Notable Changes to General Terms
Section 1.1 ENERGAGE SERVICES
Clarification: Access to Services ordered will be terminated at the end of the subscription term.
Section 5.4 LICENSE FOR RESEARCH AND DEVELOPMENT
Clarification: The use of de-identified, aggregate data (data sets) may be used in employer recognition programs.
Section 5.8 ENERGAGE INTELLECTUAL PROPERTY RIGHTS
Clarification: Services provided, data sets, reports, survey statements are considered Energage IP.
Section 7.2 UNACCEPTABLE USES
Clarification: Energage survey statements or content accessed through the Services cannot be used within another tool not provided by Energage.
Section 8.2 TERMINATION WITHOUT CAUSE
Clarification: Notice of termination must be provided before 30 days prior to the end of the subscription term.
Section 2.3 AUTOMATIC RENEWAL
Change: Renewal notice adjusted from 30 days to 60 days.
Section 8.5 CONSEQUENCES OF TERMINATION
Addition: Explicit statement that Energage reserves the right to collect outstanding fees as stated in the Service order.
Clarification: Edited for consistent use of terms (E.g. Changed Company to Customer)
Definitions
Addition: Defined Service Order as the contract that outlines the specific services used by Customer.
Section 2.3 AUTOMATIC RENEWAL
Change: Adjusted renewal from 30 days prior to subscription term date to 0 days prior to subscription term date.
Clarification: Customers must provide 30-day notification for subscription cancellation.
Section 5.7 CUSTOMER LISTS
Clarification: Organizations may be contacted by an Energage partner for the purpose of an employer recognition program.
Section 7.5 DISQUALIFICATION & WITHDRAWAL
Addition: Section clarifies Energage’s right to disqualify customers from an employer recognition program for conduct that interferes with or harms the integrity of the program.
Section 7.1 LEGAL COMPLIANCE
Clarification: The lawful and non-discriminatory use of respondent information pertaining to race, nationality, gender or other protected category.
Section 5.10 CUSTOMER-PROVIDED CONTENT
Addition: Section clarifies that customer is responsible for all rights and permissions required to use non-Energage content within Energage Services.
Definitions
Addition: Defined Employer Recognition Program
Section 2.1 FEES FOR SERVICES
Clarification: Fees for Services purchased are due whether Services are used or not.
Section 6.3 CUSTOMER COMMUNICATIONS
Addition: Section ensures Customer receives operational communication necessary for operating, administering, and supporting Energage Services.
Definitions
Clarification: Users includes survey invitees
Section 1.4 CUSTOMER THIRD PARTY SERVICES
Clarification: The title of this section has been changed from THIRD-PARTY SERVICES to clarify that this section refers to the Customer’s potential third-party services, not Energage’s.
Section 2.2 PRICE CHANGES AND USER INCREASES
Clarification: Energage reserves the right to calculate the total number of Users periodically and if the number of Users exceeds your current Subscription, Energage may invoice you for the additional Users on a pro-rated basis for the remaining period left in your Subscription Term.
Section 2.3 AUTOMATIC RENEWAL
Clarification: With automatic renewal, your Services Subscription will renew at price not greater than 10% above previous Term price for the successive Subscription Term.
Section 3.2 SECURITY
Addition: Section references Energage’s Trust and Security information (located here: https://www.energage.com/trust/) for information about security, data protection, and data processing.
Section 5.9 ENERGAGE PLATFORM THIRD-PARTY SERVICES
Clarification: The title of this section has been changed from PLATFORM SUB-PROCESSORS to clarify that this section refers to Energage third-party services.
Removal: The word “sub-processor” has been removed because that topic is covered in detail in Energage’s Data Processing Agreement. The link to that is now stated in Section 3.2, as noted above.
Definitions
Clarification: Customer Data means Customer’s proprietary data and information that Customer provides to Energage so that Energage may, as part of the Services, conduct an assessment (e.g., demographic and corporate information necessary to distribute a survey to participants, such as email address, name, or corporate location). For the avoidance of doubt, Customer Data does not include either Aggregate Data or Raw Data
Added: Energage Platform means the cloud-based Software as a Service model through which Energage provides access to its suite of products and services
Added: Subscription or Subscription Service means the licensing model in which the Customer pays a per User fee at regular intervals for access to and use of the Energage Platform
Added: Amendment Service Order means the order form that outlines changes to the specific Subscription Services ordered by the Customer
Added: Survey means the web-based Customer employee engagement survey(s) consisting of Energage’s standard survey questions and/or additional questions requested by Customer
Added: Subscription Term means the length of time set forth on a Service Order in which access to the Energage Subscription Service is provided to you
Added: Recurring Service means a service that is delivered to you on a recurring basis
Added: One-time Service means a service that is delivered to you on a one-off basis, such as a workshop or consultation
Added: Raw Data means the confidential and anonymous responses received by Energage from Customer and Customer’s employees in connection with surveys administered by Energage pursuant to this Agreement
Added: Aggregate Data means de-identified and anonymized sets of data derived from the data of multiple sources for the purpose of research and analytics. Aggregate Data does not include Personal Information or other information that could reasonably identify or relate to a natural person
Added: Personal Information means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person
Section 1.1 ENERGAGE SERVICES
Clarification: We will provide you with access to, and use of, the Energage Services.
