Master Agreement

Last updated: May 1, 2019

By agreeing to this Master Agreement (“Agreement”) you represent that you have the right and authority to enter into this Agreement and bind your organization (“Customer”) to its terms and conditions.
1) Product License.

a) Under the terms and conditions of this Agreement, Zenger Folkman (”ZF”) grants the Customer a non-transferable, non-exclusive license (“License”) to use the following ZF products (“Products”) in conjunction with a Zenger Folkman training service (“Service”):

i) The ZF online assessment instrument (“The Assessment”).

ii) All existing ZF participant and facilitator materials available generally to ZF customers (“ZF Materials”).

b) The Assessment License

i) The Customer agrees to provide access to The Assessment to each Customer employee who participates in a ZF training Service (“Survey Participant”).

(1) Each Survey Participant will be licensed to access The Assessment during the term of an active Order Form (“Access Period”) between ZF and Customer.

(2) Where applicable, each Survey Participant may designate an unlimited number of other persons (“Respondents”) to access The Assessment during the Access Period for the purpose of assessing the Survey Participant.

(3) An assessment report showing the results of The Assessment will be made available to each Survey Participant prior to or during the Service if the Survey Participant has completed his or her self-assessment and/or received a sufficient number of responses from Respondents by five (5) business days before each Service.

c) General Participant License: This License authorizes each Customer employee who participates in a ZF Service (“Event Participant”) to have perpetual use of the ZF Materials for his or her personal development in accordance with the terms and conditions of this Agreement. Customer agrees to provide ZF Materials solely to Event Participants.

d) General Facilitator License: This License authorizes Customer employees who successfully complete the ZF Facilitator Certification as described below and in an associated Statement of Work (“Facilitator Candidates”), to be licensed as certified Zenger Folkman Facilitators in the respective program in which they have participated. Customer agrees that Customer Facilitator Candidate(s) will sign the Zenger Folkman Facilitator Agreement prior to certification.

2) Training Services.

a) Customer agrees that Services will only be facilitated by consultants approved and certified by ZF.

b) ZF agrees to make certified consultants available to facilitate the Service for Customer as shown in Order Form.

3) Hosting Services.

a) During the term of this Agreement, the Customer may access and use The Assessment in the form of an online solution over the Internet.

b) The “Assessment Platform” includes the servers, computers, storage media, hardware, and systems selected or designated for the storage, hosting and management of The Assessment. The Assessment Platform may be hosted by a third-party sub-processor who has logical access to The Assessment and Customer data.

c) Users designated and authorized by the Customer will gain access to and use The Assessment and the Assessment Platform via IDs and passwords provided to the Customer.

d) The Customer will have continuous access to the Assessment Platform during the term of this Agreement for twenty-four (24) hours per day, seven (7) days per week, with an availability level of no less than 99.0%.

e) ZF agrees to provide technical support for The Assessment by telephone and email during regular business hours (8:00 A.M. to 5:00 P.M. Mountain Time).

f) All data collected by The Assessment will be managed, processed and stored in the US.

4) Ownership.

a) All Products and any derivative works provided to the Customer by ZF in the performance of this Agreement are the property of ZF or its licensor(s) and are protected by United States copyright and other intellectual property laws. The Products are licensed, not sold, to the Customer for use only under the terms of this Agreement, and ZF or its licensor(s) reserve all rights not expressly granted to the Customer in this Agreement.

b) The Customer may not use, copy, modify, or transfer the Products, in whole or in part, except as expressly provided in this Agreement. Neither the Customer nor a third party may reverse engineer, disassemble, decompile, or translate the Products, or otherwise attempt to derive the source code of the software. , or authorize any third party to do any of the foregoing. The Customer may not rent, lease, loan, resell, or distribute the Products, or any part thereof, in any way.

