ECG Standard Terms and Conditions
ECG Consulting Group, Inc. (“ECG”) has developed and owns the rights to conduct and deliver MarketVision™ – The Employee Viewpoint (the “Study”). The Subscriber wishes to subscribe to a non-exclusive, non-transferable license to receive the deliverables relating to the Study on the terms and conditions set out below. Any access, receipt, usage and/or payment of Sponsorship Fees shall constitute acceptance by the Subscriber of these terms. This document outlines the terms and conditions under which the Subscriber agrees to participate in the Study.
Terms and Conditions
1. Definitions.
In this Agreement the following words and phrases shall, unless the context otherwise requires, have the following meanings:
1.A “Agreement” means this Agreement providing for the Subscriber’s sponsorship in the Study;
1.B “Data” means the quantitative information contained in the Study and or which Subscribers supplies to ECG for inclusion in the deliverables related to the Study.
1.C “Subscriber” means a subscriber who sponsors or participates in the Study.
1.D “Sponsorship Fees” means the fees set forth in the ECG’s offer to the Subscriber.
1.E “Subscription Year” means a January-December calendar year as applicable.
2. Sponsorship Fees.
The Sponsorship Fees are as described in ECG’s offer and are exclusive of any expenses or applicable taxes such GST/VAT. The Subscriber will be responsible for the payment of any such taxes and will pay any expenses separately invoiced by ECG within 30 days from the date of such invoice.
3. Deliverables.
In consideration of paying the Sponsorship Fees, the Subscriber shall receive the MarketVision™ – The Employee Viewpoint Report.
4. Warranties.
Notwithstanding anything to the contrary or is inconsistent with this agreement, there are no, and ECG expressly denies and rejects, any warranties, express or implied, including, but not limited to, merchantability or fitness for a particular purpose of the data or deliverables ECG produces. Additionally, there are no, and ECG expressly denies and rejects any warranties as to the correctness, accuracy, precision, or completeness of the Data or deliverables in the Study.
5. Limitation of Liability.
ECG’s aggregate liability shall be limited to an amount equal to the Sponsorship Fees paid to ECG by the Subscriber in the Subscription Year any such liability for loss or damage arises. In no event shall ECG be liable to the other or any third party for special, indirect, incidental, or consequential damages which the other party or any third party may incur or experience due to reliance on or in connection with this Agreement. However, nothing in this Agreement shall exclude or limit liability for death and/or personal injury and any exclusion of liability in this Agreement shall apply only to the extent permissible by law.
6. The Subscriber’s Publication of Information.
The Subscriber may not share, publish or make available any data or deliverables related to this Study. Any disclosure or publication or any kind related to the Study must first be provided to ECG in its proposed format. ECG must provide written confirmation that the Study or any part thereof is accurately referenced in the proposed publication before the Subscriber can publicize that data, and ECG shall have a reasonable time (of not less than five (5) business days) to do so.
7. Intellectual Property Rights.
The Subscriber acknowledges and agrees that ECG duly owns or is licensed to use all intellectual property rights which, for avoidance of doubt, includes all rights in the methodology, Data, analysis, report format, and all materials delivered by ECG to the Subscriber under this Agreement. ECG grants the Subscriber an irrevocable, paid-up, worldwide, non-exclusive license to use all materials delivered for the Subscriber’s internal distribution. The Subscriber shall not remove or destroy any copyright or other proprietary markings or notices or other legends placed by ECG on the materials so provided. The Subscriber recognizes and agrees that nothing contained in this Agreement or in law shall be construed as granting any right, title or interest to the Data or the analysis produced by ECG under this Agreement, or rights to any other ECG intellectual property, except as expressly set forth in this Agreement. In addition, the Subscriber agrees that it will not, nor will it permit, the copying, reproduction, or modification of the Study or any part thereof produced pursuant to this Agreement.
8. Dispute Resolution.
If any dispute arises in connection with this Agreement, directors or other senior representatives of the parties with authority to settle the dispute will, within fourteen (14) days of a written request from one party to the other, meet in a good faith effort to resolve the dispute. If the parties are unable to achieve a settlement of the dispute, then either of them is entitled to institute proceedings.
9. Data Protection and Privacy.
ECG agrees that it shall not directly or indirectly collect, store, process, disseminate or use any Personal Information other than as expressly permitted by this Agreement and as directed by the Subscriber in writing. ECG will comply with applicable federal and state laws and regulations related to the protection of personal information and privacy.
10. Confidentiality
10.A Confidential Information means all information provided by the Subscriber to ECG or vice versa, including, without limitation, this Agreement, the Study report, any documents, notes, memoranda, tape recordings, electronic or any other media exchanged by the ECG and the Subscriber related to the Study. Confidential Information does not include information already within the public domain or any information the Subscriber specifically authorizes in writing be released.
10.B Non-Disclosure. ECG and the Subscriber agree that they shall not disclose the Confidential Information to any person or entity not a party to this Agreement unless required by applicable law or as otherwise agreed by both in writing; provided, however, either may disclose the Confidential Information only to officers, directors, or employees of that entity who have a specific need to know the information.
11. General
11.A Assignment. This Agreement is only assignable by the mutual agreement of ECG and the Subscriber. This provision, however, shall not be construed to limit ECG from subcontracting some of the services required with respect to the deliverables. In such event, ECG will remain responsible for the fulfilment of its obligations under this Agreement.
11.B Force Majeure. Neither party will be liable to the other for breach of its obligations under the Agreement caused by circumstances beyond its reasonable control, including, without limitation, lightening, flood, exceptionally severe weather, epidemics, pandemics, fire, explosion, war, terrorism, civil disorder, industrial dispute, or any change in law promulgated by or any action or decision taken by a government or public authority (including, without limitation, failing to grant a necessary license or consent) (“Force Majeure”). If a party is unable to perform all of its duties for a continuous period of 30 days due to Force Majeure, the other party may terminate this Agreement by giving 30 days’ prior written notice.
11.C Third Parties. The rights of third parties are based on the existence of this Agreement are expressly excluded from this Agreement.
11.D Severability. If any provision of this Agreement is held to be unenforceable, that provision will be severed, and the remainder of this Agreement will continue in full force and effect.
11.E Entire Agreement. This Agreement constitutes the entire understanding and agreement between ECG and the Subscriber relating to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings and agreements relating to such subject matter.
11.F Jurisdiction, Choice of Law and Venue. This Agreement and any dispute arising out of or related to it is governed by New York law. Both parties irrevocably submit to the exclusive jurisdiction of the federal and state courts of New York.