EngageRocket Terms of Service
Last Updated: May 2017
Thank you for taking the time to read our Terms of Service. We try to keep things simple, but it’s important that you understand your rights and responsibilities.
1. SAAS SERVICES AND SUPPORT
1.1These Service Terms shall apply to EngageRocket Pte. Ltd. (hereinafter ”EngageRocket”) provision of employee feedback and analytics services to customers (hereinafter the ”Customer”) unless otherwise agreed in writing. EngageRocket and the Customer shall also each be referred to as a “Party” and jointly the “Parties”. The services shall be provided under a subscription structure pursuant to these Service Terms.
1.2Subject to the terms hereof, EngageRocket will provide Customer with reasonable technical support services in accordance with the Services and Service Capacity outlined above.
1.4As the Customer, you agree to this Agreement by signing a document that references this Terms of Service, or by giving consent upon registration of an account with EngageRocket. If you are an organization, the individual who agrees to this Agreement on your behalf must have the authority to bind you to this Agreement, and both you and such individual represent that to be the case.
2. CONTACT WITH CUSTOMER
2.1The Customer shall appoint an individual (s) to be in charge of the contact with EngageRocket. Such individual (s) shall handle all practical arrangements for which the Customer is responsible during the subscription term. If otherwise explicitly stated, the appointed individual will be the one who first registered an account on behalf of the Customer.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by EngageRocket or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
3.2Customer represents, covenants, and warrants that Customer will use the Services only in compliance with EngageRocket’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. [Customer hereby agrees to indemnify and hold harmless EngageRocket against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.] Although EngageRocket has no obligation to monitor Customer’s use of the Services, EngageRocket may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3.3Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4. EXCHANGE OF INFORMATION, PRIVACY AND CONFIDENTIALITY
4.2Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of EngageRocket includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to EngageRocket to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. Each Party shall keep secret such confidential information and shall exercise the same degree of diligence as exercised in relation to its own confidential information. Neither Party may disclose or in any other way make confidential information available to any third party without the written consent of the other Party.
4.3EngageRocket shall be entitled to file material on the services in question for the internal purpose of continued development of EngageRocket products and shall be entitled to use the Customer’s name as reference for the purposes of marketing, submission of offers, etc.
4.4EngageRocket shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing. No rights or licenses are granted except as expressly set forth herein.
5 SURVEY RESPONDENT CONFIDENTIALITY
5.1In this Agreement, Confidentiality Notice means the notice given to survey respondents at the time of answering a survey conducted by you, including the degree of confidentiality and anonymity that a survey respondent will have when answering survey questions.
6 RIGHTS IN PRODUCT AND MATERIAL
6.1All copyright and any other intellectual property rights, including any EngageRocket standard questions, Action Centre’s content, employee engagement analysis software downloaded by and installed with the Customer, in the product developed in connection with the services provided shall be accorded to EngageRocket. The Customer shall be granted only a right of use.
6.2The Customer may conclude a separate agreement with EngageRocket on extension of the permission to use the material received in return for payment of an additional charge, including the possibility to reproduce the material and use the material for marketing purposes. In case of such use, the Customer shall ensure that the fact that the material has been prepared by EngageRocket is clearly stated.
6.3If the Customer does not conclude a separate agreement with EngageRocket as specified in paragraph above, the Customer may use the material prepared by EngageRocket for internal purposes only and may not disclose, change or copy the material, upload it on the Customer’s website or social media or in any other way reproduce such material.
7. PAYMENT OF FEES
7.1The Customer subscribes to the services provided by EngageRocket for a minimum initial period of 12 months (or 24, 36 months), unless otherwise specified in this Sales Agreement, and at the same time acknowledges that the subscription has an initial pre-payment feature for service to be paid prior to the commencement of the subscription period.
7.2No part of the payment for the initial subscription will be refundable in the event of the Customer’s cancellation during the subscription period unless clearly stated in an addendum. At the end of the period, the subscription will be automatically extended for a renewed 12 months subscription unless cancelled by the Customer in writing a minimum of 30 days before the subscription end date.
7.3The payment will automatically be invoiced with the Customer charged for any additional licenses deployed. Upon expiry of the initial period, EngageRocket is, at any time and at EngageRocket’s discretion, entitled to amend the subscription rates without prior consent from the Customer. EngageRocket Pte. Ltd. shall provide the Customer with a 2 weeks’ notice before implementing such adjustment.
7.4EngageRocket shall be entitled to charge interest from the Customer if payment to EngageRocket Pte. Ltd. is past due. The rate of the interest is 14% per annum. The interest shall accrue from the due date until the actual date of the payment.
7.5In the event that Customer is delinquent in payment of any invoice beyond 30 days, EngageRocket Pte Ltd may, at its option, withhold deliverables or suspend any and all services until the account is made current.
8. POSTPONEMENT/CANCELLATION BY THE CUSTOMER
8.1In the event that the Customer cancels or postpones the subscription prior to the commencement date scheduled the full subscription fee will be due per terms stated under “Subscription term and fees”.
9. WARRANTY AND DOWNTIME
9.1EngageRocket provides no warranties whatsoever in relation to and shall not be liable for any software applied and installed with the Customer.
9.2The Customer’s use of the service is at the Customer’s sole risk. The services are provided on an "AS IS" and "AS AVAILABLE" basis. The service are provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
9.3EngageRocket, its subsidiaries, affiliates, and its licensors do not warrant that a) the services will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the services are free of viruses or other harmful components; or d) the results of using the services will meet your requirements.
9.4Notwithstanding the above, the Customer is entitled to claim compensation from EngageRocket if the services provided are unavailable (downtime), for reasons attributable to EngageRocket for more than 1% of the time of a calendar month. The compensation shall be calculated as 10% of the monthly fee payable according to “Subscription term and fees” for each 1% downtime unavailability. The compensation can, however, not exceed the monthly fee for that period. The compensation, if claimed and awarded, will be set-off against future service invoices and will not be paid in cash.
10.1In the event of a Party’s breach of the subscription or these Business Terms, the general rules of Singapore law shall apply.
10.2Any claim for damages as a result of breach by EngageRocket shall in no event exceed an amount corresponding to the fee agreed to be paid by the Customer for the initial 12 months’ subscription. EngageRocket shall not be liable for the Customer’s operating loss, loss of profits or any other indirect loss. It is specifically stated that EngageRocket shall not be liable for any late delivery or erroneous analysis or report etc. due to facts attributable to the Customer and/or its employees.
10.3 In the event that the breach by a Party is due to factors beyond the control of such Party (force majeure), the Party shall not be liable for such breach.
11 GOVERNING LAW
11.1Any dispute between EngageRocket and the Customer arising out of or in connection with the subscription or these Business Terms shall be subject to Singapore law.
11.2This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the Republic of Singapore, without regard to the principles of conflicts of law and, unless otherwise elected by EngageRocket in a particular instance, the Customer hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts located within the Republic of Singapore for the purpose of resolving any dispute relating to the Customer’s access to or use of the Service. The Customer agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
12.1EngageRocket shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any patent or any copyright or misappropriation of any trade secret, provided EngageRocket is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; EngageRocket will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by EngageRocket, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by EngageRocket, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by EngageRocket to be infringing, EngageRocket may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
13 LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, ENGAGEROCKET AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ENGAGEROCKET’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO ENGAGEROCKET FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ENGAGEROCKET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with EngageRocket’s prior written consent. EngageRocket may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind EngageRocket in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the Republic of Singapore without regard to its conflict of laws provisions.