Insight222, LLC - US Terms of Business
The following definitions and rules of interpretation apply in these Conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in the United States. Fees: the Subscription Fees and any Professional Services Fees.
Subscription Fees: the annual fees payable by the Customer for each Participant to participate in the Program in accordance with clause 7 (Fees and payment).
Commencement Date: has the meaning given in clause 2.1.
Conditions: these terms and conditions as amended from time to time in accordance with clause 13.5.
Contract: the relevant Agreement between Insight222 and the Customer for the supply of Services in accordance with these Conditions.
Customer: the entity who purchases Services from Insight222 as set out in the Contract. Customer Default: has the meaning set out in clause 6.2.
Deliverables: the deliverables to be produced by Insight222 for the Customer when performing the Professional Services, as set out in the Contract.
GDPR: General Data Protection Regulation ((EU) 2016/679).
Insight222: Insight222, LLC is a California-based corporation headquartered at 1840 41st Ave., Ste. 205, Capitola, CA 95010.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Customer's order for Services as set out in Insight222’s standard order form which references and incorporates these Conditions.
Participant: a director or employee of the Customer approved in writing by Insight222 to participate in the Program. Program: Insight222’s The People Analytics Program, the current details of which can be found at https://www.insight222.com/the-people-analytics-program/.
Program Activities: the meetings and events organized by Insight222 for Participants to attend as part of the Program.
Program Materials: any materials and documents made available by Insight222 to Participants in relation to the Program.
Professional Services: any ad hoc professional services provided by Insight222 specifically for the Customer in relation to the Program pursuant to a Contract which may include, without limitation, the development of diagnostic tools, research, advisory support and/or consulting services.
Professional Services Fees: the fees payable by the Customer for the supply of the Professional Services in accordance with clause 7 (Fees and payment).
Services: the Subscription(s) and the Professional Services (if any).
Specification: the description of the Professional Services to be provided by Insight222 to the Customer as set out in the Contract.
Subscription: a subscription for a Participant to participate in the Program Activities and receive access to the Program Materials.
Subscription Fees: the fees payable by the Customer for each Subscription in accordance with clause 7 (Fees and payment).
1.2 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutoryprovision.
1.3 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.4 A reference to writing or written includes fax and email.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions. The Order shall only be deemed to be accepted when it is countersigned by Insight222. The Contract shall come into existence on the commencement date stated in Order, or where no such date is so stated, on the date when it is countersigned by Insight222 (Commencement Date).
2.2 Any samples, drawings, descriptive matter or advertising issued by Insight222, and any descriptions or illustrations contained in Insight222's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.4 Any quotation given by Insight222 shall not constitute an offer capable of forming a binding agreement if accepted by the Customer, and is only valid for a period of 20 Business Days from its date of issue.
3. Program Activities and Materials
3.1 Subject to the Customer paying the applicable Subscription Fees, Insight222 will make the Program Activities and Program Materials available to each Participant.
3.2 The dates, venues and times of the Program Activities will be displayed on Insight222’s website.
3.3 Insight222 reserves the right to make changes to the Program at its discretion, however it will endeavor to give as much notice as practicable to Participants of any changes to Program Activities.
3.4 If a Participant is unable to attend any of the Program Activities for any reason, the Customer shall not be entitled to any refund of the Subscription Fees.
3.5 The Customer shall give Insight222 as much notice as is reasonably practicable if any Participant is due to leave the employment of the Customer or will cease to be a director of the Customer.
3.6 If the Customer wishes to replace any Participant for any reason it shall provide written details of the proposed replacement to Insight222.
3.7 Insight222 reserves the right at its discretion to suspend a Participant’s access to the Program at any time, for example due to inappropriate behavior, on giving written notice to the Customer, such notice shall include Insight222’s reasons for the suspension.
4. Professional Services
4.1 Subject to the Customer paying the applicable Professional Services Fees, Insight222 shall supply the Professional Services to the Customer in accordance with the Specification in all material respects.
4.2 Insight222 shall use reasonable endeavors to meet any performance dates for the Professional Services specified in the Contract, but any such dates shall be estimates only and time shall not be of the essence for performance of the Professional Services.
4.3 Insight222 reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and Insight222 shall notify the Customer in any such event.
4.4 The performance of the Professional Services is contingent on the Customer:
(a) promptly responding to questions, making decisions and providing information and approvals as necessary for Insight222 to be able to provide the Professional Services;
(b) ensuring that appropriate representatives are reasonably available as required for consultation and guidance with respect to the supply of the Professional Services including, without limitation, making relevant personnel available to discuss any Deliverables; and
(c) allowing Insight222 such access to its facilities, equipment and data as is reasonably required to provide the Professional Services; and
(d) complying with any additional obligations set out in the Contract.
