Hogan Assessment Systems, Inc. (“Hogan”) is committed to the security, availability, processing integrity, and confidentiality of its internet-based website, testing, administration and management platform known as Hogan Assessment Link Online (“HALO”). You (“Company”) are a Relevant customer that has been granted access to HALO and the Products.
The following terms and conditions, effective as of the date first set forth above, govern the use of HALO and the purchase of any Products by Company or Company’s HALO Authorized User as defined below. Relevant provides access to HALO and the Products subject to these Terms and Conditions.
Effective January 20120
BY USING HALO YOU AGREE TO THESE TERMS AND CONDITIONS OF USE (“TERMS AND CONDITIONS”). PLEASE READ THEM CAREFULLY.
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 and Conditions shall be resolved in favor of such agreement. However, to the extent such agreement does not address access to and use of HALO, these Terms and Conditions shall apply to such access and use. In the event Company is accessing HALO pursuant to the terms of an agreement with one of Hogan’s distribution partners, Sections 5 and 6 of these Terms and Conditions, among others, may not apply, and any conflict between Company’s agreement with the distribution partner and these Terms and Conditions shall be resolved in favor of such agreement.
1.0 Introduction
Company and its Authorized User(s) hereby acknowledge that the entire contents of HALO and the Products available through HALO are protected by copyright (unless otherwise indicated on the title page of the article). Company and its Authorized User(s) have certain rights specified below; all other rights are reserved.
2.0 Definitions
Whenever used in these Terms and Conditions, the following capitalized terms shall have the meaning set forth below:
“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.
“Company” – A Relevant customer that has been granted access to HALO and to the Products and by using the same has accepted and agreed to these Terms and Conditions.
“Authorized Users” – 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.
“Hogan Intellectual Property” – Without limitation, any and all intellectual property and other rights of Hogan of any kind and nature, including, without limitation, any: (i) copyrights (including rights in computer software), trademarks, trade names, domain names, goodwill associated with trademarks and trade names, designs, and patents; (ii) rights relating to innovations, know-how, trade secrets, know-how of confidential, technical, and non-technical information; (iii) moral rights, mask work rights, author’s rights, and rights of publicity; and (iv) other industrial, proprietary and intellectual property related rights anywhere in the world, that exist prior to or 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. Company and its Authorized User(s) acknowledge that HALO, the Products and the Hogan Intellectual Property Rights contained therein are protected by law. All rights not specifically licensed to Company are expressly reserved by Hogan.
“Work Product” – All Hogan and Relevant information, documents and copyrightable material and other tangible and intangible materials authored and delivered by Hogan and Relevant in connection with the Products and included therein but excluding Hogan Intellectual Property. 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 prior to or as of the Effective Date or that hereafter come into existence: (i) all tools, inventories, mentoring scales, assessments, characteristics, composites, systems, 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.
“Confidential Information” – 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 Company’s (or its Authorized User(s)’) use of HALO, the Products or these Terms and Conditions, 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, 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.
“Products” – Those items containing Work Product developed and delivered to Company via HALO pursuant to these Terms and Conditions. Products include but are not limited to 1) assessments, collectively referred to as Hogan’s current and any newly-created assessments of any kind, their component scales and any variations of such components and scales; 2) tools, including all Hogan Products supplied via HALO under these Terms and Conditions, including but not limited to assessments; 3) materials, including but not limited to 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, reference works, answer forms, technical manuals, and reports provided to Company under these Terms and Conditions; 4) reports, meaning documents such as graphs and narrative text generated from scoring assessments, including but not limited to reports used for individual and/or group selection and development or organizational development; and 5) databases and content available on HALO.
3.0 HALO Access
Relevant grants to Company a non-transferable and non-exclusive access to use HALO for its intended purpose of administration and management of Hogan’s assessment solutions. The granting of this access is active upon issuance by Relevant of a HALO authorized user login id and Company’s acceptance of these Terms and Conditions. Relevant reserves the exclusive right to suspend Company’s HALO access should Company fail to meet any of its obligations under these Terms and Conditions, or if, at Hogan’s/Relevant’s sole discretion, Company is deemed to act in a manner inconsistent with the intended and/or proper use of HALO.
4.0 Term and Registration
The term of these Terms and Conditions and the license granted to Company herein begins on the Effective Date of Company’s acceptance of these Terms and Conditions and will be continued until terminated by either party (“Term”). Company warrants and represents that all registration information provided is accurate and truthful. Company also agrees to immediately inform Relevant of any changes in the status of its registration information or that of any Authorized User that may affect eligibility as a HALO Authorized User.
5.0 Orders and Payment
Not applicable
6.0 Proper Use of Products and HALO Access
Company agrees to use HALO and the Products with professional competence, and in a manner consistent with the Products’ 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 that govern employment practices under the Company’s jurisdiction. Company also represents and warrants that any Products Company purchases will be used by it or under its direct supervision in a manner consistent with all professional, ethical, and regulatory guidelines and standards.
