Employee Listening – The Evolved Group

TERMS OF SERVICE

Effective from: September 17, 2020

PLEASE READ THESE TERMS CAREFULLY BEFORE SIGNING UP FOR OUR SERVICE

1. About these terms

These terms apply to the employee engagement software service provided through the website https://www.theevolvedgroup.com/employee-listening (Service).

The Service is provided by Evolved Insights Pty Ltd ACN 141 289 705 of Level 2, 401-405 Little Bourke Street, Melbourne 3000 Australia (referred to as we, us and our).

As part of the sign on process, you will have entered the name of your employer or other organisation as the ‘customer’. By accepting these terms: (a) you represent that you have authority to act on behalf of the customer, (b) your click to accept will bind your employer or other organisation to these terms, and (c) the word “you” in these terms will refer to the customer entity.

2. Accepting these terms creates a binding contract

By signing up for our Service, you confirm that you accept these terms of use and that you agree to comply with them. Accepting these terms creates a legally binding contract between us and you.

These terms override any terms provided by your organisation as part of the purchase (e.g. any terms referred to in a purchase order).

These terms of use also refer to our Privacy Policy (https://theevolvedgroup.com/privacy-policy) which also apply to your use of the Service.

3. Providing access to the Service

We will give your users access to the Service, subject to the rest of these terms. We will provide the Service as a hosted service. We do not give you any software to install on your own computers.

We will use reasonable efforts to always make the Service available, however we do not guarantee that our Service, or any content on it, will be available 100% or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of our Service for business and operational reasons, including for maintenance and upgrades. We will try to give you reasonable notice of any downtime, suspension or withdrawal.

We will use reasonable efforts to avoid and eliminate viruses, however we do not guarantee that our Service will be 100% secure or free from bugs or viruses. You are responsible for configuring your technology to access our Service. You should use your own virus protection software.

4. We may change the Service 

We may update and change our Service from time to time to reflect changes to our products & services, our users’ needs, regulatory requirements and our business priorities. We will try to give you reasonable notice of any major changes. We will not change the Service in a way that materially reduces functionality or features. (You can always cancel your subscription at any time – see section 9 below.)

5. Using our Service

We will give your staff access to the Service based on the following roles:

  • Account Owner – has full edit rights to the account, and authorises payment;
  • Program Admin – can add and change other users and access all data;
  • HR access – has global dashboard and reporting access;
  • Report access – has access to specific reports.

You must keep your user and account details up to date and secure.

To use the Service, your account owner or admin/s will upload the email addresses of all your employees who you wish to invite to use the Service. Your employees are not asked to be involved individually and they do not have to provide contact details. They do not need to register individually to use the Service; they just receive a link to provide feedback via the Service.

Your users can then use the Service to generate reports based on the employee feedback.

6. Restrictions on use

You agree that your users or employees will not use the Service:

  • in any way that violates any applicable federal, state, local or international law or regulation;
  • to engage in any conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm us or users of the Service or expose them to liability;
  • to upload, share or publish any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, unlawfully discriminatory, inflammatory or otherwise objectionable; or
  • in a way which violates the legal rights of others (including other staff) or contains any material that could give rise to any civil or criminal liability.

Additionally, you agree not to:

  • use our Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit our Service;
  • share non-public features or content of our Service with any third party;
  • access our Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of our Service, or to copy any ideas, features, functions or graphics of our Service;
  • use the Service in any manner that could disable, overburden, damage, or impair the Service or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service;
  • use any robot, spider or other automatic device, process or means to access the Service for any purpose, including monitoring or copying any of the material on the Service;
  • use any manual process to monitor or copy any of the material on the Service or for any other unauthorised purpose without our prior written consent;
  • use any device, software or routine that interferes with the proper working of the Service;
  • introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful;
  • attempt to gain unauthorised access to, interfere with, damage or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer or database connected to the Service;
  • attack the Service via a denial-of-service attack or a distributed denial-of-service attack; or
  • otherwise attempt to interfere with the proper working of the Service.

We may report any of the activities above to the relevant law enforcement authorities and we will cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Service will cease immediately.

If we suspect any breach of this clause, we may suspend your users’ access to our Service without advanced notice, in addition to any other remedies we may have.

7. You must keep your account details safe

If you choose, or you are provided with, a user identification code, password or any other piece of information as part of our sign-on or security procedures, you must treat such information as confidential. You must not disclose it to any third party.

You are responsible and liable for any use of our Service through your account, whether authorized or unauthorized, including any conduct which breaches these terms.

We have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion you have failed to comply with any of these terms of use.

If you know or suspect that anyone other than you knows your user identification code or password, you must promptly notify us at hello@theevolvedgroup.com

8. Charges

The fee for the Service is a monthly subscription fee for Employee Listening Standard and an annual subscription fee for Employee Listening Plus. The fee is based on the number of employees in your organisation and is payable in advance.

