Opusuna is a Coherence and Team Fit assessment provider and consulting firm that has created and developed certain products and services, such as Opusuna Tech, Team Analysis, True Analytics of Team Chemistry and Team Dynamics, Handbooks and Playbooks which include but are not limited to Coherence and Team Fit assessments and related reporting, consulting and services. You (“Client”) are an Opusuna customer that desires to purchase Opusuna results, products and/or services. Opusuna provides the products and/or services to Clients subject to these Terms of Service. By accepting such products and/or services, Client agrees to these Terms of Service.
In the event you are a business organization, as opposed to an individual, and have or desire to enter into a separate fully executed written master agreement such as (e.g., Master Services Agreement, Master Professional Services Agreement, Consulting Services Agreement, etc.) for you to utilize multiple products and services within your organization to perform numerous assessments or screening for your prospective employees, any conflict between that agreement and these Terms of Service shall be resolved in favor of such agreement. However, to the extent such agreement does not address access to and use as described herein, these Terms of Service shall apply to such access and use.
Whenever used in these Terms of Service, the following capitalized terms shall have the meaning set forth below:
“Assessments” shall collectively refer to Opusuna’s current and any newly created assessments of any kind, their gauges, measurements and derivations, in any variations of such assessments.
“Authorized Users” shall mean those persons who are authorized by Opusuna to have access to Opusuna’s On-line Assessment Tool or any of the subsequent Opusuna’s Analytics. Authorized Users must be current bona fide officers, executives, employees or staff of a Client, employee candidates or prospective employees referred to by a Client, or any individuals who desire to utilize and purchase the products and services offered by Opusuna and have been informed of, and agree to abide by, these Terms and Conditions.
“Client” shall mean a Opusuna Client, who is an entity, business or individual, that has requested Opusna results, products or services from Opusuna or has been granted access to Opusuna’s On-line Assessment Tool and to the Products and by using the same has accepted and agreed to these Terms of Service.
“Confidential Information” shall mean any and all information, answers to or data provided by the Client or Authorized User during the processing and completion of Opusuna On-line Assessment Tool or Product. Confidential Information shall not include any information or any portion of the Confidential Information which a party can clearly demonstrate falls within any of the following categories: (i) Confidential Information that, as of the time of disclosure, was already known to the non-disclosing party without obligation of confidentiality, as demonstrated by appropriate documentary evidence antedating the relationship between the Parties; (ii) Confidential Information obtained after the Effective Date by the non-disclosing Party from a third party which is lawfully in possession of such information and not in violation of any contractual or legal obligation to the disclosing party with respect to such information; or (iii) Confidential Information which is or becomes part of the public domain through no fault of the non-disclosing party or its employees or agents.
“Custom Services” shall mean all services agreed to and/or performed by Opusuna at Client’s request including, but not limited to, all processing, consulting, research and technology services, and shall be pursuant to a separate agreement entered into in writing between Opusuna and Client subject to the terms and conditions thereof and these Terms of Service.
“Deliverables” shall mean those items containing Work Product developed and delivered by Opusuna to Client in any form or manner.
“Intellectual Property” shall mean all intellectual property rights throughout the world, including copyrights, patents, mask works, rights of publicity, internet domain names, trademarks, trade secrets, authors’ rights, rights of attribution, goodwill, design, rights relating to innovation, know how, moral rights, and other proprietary rights and all applications and rights to apply for registration or protection of such rights subsisting in the Tools and Materials.
“Materials” shall mean all documents and other materials relating to the Tools, including without limitation, all copyrightable works of (Opusuna), as well as all copies of such works in whatever medium fixed or embodied including without limitation questions, stories and scenarios, answer forms, technical manuals, and Reports provided to Client by Opusuna under this Agreement.
“Products” as used herein includes but it not limited to Assessments, Tools, Reports, and Materials as defined herein.
“Reports” shall mean any and all documents created or developed from or related to Ousuna’s On-line Assessment Tool including but not limited to the raw data, analytics, processes, conclusions, graphs and narrative text generated by the Assessments and shall include but not be limited to any and all reports used for individual and/or group selection and development or organizational development.
“Opusuna’s On-line Assessment Tool” shall mean the internet-based website and testing platform, or any derivative thereof or successor thereto, available from Opusuna on the World Wide Web including all Products and features offered via such platform. Certain Products under these Terms and Conditions may be delivered from other platforms. These Terms and Conditions are equally applicable to those Products.
