GO CULTURE TERMS OF SERVICE
Last Updated: February 18, 2020
Thank you for using the Go Culture Service, provided by Go Culture International, LLC (“Go Culture”). These Terms of Service apply to you, a user of our Service, and along with any Order agreed by you and Go Culture constitute a binding agreement (the “ Agreement”) between you and Go Culture.
The Agreement applies to and legally binds both you as an individual, and the organization that you are employed by or that you otherwise represent (if any). The Agreement also applies to and legally binds the organization that executes an Order for the Service.
Please read these Terms of Service carefully. By accepting an Order and/or using the Service, you agree that you are bound by the terms and conditions of the Agreement.
If you are accepting these Terms of Service on behalf of your organization, you represent and warrant that you have full power, authority and legal capacity to enter into and bind your organization to the terms of the Agreement.
If you are entering into the Agreement as an individual, you represent that you are at least 18 years of age and have the legal capacity to enter into the Agreement. If you are under 18 years of age, your parent or guardian must enter into the Agreement on your behalf, and this parent or guardian represents that he or she accepts the Agreement on your behalf and that you are 13 or older. You are not allowed to use the Service if you are under the age of 13.
“Administrative User” means a user of the Service who has administrative rights under the Service to configure the Service, including setting up Students.
“Authorized Users” mean collectively the Administrative Users and the Students.
“Contract Year” means the first twelve months after the Effective Date, and every subsequent twelve-month period during the term of an Order.
“Customer Data” means content and data provided by you or an Authorized User in connection with their use of the Service. The term “Customer Data” excludes Operational Data.
“Effective Date” means the date that an Order has been signed or otherwise accepted by the parties.
“Authorized Purpose” means assessment, education and coaching of Students who are participating in an intercultural, diversity, and/or inclusion program, all for your own benefit (including for the education of your Students).
“Order” means an order form, agreement, or other document accepted by you when ordering or agreeing to use the Service. The Order will include the initial Service term, agreed fees and payment terms, and other agreed commercial terms. The Order can be with Go Culture or with an authorized Go Culture reseller.
“Operational Data” means aggregated and statistical data about your use of the Service, including without limitation performance information related to the provision, operation or improvement of the Service. Operational Data shall not include any personally identifiable information under Privacy Laws.
“Privacy Laws” means all applicable privacy, security and data protection laws, rules and regulations in any jurisdiction.
“Service” means Go Culture’s Software as a Service that provides assessments, audio or video coaching content, and related tools and content in support of the Authorized Purpose. The Service includes the provision on a hosted basis of non-exclusive use and access to Go Culture Software, all related apps and technologies, and associated hosting and support services as described herein.
“Student” means a user of the Service who has a need to access and use the Service in connection with the Authorized Purpose, in support of his or her own potential, planned, or actual assessment and/or coaching. If you are an educational institution, then Students may include students, faculties, and staff affiliated with the educational institution. Otherwise, Students must be your owners, employees or contractors.
“Site” means the web site at www.goculture.com and/or such other web site or sites that Go Culture communicates to you where you may access the Service.
“Software” means Go Culture’s proprietary software that is made available to you through the Site on a “Software as a Service” basis, and all updates and associated documentation to such software made available as a part of the Service pursuant to the Agreement.
a. During the Term, Go Culture grants you a limited, non-exclusive, non-transferable right to access and to use the Service only for the Authorized Purpose, subject to the restrictions and limitations in the Agreement, including any limits on number of Students set forth in the Order. You may not use the Service for any other purpose, or after the end of the Term. You may use and access the Service and Software solely through the Site, and solely in accordance with the Agreement.
b. The Service may be used and accessed only by Authorized Users who have a need to access the Service. You shall be fully responsible for use of the Service by your Authorized Users and their compliance with the terms of the Agreement.
c. Your account for access to the Service is for your personal use only. You may not authorize others to use your account, and you may not assign or transfer your account. To use the Service, you will need a username and password. You must keep your username and password confidential. You are responsible for all activities, charges, and liabilities associated with your account. You agree to immediately notify Go Culture of any unauthorized use of your account of which you are aware.
d. This Section applies to organizations acquiring the Service. You may authorize your Authorized Users to access and use the Service, on condition that those Authorized Users accept these Terms of Service before or during their first use of that Service. You shall ensure that Authorized Users and any other person that uses the Service through the use of one of your accounts comply with these Terms of Service. You shall take all reasonable precautions necessary to safeguard against unauthorized access and use of the Service based on your accounts, including ensuring that an Authorized User ceases use of the Service after that Authorized User is no longer associated with you.