You may order additional Subscription Services at any time by contacting Energage and requesting a Service Order. Any additional Services will be provided through a Subscription, and they will be delivered and invoiced in accordance with these General Terms and any additional terms detailed on the Service Order. If you already have a current Subscription, the additional Services will be invoiced at the prorated amount at the time those Services are added to the Subscription, and any Subscription renewal will include the additional Subscription Services at the annual rate.
Access to, and use of, the Services ordered by you will be terminated at the end of your Subscription Term.
Section 2 Fees and Payments (Applicable to Subscription Services Only)
Clarification: Section 2 has been identified as only applicable for Subscription Services purchased by a Customer, with verbiage in the section updated to reflect the differentiation.
Section 5 Intellectual Property
Title Change: Section 5 title is changed to OWNERSHIP AND USE OF ADATA; AND INTELLECTUAL PROPERTY RIGHTS.
Section 5.2 CUSTOMER INTELLECTUAL PROPERTY RIGHTS
Title Change: Section 5.2 title is changed to CUSTOMER DATA.
Clarification: You retain all ownership and Intellectual Property Rights to Customer Data. Energage does not claim ownership over any Customer Data. Energage will use Customer Data solely to perform the Services and will ensure that any Personal Information included in Customer Data is properly maintained and protected in accordance with Section 3.
Section 5.3 LICENSE FOR THE SERVICES
Title Change: Section 5.3 title is changed to AGGREGATE DATA AND RAW DATA.
Clarification As between Energage and Customer the Raw Data and Aggregate Data are and will remain the exclusive property of Energage.
(a) The Raw Data will not be provided to Customer by Energage to protect the confidentiality of Customer respondents. Customer may use Aggregate Data as described in Section 5.4;
(b) Using the Raw Data obtained from the survey results, we create de-identified and anonymized sets of data or Aggregate Data. Aggregate Data is used to provide survey results to a company with a summary or more detailed results reports. Aggregate Data may be made publicly available and may be used after termination of this Agreement provided that such Aggregate Data cannot be used directly or indirectly to identify Users or Customers. Energage will not retain, use, sell or otherwise disclose any Personal Information for any purpose other than to provide the Services contemplated by this Agreement;
(c) Aggregate Data is used to compile and score participating companies in Employer Recognition Programs. Aggregate Data is also used and disclosed to third party service providers for research and analytics purposes and other lawful business purposes including, without limitation, benchmarking, text analytics linkage analysis, attrition prediction, algorithm improvements, comment translation and the development and provision of additional services and functionality
Section 5.4 LICENSE FOR RESEARCH AND DEVELOPMENT
Title Change: Section 5.4 title is changed to LICENSE FOR THE SERVICES.
Clarification: In this Agreement, Reports means any reports, analysis, or other Aggregate Data or output generated using Energage Services.
For the Term of this Agreement, you grant Energage a worldwide, royalty free license to use, reproduce, distribute, or archive Customer Data for the purposes of providing the Services to you as contemplated by this Agreement.
Subject to the receipt of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to use any Reports which you can (and are authorized to) export through the functionality of the Services for your internal purposes only (in each case subject to any Confidentiality Notices) unless otherwise agreed upon in writing by Energage.
Section 8.1 TERM
Clarification: This Agreement begins on the date you first use the Services or sign the Service Order (whichever is earlier) and continues until you stop using the Services or your Subscription ends or otherwise terminates, or if this Agreement is terminated (whichever is earlier).
Section 8.2 TERMINATION WITHOUT CAUSE
Clarification: If this Agreement includes a Subscription, either party may terminate this Agreement to be effective at the end of the then current Subscription Term by providing the other party with written notice of termination at least 30 days prior to the end of a Subscription Term. No refunds will be provided.
Energage may terminate this Agreement for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund of any fees prepaid by you applicable to the period following the termination of this Agreement.
If your Service Order states that your Subscription will not auto-renew, then your account will terminate at the end of your current Subscription Term with no further action required by you.
Section 13.2 NORTH AMERICAN CUSTOMERS
Title Change: Section 13.2 title is changed to GOVERNING LAW AND JURISDICTION.