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. At Hogan’s sole option, participant login IDs and reports may be deleted or archived off HALO 1) at the end of the twenty-four (24) month period; or 2) upon earlier termination of Company’s access as provided under these Terms and Conditions.
7.0 Protection of Products
The Products available through HALO are the proprietary property of Hogan, and title to the Products and all Intellectual Property subsisting therein remain with Hogan until Company completes the purchase of the Products pursuant to Section 10.0. 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 this any right, license, or privilege to the Products granted under these Terms and Conditions to another party. Company shall not copy, duplicate, download, or otherwise disseminate the Products without the explicit written permission of Hogan. Company shall not modify or alter the physical or electronic characteristics of HALO or any aspect of the HALO electronic environment, and shall not be party to any attempt to dismantle, reverse engineer, or electronically intrude into HALO or the Products.
8.0 Indemnity
Company agrees to indemnify and hold Hogan & Relevant and its testing content suppliers harmless against claims, liabilities, demands, damages, costs, or expenses, including attorney’s fees and expenses, arising from or connected with Company’s use of HALO, the Products and/or Company’s failure to perform its other obligations under these Terms and Conditions.
9.0 Confidentiality
Hogan and Company may exchange certain Confidential Information through Company’s use of HALO and to facilitate Hogan’s provision of the Products. 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 these Terms and Conditions. To the extent practicable, Confidential Information to be protected shall be marked “Confidential.” Except as necessary for proper evaluation, Confidential Information may not be duplicated in any manner without the written permission of the disclosing party; all Confidential Information exchanged between the parties must be returned to the disclosing party upon request. 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.
10.0 Ownership of the Products upon Payment
Products and any Work Product contained therein shall become the property of Company upon delivery thereof by Relevant, acceptance by Company, and full and complete payment by Company of all associated Fees for the Products. No rights, title or interest to any Hogan Intellectual Property (as defined herein) is given to Company; all such rights are hereby reserved by Hogan. Hogan further reserves the right to use any data not identified as Confidential Information (other than personally identifiable information received from Company) supplied by Company and/or generated by Hogan in connection with the Products, and agrees to do so with the utmost care for the security and privacy of Company and any individual assessment participants. 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. 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 all documents necessary to confirm or otherwise establish Hogan’s rights therein.
11.0 Rights to Prior Reports and Assessment Responses
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 purchased 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 purchased by Company) 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.
12.0 Warranty
With respect to HALO and the Products, Hogan and Relevant disclaims any and all warranties, whether express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. If the Products purchased pursuant to this Agreement are defective, Company’s sole and exclusive remedy shall be the replacement or repair, at the option of Relevant, of the defective Products.
13.0 Intent and Authority to Bind Company
These Terms and Conditions constitute a legally binding contract between Hogan and Company and govern Company’s (and its Authorized User(s)’) use of HALO and access to the Products. By accepting these Terms and Conditions, by accessing or using HALO, or by authorizing or permitting any agent or employee to access HALO, Company agrees to be bound by these Terms and Conditions. If you are entering into these Terms and Conditions on behalf of a company, organization or another legal entity (i.e. Company), you are agreeing to these Terms and Conditions for that entity and representing to Hogan that you have the authority to bind such entity and its affiliates to these Terms and Conditions. If you do not have such authority, or if you do not agree with these Terms and Conditions, you must not accept these Terms and Conditions and may not use HALO.
14.0 Liability
Liability of Hogan and Relevant for loss or damage relating to Company’s use or inability to use HALO and the Products shall be limited to the charges paid by Company for the Products involved and/or replacement of the same at the option of Hogan. IN NO EVENT WILL Hogan and RELEVANT BE LIABLE TO COMPANY FOR ANY CLAIM MADE AGAINST COMPANY BY ANY PARTY OR FOR ANY CLAIM MADE BY COMPANY FOR LOST BUSINESS OR PROFITS, OR FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES.
15.0 Privacy and Data Protection Policy
Hogan recognizes the importance of protecting the information it collects in the operation of HALO and will act in compliance with the Privacy Policy posted at http://www.hoganassessments.com.
16.0 General
16.1 Either party’s waiver of any breach or failure to enforce any of these Terms and Conditions at any time shall not in any way affect, limit or waive such party’s right thereafter to enforce and compel strict compliance with the same.
16.2 These Terms and Conditions are governed by the laws of the State of Oklahoma, and absent any other agreements as referenced herein, constitute the complete agreement between Company and Hogan regarding Company’s (and any Authorized User(s)’) use of HALO and Hogan’s provision of Products. The parties agree that any suit brought by either party arising out of or relating to these Terms and Conditions, the license granted herein, Company’s use of HALO, or the Products shall only be brought in a court located in Tulsa County, Oklahoma.