e. You may only access and use the Service through the interface provided by Go Culture and for lawful purposes. You warrant and agree not to:
· Violate any laws or regulations of any applicable jurisdiction in connection with your activities relating to the Service (including without limitation any Privacy Laws), or otherwise use the Service in any way that is in furtherance of criminal, fraudulent, or other unlawful activity;
· Upload, post, or otherwise transmit through, to or otherwise using the Service any personally identifiable information without the consent of the associated individual, or without otherwise having the right to do so under Privacy Laws;
· Upload, post, or otherwise transmit through, to or otherwise using the Service any content that infringes or violates any intellectual property right, publicity right, privacy right, or other right of any third party;
· Upload, post, or otherwise transmit through, to or otherwise using the Service any content that contains any malware, viruses, spyware, worms, or other malicious code or files;
· Disrupt the normal flow of communication in the Service or otherwise act in a manner that negatively affects any other users’ ability to use or benefit from the Service;
· Interfere with or disrupt the Service or servers or networks connected to the Service;
· Use any automated means to obtain content and information on the Service, including any scraping technologies;
· Interfere with or attempt to interfere with any other person’s use of the Service;
· Gain access to or attempt to gain access to any account, computers or networks related to the Service without authorization;
· Frame or mirror any part of the Service;
· Use metatags or code or other devices containing any reference to any Go Culture trademark or the Service in order to direct any person to any other website or Service for any purpose; or
· Forge headers or otherwise manipulate identifiers to disguise the origin of any content or communication transmitted through the Service
f. Go Culture reserves the right to prohibit any conduct or to remove any Customer Data and/or other material posted by you by and through the Service that Go Culture believes, in its sole discretion: (a) to be in violation of the Agreement, or (b) is illegal, potentially harmful to others, otherwise objectionable or that may expose Go Culture or any of its customers to harm, damage to reputation or liability.
g. Go Culture may with or without notice add features to the Service, change the Service or remove features of the Service.
h. If the Order states that you are receiving a pre-production or “beta” version of the Service, then the terms of this Section shall apply. You acknowledge and agree that the Service is in pre-production form and will likely contain bugs and issues. You shall be solely responsible for any data and/or software loss or corruption arising from any use of the Service and for the protection and back-up of any Customer Data and software used in conjunction with the Service. Go Culture reserves the right to withdraw the provision of the Service and to modify features and terms associated with any commercial release.
3. Fees and Expenses
a. You agree to pay Go Culture or its reseller all fees associated with the Service as set forth in the Order.
b. If credit card payments are specified on the Order, You (the organization acquiring the Service) authorizes your credit card to be charged by Go Culture for the invoiced amount at the time of invoice. If you are not paying by credit card, then you agree to pay invoiced amounts within fifteen (15) days of receipt of invoice.
c. The amount and structure of all fees and rates may be adjusted by Go Culture effective upon renewal of the Service. Go Culture will provide at least sixty (60) days’ notice of any change in fees or rates hereunder.
d. All payments under the Agreement are non-refundable and, unless otherwise agreed, shall be made in United States dollars. Past-due payments will be subject to late payment charges of the lesser of: (a) one and one-half percent (1 ½ %) per month, or (b) the maximum rate allowed by law.
e. You shall be responsible for all applicable taxes, however designated, incurred in connection with the Agreement, including but not limited to state and local privilege, excise, sales, VAT, and use taxes and any taxes or amounts in lieu thereof paid or payable by Go Culture, but excluding taxes based upon the income of Go Culture.
f. Go Culture may from time to time offer Service promotions and discounts for which you may be eligible, including free trials and promotions available for a limited time. Unless otherwise specifically noted, Service promotional offers and discounts apply to first-time purchasers only. Separate terms and conditions may apply to promotional offers and discounts. If offered, free trials of the Service may require that you register as a registered user. This enrollment may obligate you to continue the Service beyond the expiration of the free trial period unless you take the steps necessary to cancel your account. You should carefully consider these obligations before attempting to enroll in any free trial.
g. An authorized Go Culture reseller may set different payment terms or arrangements in its Order, which will take precedence over the terms in Sections 3(b) through 3(f). Your right to use the Service will be dependent on your reseller paying Go Culture for such Service.