5) Term and Termination.

a) The Term of this Agreement shall continue in effect until terminated as set forth herein.

b) Either party shall have the right to terminate (“Termination”) this Agreement by giving thirty (30) days prior written notice to the other party. Termination shall not affect the License rights or obligations with respect to any Products provided or Services performed prior to Termination, or the Customer’s obligation to pay in full all amounts due to ZF in accordance with this Agreement.

6) Fee Payments.

a) The Customer agrees to pay ZF the fees for the Product License, Workshop Services, and Hosting Services as shown in Order Form:

b) All Fees are exclusive of shipping and handling.

c) An invoice for all Fees will be delivered upon the completion of each Service. Payment terms are net 30 days. Any Fee Payments made that are more than ten (10) days past the payment terms date shall be subject to a finance charge of 1.5% per month or the maximum rate allowed by law, whichever is less, until paid in full.

d) Any taxes or government assessments or duties relating to this Agreement or to payments or services to be rendered under this Agreement shall be paid by the Customer. In the event that ZF must withhold or pay such taxes on the Customer’s behalf, the Customer will be invoiced for these payments and related charges or assessments. (This section does not apply to ZF’s federal or state taxes based upon its income.)

e) Customer is responsible for providing complete and accurate billing and contact information to ZF and notifying ZF of any changes to such information.

7) Cancellation and Refunds

a) Customer will not be charged a fee for Services if Customer cancels the scheduled Service and notifies ZF in writing at least 28 calendar days prior to the scheduled Service. Customer agrees to pay ZF 50% of the Services fee if such cancellation notice is given 14 to 27 calendar days prior to originally scheduled Service and 100% of the Services fee if ZF is given less than 14 calendar days cancellation notice.

b) Requests for refunds of returned Participant Materials will be honored if 1) the returned Participant Materials are in new condition, 2) the returned Participant Materials are non-customized, 3) the Participant Materials are returned within 30 days of delivery, and 4) Customer supplies ZF with a tracking number for returned Participant Materials shipments. There will be an 18% restocking fee charged on all returned Participant Materials that meet the above criteria.

8) Indemnification, Warranties, and Disclaimers.

a) Each Party agrees to indemnify the other against, and hold it harmless from, any claims, damages, losses and liabilities caused or alleged to be caused by the negligence of its own personnel. This includes, without limitation, indemnification against claims arising from personal physical injury or damage to property caused or alleged to be caused by either Party or any of its personnel. Indemnification includes, without limitation, the payment of judgments, settlements, attorneys’ fees, and other costs and expenses.

b) Customer understands and agrees that ZF initiates, processes, and delivers 360-degree and other multi-rater surveys and data for its clients. It performs those activities in ways that offer assessment anonymity to those who provide survey ratings and survey results privacy to those leaders who are rated and receive survey reports. The degree to which actual anonymity and privacy benefits exist depends on numerous factors. These include, among others, whether and to what degree such assurances were communicated to participants; the information provided in surveys by the raters themselves; the use and communication by leaders of their own 360-degree results; and on the access Customer has to and its use of the collected 360 survey data. If Customer requests that ZF provide it with multi-rater survey data (the “Data”) that ZF collects on Customer’s behalf, Customer agrees that it (a) understands and acknowledges that its request for, receipt, and use of the requested Data may violate actual or implied (in either or both written or oral form) assessment anonymity and survey results privacy assurances that are given by Customer or ZF (at Customer’s instruction) to participants in the surveying and reporting process; (b) assumes all risks, resulting from the request for, receipt, and use of the Data; and (c) will indemnify and hold harmless, ZF and its directors, officers, shareholders, employees, agents, contractors, and their successors and assigns against any claims, and liabilities arising out of or related to the request for, receipt, and use of the Data, whether related to anonymity, privacy, damage, injury, or any other cause of action.