5. Insight222 Warranty
5.1 Insight222 warrants to the Customer that the Services will be provided using reasonable care and skill. The Customer will give Insight222 a reasonable time period to correct any deficiency in the Services before exercising any of its other rights or remedies.
6. Customer's Obligations
6.1 The Customer shall:
(a) co-operate with Insight222 in all matters relating to the Services;
(b) provide Insight222 with such information and materials as Insight222 may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
(c) obtain and maintain all necessary licenses, permissions and consents which may be required for the services before the date on which the Services are to start;
(d) comply with all applicable laws;
(e) comply with any additional obligations as set out in the Contract.
6.2 If Insight222's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
(a) without limiting or affecting any other right or remedy available to it, Insight222 shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays Insight222's performance of any of its obligations;
(b) Insight222 shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Insight222's failure or delay to perform any of its obligations as set out in this clause 6.2; and
(c) the Customer shall reimburse Insight222 on written demand for any costs or losses sustained or incurred by Insight222 arising directly or indirectly from the Customer Default.
7. Fees and Payment
7.1 Insight222 reserves the right to increase the Subscription Fees on an annual basis with effect from each anniversary of the Commencement Date on giving the Customer not less than 60 days’ prior written notice of the increase.
7.2 Unless stated otherwise in the Contract, the Professional Services Fees shall be calculated on a time and materials basis on the following basis:
(a) the Professional Services Fees shall be calculated in accordance with Insight222's daily fee rates, as set out in its current price list at the date of the Contract;
(b) Insight222's daily fee rates for each individual are calculated on the basis of an eight-hour day from 8:30am to 5:30pm worked on Business Days;
(c) Insight222 shall be entitled to charge an overtime rate of 125% of the daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Professional Services outside the hours referred to in clause 7.2(b); and
7.3 Insight222 shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom Insight222 engages in connection with the Professional Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by Insight222 for the performance of the Professional Services, and for the cost of any materials.
7.4 Unless stated otherwise in the Contract, Insight222 shall invoice the Customer:
(a) the Subscription Fees annually in advance;
(b) the Professional Services Fees monthly in arrears.
7.5 The Customer shall pay each invoice submitted by Insight222:
(a) within 30 days of the receipt date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by Insight222, and time for payment shall be of the essence of the Contract.
7.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of state and local taxes.
7.7 If the Customer fails to make a payment due to Insight222 under the Contract by the due date, then, without limiting Insight222's remedies under clause11, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at 4% a year above the Federal Reserve's base rate, but at 4% a year for any period when that base rate is below 0%.
7.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. Intellectual Property Rights
8.1 All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by Insight222.
8.2 Insight222 grants to the Customer, or shall procure the direct grant to the Customer of, a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable license to copy the Program Materials and Deliverables (excluding materials provided by the Customer) for the purpose of receiving and using the Services, the Program Materials and the Deliverables in its business.
8.3 The Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 8.2.
8.4 The Customer grants Insight222 a fully paid-up, non-exclusive, royalty-free, transferable, perpetual and irrevocable license to copy and modify any materials provided by the Customer to Insight222 for its internal business purposes and the purpose of providing the Services to the Customer and the right to sublicense the use of such materials to its other customers.
8.5 Subject to the Customer’s prior written consent, Insight222 may publish the Customer’s name and logo regarding any Services it has provided the Customer and any Customer endorsements of Insight222’s Services in its marketing materials in any media. This right shall survive termination or expiry of the Contract for anyreason.
9. Data Protection and Data Processing
9.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
9.2 The Customer warrants that it will not provide Insight222 with any Personal Data (as defined in the Data Protection Legislation) other than business contact information required for Insight222 to provide the Services and contact details of Participants, unless Insight222 has expressly agreed to process such Personal Data under a Contract. In relation to any business contact information and contact details of Participants provided by the Customer to Insight222, the parties acknowledge and agree that for the purposes of the Data Protection Legislation, they are joint Data Controllers (where Data Controller has the meaning as defined in the Data Protection Legislation).
9.3 Without prejudice to the generality of clause 9.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any Personal Data to Insight222 for the duration and purposes of the Contract.