4. Term and Termination
a. The Agreement and your right to use the Service remain in effect for the time period specified in the applicable Order (the “ Initial Term”), unless terminated earlier in accordance with the Agreement.
b. Except as otherwise specified in an Order, subscriptions for the Service will automatically renew for additional annual renewal terms (each, a “ Renewal Term”) unless either party provides notice of non-renewal at least 30 days prior to commencement of the next Renewal Term. As used herein, “Term” means the Initial Term and all Renewal Terms.
c. If either party materially breaches the Agreement, and such breach is not cured within thirty (30) days after written notice of the breach from the other party, then the other party may terminate the Agreement. In addition, Go Culture may suspend the Service (or any portion thereof) upon notice to you if you breach the Agreement.
d. Any terms of the Agreement that by their nature are intended to survive any termination or expiration of the Agreement, will so survive, including Sections 5 – 13 of these Terms of Service.
a. “Confidential Information” means any non-public information or data that is disclosed by one party to the other party pursuant to the Agreement. The Confidential Information of Go Culture includes the non-public aspects of the Software. Your Confidential Information includes personal information associated with your Authorized Users as well as the Customer Data. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of the Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.
b. A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, (b) to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (c) except as expressly authorized by the Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Notwithstanding the foregoing, a receiving party may disclose Confidential Information as required by law; in such event, the receiving party shall (if permitted by law) inform the other party prior to any such required disclosure to allow the other party to seek a protective order or other limitations on such disclosure. Each party shall promptly notify the other party in writing if it becomes aware of a breach of the confidentiality obligations herein.
c. Go Culture maintains reasonable security measures to help protect against the loss, misuse and alteration of your Confidential Information under its control.
d. Each party acknowledges and agrees that any violation of this Section 5 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that disclosing party shall have at law or in equity.
6. Intellectual Property and Customer Data
a. You agree that Go Culture and its licensors own all intellectual property rights in and to the Service, the Software, Operational Data, and the Site, including but not limited to the look and feel, organization, designs, algorithms, templates, data models, logic flow, text, graphics, logos, report formats, and screen displays associated therewith. You will not reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. You further agree not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party for such third party’s benefit. Go Culture reserves all rights in the Service and Software not expressly granted to you hereunder.
b. You acknowledge and agree that Go Culture and its licensors’ trademarks, brand names and copyright notices will be included on the Service and associated documentation. You agree not to remove, modify, obscure or hide any trademarks, brand names or any other proprietary rights notices included on the Service and associated documentation. You do not obtain any rights to use Go Culture’s trademarks under the Agreement.
c. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information submitted to Go Culture relating to modifying or improving the Service (“Feedback”) are non-confidential. Go Culture may use Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You grant to Go Culture a worldwide, non-exclusive, royalty-free, perpetual, irrevocable, transferable, sublicensable license to use Feedback.
d. Go Culture agrees that you retain ownership of all your rights in and to Customer Data. You grant Go Culture a royalty-free, worldwide, non-exclusive, and transferable right and license to use, copy, reproduce, create derivative works from, distribute, transfer, perform and display such Customer Data in order to provide the Service and as otherwise expressly permitted by the Agreement.
7. Warranties; Disclaimers
a. You and Go Culture each warrant that they have full authority to enter into the Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder.
b. You represent and warrant that all Customer Data: (i) is owned by you, or you have the full right to provide the Customer Data to Go Culture; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person’s right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. You further represent and warrant that use of Customer Data on the Site or in connection with the Service is not in breach of any covenant or obligation of confidentiality that you have to any other person or entity. Notwithstanding anything to the contrary herein, you are solely responsible for the Customer Data, and acknowledge that Go Culture has no responsibility or intent to review or monitor any Customer Data.
c. You shall be solely responsible for your use of the Service, and, acknowledge and agree that the Service is strictly a tool to be used in conjunction with good and reasonable judgment by competent personnel.
d. Go Culture makes no warranties as to information and data provided by any user through the Service. Go Culture does not warrant that the Service will operate without interruption or error-free, or that the Service will be totally secure. To the extent that data is being transmitted over the Internet hereunder, you acknowledge that Go Culture has no control over the functioning of the Internet, and Go Culture makes no representations or warranties of any kind regarding the performance of the Internet. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, GO CULTURE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTIES ARISING AS A RESULT OF USAGE IN THE TRADE OR BY COURSE OF DEALING.