c) Disclaimer. With respect to the products and services described in this agreement, ZF makes no warranties, representations or promises not expressly set forth in this agreement. ZF disclaims and excludes any and all implied warranties of merchantability, fitness for a particular purpose and noninfringement. ZF specifically does not warrant that the information and material contained in the products or the use of the products will meet the customer’s requirements. ZF does not warrant or make any representations regarding the use or the results of the use of the products in terms of correctness, accuracy, reliability, or otherwise. No oral or written information or advice given by ZF or its authorized representatives shall create a warranty or in any way increase the scope of this warranty.

d) Limitation on liability. Neither party shall be liable to the other party (regardless of the form of action or the claim, e.g., contract, warranty, tort, malpractice and/or otherwise) for indirect, incidental, punitive, or consequential damages or for any loss of revenue, profits, business opportunities, or for any failure to realize savings or other benefits, even if advised of the possibility of any of the foregoing. The aggregate liability of ZF relating to or arising from this agreement and for any and all causes of action shall not exceed the amount of fees actually paid by the customer to ZF under this agreement. This section shall not apply to any tort liability of either party based on negligence or willful misconduct resulting in physical damage to tangible property or personal injury or death.

e) ZF will ensure that reasonable, current, industry standard security measures will be maintained to prevent unauthorized access to Customer data collected under this Agreement. Such measures shall include, where appropriate, use of firewalls, virus screening software, logon identification and passwords, prompt application of current security patches, virus definitions and other updates. Notwithstanding the foregoing, Customer understands and acknowledges that the transmission of data through the Internet is not inherently secure, and that security measures are not foolproof. If website scanning, penetration testing, or any other form of testing is requested (or performed) by Customer, Customer confirms that it, any, and all testing (whether paid for by Customer or ZF) will be pre-approved in writing by ZF. ZF may use Customer’s data as submitted from Customer through ZF’s assessments in aggregated and anonymized form to do research and calculate norms. All Customer survey data is deemed confidential information.

9) General Provisions.

a) Assignment and Successors. This Agreement is not assignable or transferable, except in connection with any reorganization, consolidation, acquisition, sale, merger of either Party, or the acquisition of substantially all of either Party’s assets. Any such assignment must first be approved in writing by the non-assigning Party, where such approval may not be unreasonably withheld.

b) Governing Law and Forum. This Agreement shall be governed by the laws of the state of Utah without giving effect to conflict or choice of law principles. Any controversy or claim arising out of or relating to the Agreement, or breach thereof, shall be submitted to the following procedure: (a) direct negotiation in a settlement conference to be scheduled as soon as possible after the dispute arises; (b) if no resolution is reached within sixty (60) days of the settlement conference, the parties will submit the dispute to non-binding mediation in Utah under the mediation rules of the American Arbitration Association; (c) if no settlement is reached within sixty (60) days of the start of mediation, either party may seek legal redress exclusively in the state or federal courts within Utah and its appellate courts. The Parties agree and submit to such exclusive jurisdiction and venue.

c) Force Majeure. Except for obligations to make payment, neither Party shall be deemed in breach of this Agreement for any failure to perform an obligation where such failure is beyond the control of that Party.

d) Waiver and Severability. The failure of either Party to enforce any provision of this Agreement shall not be deemed a waiver of that provision or of the right of the Party to thereafter enforce that or any other provision. In the event that any provision of this Agreement is held to be invalid, unenforceable or illegal, the provision will be limited or eliminated so that this Agreement shall otherwise remain in full force.

e) Entire Agreement. This Agreement: (i) represents the entire agreement between the Parties and will govern all future transactions between the Parties, Any terms or conditions of any purchase order, representations, warranties or other document submitted by the Customer in connection with the subject matter of this Agreement which are in addition to, different from, or inconsistent with the terms and conditions of this Agreement are not binding on ZF and are ineffective.

f) Notices. Any notice under this Agreement will be in writing and delivered in person, or by, courier, facsimile, or certified or registered mail. Such notices will be deemed given upon confirmed delivery. Notices will be sent to each party at its address set forth on Order Form or to such other address as that party may specify in writing.