Clarification: This Agreement is governed by the laws of Delaware, United States of America and each party submits to the exclusive jurisdiction of the courts of Delaware, United States of America, in relation to any proceedings connected with this Agreement.
Definitions
Clarification: Aggregate Data means De-identified Data sets of data derived from the data of multiple sources for the purpose of research and analytics. Aggregate Data does not include Personal Information or other information that could reasonably identify or relate to a natural person;
Clarification: Customer Data means Customer’s proprietary data and information that Customer provides to Energage so that Energage may, as part of the Services, conduct an assessment (e.g., demographic and corporate information necessary to distribute a survey to participants, such as email address, name, or corporate location). For the avoidance of doubt, Customer Data does not include either Aggregate Data, De-identified Data or Raw Data;
Clarification: Raw Data means the confidential responses received by Energage from Customer and Customer’s employees in connection with surveys administered by Energage pursuant to this Agreement;
Added: De-identified Data means data that has had explicit identifiers about a natural person permanently removed. De-Identified Data does not include Personal Information or other information that could reasonably identify or relate to a natural person;
Section 2.2 PRICE CHANGES AND USER INCREASES
Clarification: Energage may change its fees for Subscription Services at any time. Except where you exceed the number of Users (“Quantity”) stated in a Service Order, any changes to fees will apply from the start of your next Subscription Term.
Energage reserves the right to calculate the total number of Users periodically, resulting in the following:
(a) Customer may be invoiced for additional Users added during the subscription term on a pro-rated basis for the remaining period left in the current term, with such sums being due and payable in accordance with the payment terms indicated on the then current Service Order.
(b) If Subscription Term is multi-year, Customer will be invoiced for the revised number of Users at the start of the next year.
(c) If Subscription is auto-renew, Customer will be invoiced for the then current number of Users at the start of the next Subscription Term.
Section 2.3 AUTOMATIC RENEWAL
Clarification: Your Subscription for any Recurring Services will automatically renew at the end of each Subscription Term unless you cancel the automatic renewal of the Services by notifying us at contracts@energage.com at least 30 days prior to the end of the current Subscription Term for the Services. Auto-renewing Subscriptions that are not canceled at least 30 days prior to the end of the Subscription Term will be invoiced to you automatically at a price not greater than 10% above the previous Subscription Term price for the successive Subscription Term, unless there are documented renewal price provisions noted on the original Service Order or previous Renewal Service Order.
Notice of automatic renewal will be provided at least 60 days prior to the end of each Subscription Term.
Automatic renewal does not apply to One-Time Services.
Section 2.6 TAXES
Clarification: Energage’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Energage has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Energage will invoice Customer and Customer will pay that amount unless Customer provides Energage with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Energage is solely responsible for taxes assessable against it based on its income, property and employees.
Section 2.7 MULTI-YEAR SUBSCRIPTIONS
Added: For subscriptions that are in effect for multiple years, Customer will be invoiced annually at the fees specified on the Service Order, except in the case of Quantity changes. Any increase to the number of Users and associated additional fees will be included in annual invoices. In the event Customer terminates the Agreement without cause (as defined herein) prior to the Contract End Date specified on the Service Order, Customer will be responsible for immediately paying Energage the remaining balance for the full amount of the Subscription through the Contract End Date.
Section 3.1 PRIVACY
Clarification: In the course of using the Services, you or your Users may transfer to us Customer Data containing Personal Information. You agree and consent to the use, transfer, processing, and storage of Customer Data in accordance with this Agreement.
If you or your Users are based in the European Union the United Kingdom, or Switzerland while using our Services, we will process your Personal Information as a data processor on your behalf. In this case, you will be the data controller of the Personal Information as defined in applicable data protection legislation, including Article 4(7) of the EU General Data Protection Regulation 2016/679 (GDPR).
If requested, we will execute the European Union Standard Contractual Clauses set out in Decision (EU) 2021/915 with the clauses corresponding to module two (controller to processor) selected to facilitate the transfer of Personal Information to countries outside the European Union, as well as appropriate agreements to facilitate the transfer of Personal Information to countries outside of the United Kingdom and Switzerland.
By continuing to use Services, you agree to allow Energage, and its third-party vendors to collect certain information about your Users. Please see Energage Privacy Policy (located here: https://www.energage.com/privacy/) for more information about the information collected.
Section 5.7 CUSTOMER LISTS
Clarification: Energage or an Energage Partner may identify you (by company name and logo) as related to an Employer Recognition Program. Energage or an Energage Partner may contact you as part of an Employer Recognition Program.
Should you provide Energage with a testimonial or case study or allow Energage to use your name and logo in promotional materials, written permission will be required from your authorized representative prior to Energage publishing any such material.