You, at your expense, shall indemnify, defend and hold Go Culture and its officers, directors, owners, employees, and affiliates harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to your use of the Service, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) your breach of any representations, warranties, or covenants in the Agreement, (b) your compliance with applicable laws and regulations, and (c) your Customer Data. Go Culture shall provide you with prompt written notice of any third-party claim covered by the foregoing and sole and exclusive authority to defend and/or settle such claim.
a. The limit of a party’s liability (whether in contract, tort, negligence, strict liability in tort, or by statute or otherwise) to the other party in any manner related to the Agreement or the Service, for any and all claims shall not exceed in the aggregate the fees paid or payable by you to Go Culture hereunder with respect to the Service at issue) during the six (6) months prior to the date that the relevant cause of action accrued; provided that the foregoing will not limit your obligation to pay any fees due under the Agreement.
b. In no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence. You agree that Go Culture is not liable for any loss, damage, or injury based on information directly or indirectly obtained through the Service.
c. The exclusions of damages and limitations of liability in this Section shall not apply to: (1) a party’s breach of its confidentiality obligations under the Agreement, (2) your breach of your obligations under Section 2 above, or (3) a party’s indemnification obligations under the Agreement.
d. No action, regardless of form, arising out of or related to the Agreement may be brought by you more than one (1) year following the event with gave rise to the cause of action.
e. The allocations of liability in this Section represent the agreed and bargained-for understanding of the parties and Go Culture’s compensation reflects such allocation. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.
10. Third-Party Services
a. The Service may include services or other technology provided by third parties (“Third-Party Services”). The applicable supplier of any Third-Party Service is an intended third-party beneficiary of the Agreement and may enforce the Agreement directly against you with respect to such Third-Party Service. Alternately, an Order (or activation process) for a Third-Party Service may include or be accompanied by a separate service, license, or other agreement (“ Third-Party Agreement”), in which case that Third-Party Service is provided solely under the terms of that separate Third-Party Agreement.
b. Placing an Order for a Third-Party Service that includes a separate Third-Party Agreement, or activating a Third-Party Service for which the activation process includes a Third-Party Agreement, constitutes your acknowledgment that you agree to all applicable Third-Party Agreements. Go Culture is not a party to, and is not liable for breaches of, any Third-Party Agreement.
c. Go Culture assumes no obligation or liability for: (1) the functionality or performance of Third-Party Services, including their content, accuracy, or reliability, or (2) the acts and omissions (including with respect to privacy practices) of the suppliers of Third-Party Services. You acknowledge that a Third-Party Agreement might give the applicable third-party supplier rights with respect to your data beyond those allowed by these Terms of Service or Go Culture’s Privacy Notice. Go Culture does not guarantee that a third-party supplier will comply with its agreement with Go Culture or its Third-Party Agreement with you, and Go Culture is not required to enforce its agreement with a supplier of a Third-Party Service.
11. Dispute Resolution
a. The parties agree to work together in good faith to resolve any dispute regarding the Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration.
b. Any dispute, controversy or claim arising out of or relating to the Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Raleigh, North Carolina (USA), under the commercial arbitration rules of the American Arbitration Association. The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief.
c. The Agreement shall be interpreted, construed, and governed by the laws of the State of North Carolina, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement.
a. The parties are and intend to be independent contractors with respect to the services contemplated hereunder. Go Culture agrees that neither it, its employees nor its contractors shall be considered as having an employee status with you. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created. There are no intended third-party beneficiaries under the Agreement.
b. Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
c. The Agreement (including the Order) constitutes the entire understanding of the parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral communications, understandings or agreements with respect to its subject matter. No waiver of any provision of the Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right. Any FAQs or similar documents included in or associated with the Service are for informational purposes only and are not deemed to be part of the Agreement.
d. You shall have no right to assign the Agreement or any of your obligations hereunder. Go Culture may assign the Agreement and any of its rights hereunder to third parties.
e. Go Culture may use your company name and logo on Go Culture’s marketing website and in marketing materials.
f. Every provision of the Agreement is intended to be severable. If any section of the Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from the Agreement and the rest of the Agreement will remain in full force and effect.
g. You agree to comply with all relevant export laws and regulations, including, but not limited to, the U.S. Export Administration Regulations and Executive Orders (“Export Controls“). You warrant that you are not a person, company or resident in a jurisdiction restricted or prohibited by Export Controls (“Restricted Person“). You will not, directly or indirectly, export, re-export, divert, or transfer the Software or Service, any portion thereof or any materials, items or technology relating to Go Culture’s business or related technical data or any direct product thereof to any Restricted Person.
h. This Agreement may be modified only by mutual agreement of the parties.