9.4 Without prejudice to the generality of clause 9.1, where Insight222 has expressly agreed to act as a Data Processor of any Personal Data provided to it by the Customer in accordance with clause 9.2 (where Data Processor has the meaning as defined in the Data Protection Legislation), Insight222 shall, in connection with the performance of its obligations under the Contract:
(a) process that Personal Data only on the written instructions of the Customer unless Insight222 is required by the laws of any member of the European Union or by the laws of the European Union applicable to Insight222 to process Personal Data (Applicable Data Processing Laws). Where Insight222 is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, Insight222 shall promptly notify the Customer of this before performing the processing required by the Applicable Data Processing Laws unless those Applicable Data Processing Laws prohibit Insight222 from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organizational measures, reviewed and approved by the Customer, to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymizing and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organizational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(d) not transfer any Personal Data outside of the European Economic Area unless Insight222 complies with its obligations under the Data Protection Legislation and one of the following conditions arefulfilled:
(i) the European Commission has decided that the third country (or sector or territory in the third country) or international organization to which the Personal Data is to be transferred ensures an adequate level of protection; or
(ii) the Customer or Insight222 has provided appropriate safeguards in relation to the transfer and the Data Subject (as defined in the Data Protection Legislation) has enforceable rights and effective legal remedies; or
(iii) the transfer is covered by one of the derogations set out in Article 49 of the GDPR.
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Data Processing Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 9.
9.5 The Customer consents to Insight222 appointing third-party processors to process Personal Data under the Contract. Insight222 confirms that it has entered or (as the case may be) will enter with each third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 9. As between the Customer and Insight222, Insight222 shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 9. Insight222 shall provide the Customer with details of any proposed change in any relevant third-party processors at least ten (10) days prior to any such change.
10. Limitation of liability
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
10.1 Nothing in the Contract shall limit or exclude Insight222's liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, Insight222 shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; or
(g) any indirect or consequential loss.
10.3 Subject to clause 10.1, Insight222's total liability to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to 100% of the total Subscription Fees and Professional Services Fees paid under the Contract.
10.4 This clause 10 shall survive termination of the Contract.
11. Term and Termination
11.1 The Contract shall commence on the Commencement Date and, unless stated otherwise in the Contract, shall continue indefinitely unless terminated by either party in accordance with this clause 11.
11.2 Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party not less than six months’ written notice.
11.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 28 days of that party being notified in writing to do so;
(b) the other party enters into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), is wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), has a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(c) the other party suspends or ceases to carry on all or a substantial part of its business.
11.4 Without affecting any other right or remedy available to it, Insight222 may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
11.5 Without affecting any other right or remedy available to it, Insight222 may suspend the supply of Services under the Contract or any other contract between the Customer and Insight222 if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 11.3(b) or 11.3(c), or Insight222 reasonably believes that the Customer is about to become subject to any of them.
12. Consequences of termination
12.1 Where Insight222 terminates any Subscription for convenience pursuant to clause 11.2 it shall repay the Customer a pro rata portion of any Subscription Fees paid in advance for the period following the date oftermination.
12.2 Where the Customer terminates any Subscription for convenience pursuant to clause 11.211.1 it shall not be entitled to any refund of Subscription Fees paid in advance for the period following the date of termination.
12.3 On termination of the Contract the Customer shall immediately pay to Insight222 all of Insight222's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, Insight222 shall submit an invoice, which shall be payable by the Customer immediately on receipt.
12.4 On termination or expiry of the Contract each party shall return or destroy (to the extent reasonably practicable) all copies of the other party’s confidential information in its possession or control and which it does not need in relation to the performance of any other Contract which is still in force.
12.5 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
12.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
13.1 Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control.
13.2 Assignment and other dealings.
(a) Insight222 may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in
any other manner with any or all of its rights and obligations under the Contract.
(b) The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Insight222.
(a) Each party undertakes that it shall not at any time disclose to any person any confidentialinformation
concerning the business, affairs, customers, clients or suppliers of the other party, which in the case of the Customer includes any confidential information concerning any other participants in the Program, except as permitted by clause 13.3(b).
(b) Each party may disclose the other party's confidential information:
(i) to its employees, officers, representatives, subcontractors or advisers who need to know such information for the purposes of carrying out the party's obligations under the Contract. Each party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other party's confidential information comply with this clause 13.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party's confidential information for any purpose other than to perform its obligations under the Contract.
13.4 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
(c) Nothing in this clause shall limit or exclude any liability for fraud.
13.5 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
13.6 Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
13.7 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) Any notice or other com
ply to the service of any proceedings or other documents in any legal action or, where applicable, any other method of dispute resolution.
13.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with the laws of the State of California.
13.10 Jurisdiction.EachpartyirrevocablyagreesthatthelawsandcourtsoftheStateofCaliforniashallhaveexclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
END OF DOCUMENT