During the sign-on process you will be told what the fees are, and asked to enter credit card details (or, depending on the pricing option, you may be given the option to receive an invoice from us). Post the sign-on process you may add additional employees at any time by paying the additional fees.

You agree to pay the fees in advance by credit card, or, where we agree to invoice you, to pay the fees within 30 days of our invoice.

If you do not pay the fees on time we may suspend your access to the Service. If we give you notice by email and you have still not paid the fees within one week of our notice, we may terminate your account.

The fees give you access to the Service for a fixed period of time. If you want to keep using the Service, you will need to extend your access by paying our then-current fees, which are available on the Service. No refunds of fees are offered other than as required by law or specifically mentioned in these terms. If you choose to cancel the Service there is no refund of pre-paid fees.

You can increase or decrease the number of employees in your account settings. If you go above the number of employees you have paid for, you agree to pay our then-current additional fees, prorated for the remainder of the then-current subscription term. If you reduce the number of employees to a lower pricing tier, the reduction will be reflected in the fees for your next subscription term (but there is no refund for the current term).

The fees are quoted exclusive of all taxes, duties and charges. We will increase the invoiced amount to take account of any such taxes, which may include GST in Australia, VAT in the United Kingdom, sales taxes in the USA and similar taxes elsewhere.

9. Term

You may use the Service for as long as you pay the subscription fees.  The fees are billed in advance monthly for Employee Listening Standard and annually for Employee Listening Plus.  Your subscription (and fees) will automatically renew each billing period, until you cancel your subscription (or it is otherwise terminated under these terms).

Your renewal date is shown in your account settings.  If we propose to change the fees, we will give you reasonable notice (via your account settings, or email) before your next renewal date.

You may cancel your subscription at any time; however there is no refund of pre-paid fees.  We may suspend your access to the Service or cancel your subscription if you are in material breach of these terms.

10. Privacy and Data Security

As part of using the Service, your organisation’s users (and potentially your employees) may provide their personal information including name, work email address, physical address, mobile phone number and work position.

You represent and warrant that you have the consent of your organisation’s users (and employees) to disclose their personal information to us as part of using the Service, and for us to use it according to these terms.

We will collect, use and disclose personal information in accordance with our Privacy Policy in force from time to time, available at https://theevolvedgroup.com/privacy-policy. This policy describes how we comply with the Australian Privacy Act and the European Union GDPR. If you have queries about how we handle personal information please contact us at support@theevolvedgroup.com.

You acknowledge and agree that:

(a) Our Service may use cookies (a small tracking code in computer browsers) to improve your users’ experience while browsing, while also sending browsing information back to us. Your users can manage how they handle cookies in their own browser settings.

(b) Your users must not do anything to prejudice the security or privacy of our systems or the information on them.

(c) Hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using our Service, you assume such risks. While we agree to use industry standard technical and organizational security measures to transfer, store, and process your data, we cannot guarantee that your data will not be exposed or disclosed through errors or the actions of third parties.

(d) We do not warrant that we are able to backup or recover specific customer data from any period of time.

11. How you may use material on our Service

We are the owner or the licensee of all intellectual property rights in our Service, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved. The Service is made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”.

Employee Listening”, “The Evolved Group” and all related names, logos, product and service names, designs and slogans are our trade marks or the trade marks of our affiliates or licensors. You must not use such marks without our prior written permission unless they are part of material you are using as permitted under this clause. Other names, logos, product and service names, designs and slogans on this Service are the trade marks of their respective owners and are used by us under licence.

You may print off copies, and may download extracts, of any reports we provide and page(s) from our Service, as needed for you to use the Service in accordance with these terms. You must not delete or alter any copyright, trade mark or other proprietary rights notices from copies of materials from this Service.

We may use, modify, and incorporate into our products and services, license and sublicense, any feedback, comments, or suggestions on the Service that you may provide.

12. Customer Data 

As part of using the Service, your users and staff will submit data into our software (such as responses to employee surveys) (Customer Data). You retain ownership of this Customer Data.

You grant us a non-exclusive, perpetual, royalty-free worldwide licence to access, use, process, copy, distribute, perform, export, and display Customer Data: (a) to the extent necessary to provide the Service to you; and (b) for our internal business purposes including research & development and product development and improvement (provided that any personal information must be aggregated and anonymised and we must continue to comply with our Privacy Policy). To the extent that reformatting Customer Data for display in our Service constitutes a modification or derivative work, this licence also includes the right to make modifications and derivative works.

You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Customer Data to the Service and to grant the rights granted to us in these terms and (ii) Customer Data and its submission and use as you authorize in these terms will not violate (1) any laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Customer Data. Other than our express obligations under clause 10 (Privacy and Data Security), we assume no responsibility or liability for Customer Data, and you are solely responsible for Customer Data and the consequences of submitting and using it with the Service.

When your subscription ends and if requested by you within 90 days of the end date we will give you a download of your Customer Data, in the format/s generally used by us at the time. If you require a specialised format we may charge an additional fee. If you do not download your data within [one month] of us notifying you that it is available, we may delete it.

