These General Terms and Conditions (“Terms”) govern the services to be provided by FP to Customer pursuant to the MOU and any one or more mutually agreed upon order forms or statements of work incorporating these Terms by Reference (each an “Order”). These Terms, any Order, and the MOU are collectively referred to as the “Agreement”. In the event of a conflict between these Terms and the terms of any Order, these Terms will control unless the conflicting term of the Order expressly states otherwise. From time to time in these Terms, Customer and FP shall be referred to collectively as the “Parties” and each individually as a “Party”.
Grant of Rights. Certain services obtained by Customer from FP under the MOU or Order will require access to FP’s online platform (“Online Platform”), such as allowing users to complete career assessments. As required for the services under the MOU or Order, FP hereby grants to Customer a non-exclusive, terminable, non-transferable right to access and use the Online Platform pursuant to the Agreement. Customer shall not use or otherwise access the Online Platform in a manner that exceeds Customer’s authorized use as set forth in the Agreement. The Online Platform together with the FP services outlined in the MOU are herein referred to as the “Services”.
Customer’s Obligations. Customer will provide commercially reasonable cooperation with FP to enable FP to provide the Services to Customer. FP shall authorize access to and assign unique passwords and user names to Customer’s Authorized Users (defined below) of the Online Platform (“Customer Accounts”). Customer shall be responsible for any activity occurring through the Customer Accounts, including unauthorized activity. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Online Platform and shall promptly notify FP in the event of any unauthorized access or use of the Online Platform and any loss or theft or unauthorized use of any of the Customer Accounts. Customer shall comply with all applicable local, state, federal, and foreign laws, treaties, and regulations applicable to Customer’s use of the Online Platform, including without limitation those related to privacy, electronic communications, and anti-spam legislation. “Authorized User” means Customer’s employees, consultants, contractors, agents, students, and student family members (i) who are authorized by Customer to access and use the Online Platform under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Online Platform has been purchased hereunder.
Restrictions. Customer shall not use the Services beyond the scope of the rights granted in the Agreement. Customer shall be solely liable for its Authorized Users’ access to the Online Platform and any misuse of the Online Platform by such Authorized Users. Customer shall not (1) directly or indirectly alter, modify, adapt, translate, copy, distribute, reverse engineer, decompile, disassemble, or create any derivative works of the Online Platform, (2) rent, lease, lend, sell, license, sublicense, publish, adapt, or otherwise make available the Online Platform, (3) remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in the Online Platform, or (4) use the Online Platform in any unauthorized manner. Customer shall be responsible for obtaining and purchasing all equipment, Internet access services, modifying its network, and doing all other things necessary in order to use the Online Platform.
Suspension of Services. Notwithstanding any of the foregoing, FP may, at its sole discretion, temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) FP reasonably determines that (A) there is a threat or attack on any of FP’s intellectual property; (B) Customer’s or any Authorized User’s use of FP’s intellectual property disrupts or poses a security risk to FP’s intellectual property or to any other customer or vendor of FP; or (C) FP’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (ii) FP reasonably concludes that Customer’s or any Authorized User’s use of the Services is causing immediate, material, and ongoing harm to FP, its employees, or others. FP shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service suspension is cured. FP will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service suspension.
Non-Solicitation. Each Party agrees that during the term of the MOU and for a period of one year thereafter, it shall not directly or indirectly knowingly solicit for hire or attempt to solicit for hire any employee of the other Party or in any way interfere with the relationship between the Party and any of its employees. Notwithstanding the foregoing, the Parties or their affiliates may hire a former employee after one (1) year after such person or entities’ termination with the Party, or such longer time period contained in any agreement between such person or entity and the Party. This restriction shall not prohibit either Party or its affiliates from employing any person who has (i) responded to a bona fide recruitment advertisement not specifically targeted at such person; (ii) made an unsolicited approach to the Party or its affiliates; or (iii) been subject to a non-targeted search placed by the Party, its affiliates or on the Party’s or its affiliates’ behalf.
Privacy and Information Security; Data Privacy Addendum. FP shall maintain appropriate administrative, technical, and physical safeguards to protect Customer Confidential Information (defined below), including personally identifiable information of data subjects as required by applicable data protection laws. This Agreement hereby fully incorporates the Data Privacy Addendum (“DPA”). Additionally, Customer acknowledges and agrees that Authorized Users’ use of the Services will be subject to Future Plans Platform Privacy Policy and Terms of Use.
Subcontractors. FP may engage subcontractors to perform any portion of the Services under this Agreement; however, FP shall remain responsible for the performance of all Services, whether performed directly or through subcontractors. FP will ensure that all subcontractors comply with the applicable terms and conditions of this Agreement.
