in full. In the event of any conflicts between the terms of this Agreement and the terms of any Client Service Order, the terms of this Agreement shall control unless expressly stated otherwise.
8. EARLY TERMINATION.
8.1 Termination for Cause. Either Party may terminate this Agreement for cause if the other Party materially breaches this Agreement and fails to cure or remedy the breach within 30 days of receiving written notice of the breach from the non-breaching Party. Neither Party shall have the opportunity to cure a breach of this Agreement if the other Party reasonably concludes that the breach, by its nature, cannot be cured (e.g. a wrongful disclosure of Confidential Information). If the Agreement is terminated for cause, any Client Service Order in effect will also terminate.
8.2 Obligations of Client on Termination. Upon any termination of this Agreement, Client will remit to Kingsley all unpaid Fees and expenses through the date of termination for each Client Service Order. If Client terminates early other than for cause as described in Section 8.1, Client may be required to pay an additional fee to cover the actual cost of the work completed up to the point of termination, if invoiced fees do not already cover the cost, and to reimburse Kingsley for any expenses already incurred by Kingsley in connection with Services already requested by Client. In addition, upon the conclusion of any Service, Client shall promptly remit all Fees invoiced by Kingsley with respect to such Services pursuant to terms in each Client Service Order. Should Client select a multi-year engagement and not fulfill the entire term as described in each Client Service Order, Client will be responsible for paying any discounts to Kingsley.
8.3 Data Access Upon Termination. Upon any termination of this agreement, Kingsley will discontinue Client’s access to data, including but not limited to, the Kingsley Portal, two weeks post the date of termination. If requested by Client, Kingsley will provide an export of all data relevant to Client engagement.
9. INDEMNIFICATION, LIMITATION OF LIABILITY.
9.1 Indemnification. Client will defend, indemnify and hold harmless Kingsley, its affiliates and their respective officers, directors, managers, employees, contractors, agents and representatives (“Indemnified Parties”) against all third party claims, allegations, actions, suits, loss, damages, and costs, including attorneys’ fees (“Losses”), arising out of or relating to the Client’s material breach of this Agreement. In addition, Client will defend, indemnify and hold harmless Kingsley, its affiliates and their respective officers, directors, managers, employees, contractors, agents and representatives against all Losses arising out of or relating to any Personal Data provided by Client to Kingsley in connection with the Information Services. If any settlement requires an affirmative obligation of, results in any ongoing liability to, or prejudices or detrimentally impacts Kingsley in any way, then such a settlement will require Kingsley’s prior written consent (not to be unreasonably withheld or delayed), and Kingsley may, at its cost and expense, have its own counsel in attendance at all proceedings and substantive negotiations relating to such claim.
9.2 Limitation of Liability. Neither Party shall be liable for any loss of business, potential business, revenues or profits, or for any consequential, incidental, punitive or similar damages for any cause whatsoever, regardless of the form of action, whether in contract or in tort, including negligence, even if the Party has been advised of the possibility of these types of damages. In no event will Kingsley’s aggregate liability under this Agreement exceed the amount actually paid to Kingsley by Client under this Agreement during the 12 months immediately preceding the date on which the claim or liability or Loss accrued. The limitations of liability in this Section 9.2 shall not apply to a Party’s indemnification obligations or a Party’s breach of its confidentiality obligations.
10. GOVERNING LAW AND VENUE.
10.1 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. Any action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement may only be brought in the Superior Court of Fulton County, Georgia or in the United States District Court for the Northern District of Georgia.
10.2 Attorney Fees and Remedies. The prevailing Party in any legal action arising in connection with this Agreement will be entitled to recover its reasonable attorney fees (including, if applicable, charges for in-house counsel), court costs and other legal expenses from the other Party. Except as is otherwise expressly provided in this Agreement, the Parties’ remedies either under this Agreement or applicable law are cumulative.
11. GENERAL.
11.1 Miscellaneous Provisions. Client may not assign or attempt to assign any of its rights or delegate any of its duties under this Agreement without Kingsley’s prior written consent. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties’ successors and assigns. The relationship between the Parties created by this Agreement is that of independent contractor and not partners, joint ventures, agents or employees. There are no third party beneficiaries under or in connection with this Agreement. This Agreement may be executed simultaneously in multiple counterparts. This Agreement, together with all Client Service Orders between Parties, is the exclusive and entire agreement between the Parties with respect to its subject matters and supersedes all prior or contemporaneous agreements, negotiations, representations and proposals, written, oral, electronic or web-based relating to its subject matter. Any inconsistency between this Agreement and any Client Service Order shall be resolved in favor of this Agreement unless in the Client Service Order the Parties expressly state that they intend to modify a term of this Agreement. No modification or waiver of any breach of this Agreement will be effective unless in writing and signed by an authorized Representative of the Party against whom enforcement is sought. No waiver of any breach of this Agreement and no course of dealing between the Parties will be construed as a waiver of any subsequent breach of this Agreement. All notices pursuant to this Agreement, will be deemed sufficiently given in writing if personally delivered or mailed by certified or first class mail or a nationally recognized courier to a Party at its address set forth on the cover page to this Agreement, or at such other address as a Party may from time to time specify by written notice to the other Party. Emailed notices are also sufficient to meet the notice requirement, provided that the recipient in fact receives the emailed notice. The provisions of this Agreement are severable. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will in no way be affected or impaired thereby. The Parties will execute and deliver such other instruments and documents, and take such other actions, as either Party reasonably requests to evidence or effect the transactions contemplated by this Agreement. All provisions of this Agreement that by their nature or terms should continue in effect after termination or expiration of this Agreement shall survive termination or expiration. Each Party represents and warrants to the other Party that it has the corporate authority to enter into and perform its obligations under this Agreement and that the person signing this Agreement on its behalf has the authority to do so.
Effective as of November 1, 2018