13. Confidentiality

Confidential Information means any information provided by a party or any of its employees, agents, related parties or representatives to the other party or any of its employees, agents, related parties or representatives, or otherwise obtained by that party which is marked as “proprietary” or “confidential” or similar language or which the recipient knows or reasonably should know is proprietary or confidential. Confidential Information includes: (a) our software and other intellectual property, including non-public features of the Service, and details of performance of the Service; and (b) the Customer Data.

Where a party (in this clause, recipient) receives Confidential Information from the other party (discloser), recipient must: (a) hold the discloser’s Confidential Information in strict confidence, and apply at least the standard of care used by the recipient in protecting its own Confidential Information, but not less than a reasonable standard of care; (b) not disclose such Confidential Information to any third party, except as permitted under these terms; (c) not use any Confidential Information of the discloser except as reasonably required to exercise its rights or perform its obligations under these terms (or any other contract between us); (d) immediately notify discloser of any potential, suspected or actual unauthorised use, copying or disclosure of its Confidential Information; and (e) cause its employees, subcontractors, agents and, if permitted, related companies, who require access to such Confidential Information to abide by such obligations. (We may use your Customer Data for ongoing internal business purposes as allowed in clause 12, provided that any personal information must be aggregated and anonymised and we must continue to comply with our Privacy Policy).

Recipient may use or disclose the Confidential Information to the extent necessary to comply with any law or the requirements of a regulatory body (including a stock exchange), or to obtain professional legal or accounting advice, or for use in legal proceedings regarding these terms or another contract between us.

These obligations do not apply to Confidential Information which recipient can prove: (a) is in or becomes part of the public domain other than through breach of an obligation of confidence; (b) was known to recipient at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; (c) was independently developed by recipient; or (d) is acquired from a third party who was entitled to disclose it.

The obligations in this clause continue to apply after you stop using the Service.

14. Limited Warranty

In providing the Service and related services to you, we make the following warranties:

  • Our services be provided with due care and skill;
  • Our services will be reasonably fit for the users’ purpose (that is, accessing a central portal which enables your organisation to measure employee engagement and report on it over time); and
  • Our services will be supplied at the agreed time or within a reasonable time.

You acknowledge that we don’t make any other warranties about the Service or our services, including:

  • We don’t guarantee 100% uptime or availability, or that the Service will perform error-free; and
  • We don’t make any promises about the business outcomes or benefits your organisation can achieve by using the Service.

15. Limitation of liability

You agree that our liability is limited as follows, regardless of whether arising under any indemnity, statute, breach of contract, in tort (for negligence or otherwise), or on any other basis in law or equity, to the fullest extent allowed by law.

First, we exclude liability for the following types of loss:

  • any claims or damages caused by the unauthorized use of the Service or acts of abuse or misuse by users;
  • any loss or damage caused by the interruption or loss of use of the Service or the loss or corruption of your data or files processed or stored by the Service;
  • any incidental, consequential or indirect damages, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar loss, even if we knew or should have known of the possibility of such damage or loss.

Second, we limit our liability as follows:

  • Our liability is limited, at our option, to the cost of supplying our services again or payment of the cost of having the services supplied again; and
  • Our aggregate liability for any and all claims arising in each year of your subscription is capped at the amounts you have paid us for access to the Service for that year. All claims relating to the same event must be made only in one subscription year. This cap applies to any liability to all users from your organisation.

Our liability will be reduced proportionately to the extent that your users’ acts or omissions cause or contribute to, directly or indirectly, the loss or damage for which we are liable.

We will not be liable for any delay or failure to provide the Service or our services as a result of any cause or condition beyond our reasonable control, including third party service providers such as internet connection, telecommunications, computer hosting or utilities.

Nothing in this clause affects any liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation, or other liability which cannot be excluded or limited under applicable law. Where our liability cannot be excluded, we limit our liability to the fullest extent permitted by the Australian Consumer Law.

You agree to defend, indemnify and hold us, our affiliates, licensors and service providers, and each of their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns, harmless from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable lawyers’ fees) arising out of or relating to: breach of these terms by you or your users or staff or your use of the Service, including comments or material uploaded or published by your users or staff; your (or our) use of Customer Data; your use of any information obtained from the Service and any use of the Service’s content.

16. We may amend these terms

We amend these terms from time to time by giving you notice, which may be via email, or your account with us, or in the Service itself.

17. General terms

We may assign our contract with you as part of any corporate reorganization or sale of our assets or business, provided: (a) the assignee agrees in writing to assume all our obligations under these terms, and (b) we give you written notice of the assignment.

Words like including, for example, such as or similar expressions are to be interpreted as meaning including, without limitation. These terms and any document expressly referred to in them constitutes the entire agreement between us and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between us, whether written or oral, relating to its subject matter.

These terms of use, their subject matter and their formation, are governed by the laws of Victoria, Australia. You and we both agree that the courts in Victoria will have exclusive jurisdiction.