Intellectual Property Rights. “Intellectual Property” means all (a) patents, patent disclosures, and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how, and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world. Customer acknowledges and agrees that FP retains sole and exclusive ownership of all right, title, and interest in and to: (i) FP’s Intellectual Property; and (ii) the Services (including the Online Platform and any pre-existing software, know-how, methodologies, and data), including any modification, improvement, enhancement, or configuration made to the Services, regardless of who creates, suggests, and/or contributes in any such modification, improvement, enhancement, or configuration.
Customer Content. Customer acknowledges that Customer’s use of the Services may require the processing and transmission of Customer Content to FP. Customer shall own all title, Intellectual Property and contractual rights in and to sharing the Customer Content with FP. Notwithstanding the foregoing, when Customer or its Authorized Users uploads, submits, or stores Customer Content through the Services, Customer grants FP a worldwide license to use, host, store, reproduce, and modify from the Customer Content to provide, support, and improve the Services. Without limiting Customer’s rights and remedies under the Agreement, Customer acknowledges that Customer Content and information regarding Customer Accounts will be processed by FP and stored and processed using online hosting services selected by FP. Customer represents and warrants that it has all necessary rights in, and obtained all necessary consents to, the Customer Content to grant FP the rights granted under this Section. Notwithstanding anything to the contrary in the Agreement, Customer authorizes and agrees that FP may collect or create Aggregated Data and that Aggregated Data shall be the property of FP. “Customer Content” means any reports, information, files, documents, data or other content that Customer or its Authorized Users share with FP through the Services. Customer Content does not include data derived from Customer Content and held as Aggregated Data. “Aggregated Data” means the de-identified and anonymized cluster of Customer Content or other data from the Services, including De-Identified Data as defined in the DPA. For purposes of clarity, Aggregated Data will not contain data attributable to Customer or its Authorized Users.
Confidentiality. From time to time during the term of the MOU, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section only, “Receiving Party’s Group” shall mean the Receiving Party’s employees, officers, directors, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
Warranties. Each Party represents, warrants and covenants that it has the full corporate right, power and authority to enter into the Agreement, and the execution of the Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND FP DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. FP SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, FP MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES AND/OR PROFESSIONAL SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET ALL OF CUSTOMER’S OR ANY OTHER PERSON’S PURPOSES OR NEEDS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Limitation of Liability. IN NO EVENT WILL FP BE LIABLE FOR: (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF FP IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO THE FOLLOWING : (I) LOSSES ARISING OUT OF FP’S GROSS NEGLIGENCE OR MORE CULPABLE CONDUCT, INCLUDING ANY WILLFUL MISCONDUCT OR INTENTIONAL WRONGFUL ACTS; OR (II) LOSSES ARISING OUT OF FP’S FAILURE TO COMPLY WITH ITS OBLIGATIONS PERTAINING TO CONFIDENTIALITY.
Termination for Cause. In the event that Customer or FP breaches any material provision of the Agreement and fails to cure such breach within thirty (30) days after written notice thereof (which notice reasonably details the alleged breach), the non-breaching Party may terminate the Agreement immediately by written notice to the other Party. In the event that Customer or FP (i) becomes insolvent; (ii) files a petition in bankruptcy for Chapter 7 relief, or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (iii) has a receiver appointed with respect to all or substantially all of its assets; (iv) makes an assignment for the benefit of creditors or (v) ceases to do business in the ordinary course, the other Party may terminate the Agreement immediately by notice in writing.
Assignment. Except as otherwise provided in this Section, neither Party may assign any of its rights or delegate any of its duties under the Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld. Any unauthorized assignment or delegation will be null and void. A Party may, without notice to or consent from the other Party, assign the Agreement in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction, provided that the assignee confirms in writing that it has assumed all obligations of the assignor under the Agreement. The Agreement will be binding upon and inure to the benefit of the Parties’ permitted successors and assigns.
Notices. Any notice either Party desires to give the other Party hereunder shall be in writing. All notices shall be given by delivery to the Parties at their physical or email addresses set forth in the MOU or Order unless such addresses are changed by written notice.
Independent Parties. The Agreement is by and between independent parties. Nothing in the Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
Reservation of Rights. FP reserves all rights not expressly granted to Customer in the Agreement. Except for the limited rights and licenses expressly granted under the Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer, its Authorized Users, or any third party any intellectual property rights or other right, title, or interest in or to FP Intellectual Property.
General. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements with respect to such subject matter, whether express or implied, written or oral. The Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. The Agreement may not be modified except by written agreement signed duly authorized representatives of both Parties. The Agreement shall not be construed against any Party by reason of its preparation. If one or more of the provisions contained in the Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. In this event, the Parties may replace the unenforceable provision with a mutually agreeable and enforceable provision that preserves the original intent and position of the Parties. Any other provisions that survive by their nature shall survive the expiration or termination of the Agreement for any reason. No term or provision of the Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. No consent by any Party to, or waiver of, a breach or default by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or default.