“Opusuna Intellectual Property” shall mean any and all intellectual property and other rights of Opusuna of any kind or nature, including, without limitation, any: (i) copyrights, trademarks, trade names, domain names, designs and patents, and goodwill associated with trademarks, trade names, domain names, designs, and patents; (ii) ideas, know-how, approaches, methodologies, concepts, skills, techniques and process; (iii) moral rights, author’s rights, and rights of publicity; and (iv) other industrial, proprietary and intellectual property-related rights anywhere in the world, that exist as of the Effective Date or hereafter come into existence, and all renewals and extensions of the foregoing, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation, irrespective of whether possessed by Opusuna prior to, or acquired, developed or refined by Opusuna under this Agreement, excepting any personal information and data owned by the Client or User.
“Opusuna Tech and Team Analysis” shall mean any one of Opusuna’s on-line system(s) operated by or on behalf of Opusuna that incorporates the development, administration, scoring or ranking, user management, and report analysis for the Assessments resulting from the use of Opusuna’s On-line Assessment Tool.
“Tools” shall mean all Opusuna products supplied to Client under this Agreement, including but not limited to the Assessments.
“Work Product” shall mean all information, documents and copyrightable material and other tangible and intangible materials authored and delivered by Opusuna in connection with the Services and included within the Deliverables intended by the parties at the time of creation to be considered a “work made for hire” under copyright laws of the United States of America, but excluding any Opusuna Intellectual Property. In addition, notwithstanding anything to the contrary contained herein, Work Product shall not include any Opusuna Intellectual Property embodied or subsisting in any of the following, existing as of the Effective Date or that hereafter come into existence: (i) all tools, inventories, scales, assessments, characteristics, composites, systems, algorithms, scoring keys, individual or collective assessment items/questions; (ii) any and all documents and other materials relating to any of the Opusuna Intellectual Property; (iii) any related reports created by Opusuna; or (iv) any trademarks, service marks, insignia, symbols, or decorative designs, trade names, domain names, and other symbols and devices associated with Opusuna and Opusuna’s products and services.
II. Products and Services and Governing Agreement
Opusuna agrees to provide products and services as requested by Client, which include but are not limited to Products and Custom Services as defined in these Terms of Service. Such products and services and the deliverables produced from them are specifically contingent on active participation and compliance of any and all requests by Opusuna to the Client, Individual or the User referred to Opusuna by the Client.
Fees. As consideration for the Services to be performed by Opusuna and for rights granted/assigned herein, Client agrees to pay Opusuna the amounts requested at the time that services are rendered or access is granted to the Opusuna’s On-line Assessment Tool. (“Fees”).
Expenses. If the services rendered by Opusuna is ongoing to an entity or business Client with a pre-negotiated invoicing arrangement, unless specifically agreed to as a separate reimbursable expense item, the Fees shall include all sums due and owing including but not limited to telephone calls and special services such as typing, duplicating costs and mailing/shipping expenses.
Invoicing and Payment. If the services rendered by Opusuna is ongoing to an entity or business Client with a pre-negotiated invoicing arrangement, unless otherwise specified in any written agreement between Opusuna and Client, any and all invoices are to be submitted monthly by Opusuna subject to these Terms of Service and are due and payable to Opusuna within thirty (30) days of the date of invoice. If part of an invoice is disputed, Client shall pay the undisputed portion of such invoice within the payment terms set out in these Terms of Service.
Disputed Fees. If Client believes there are errors or discrepancies with respect to any amounts due Opusuna pursuant to these Terms of Service, Client agrees to give Opusuna written notice thereof within twenty-one (21) days from the date that the Services which gave rise to the alleged discrepancy were performed. Upon receipt of such notice, the parties will in good faith attempt to resolve the issue by employing the Dispute Resolution Process set out in these Terms of Service.
Delinquent Payments. Interest will be assessed on all delinquent payments at the rate of 1.5% per month (or the maximum amount allowed by law) together with any court costs, attorney’s fees, and any other costs of collection Opusuna may incur to collect delinquent payments. Opusuna reserves the right to terminate Client’s ordering and web access privileges in the event payments become more than sixty (60) days past due or from Client’s multiple failure to pay invoices in a timely fashion. Reinstatement of a suspended account requires Client to pay past due balances in full, pay any applicable outstanding fees, place a credit card authorization on file, and pay any applicable web access activation fees.
IV. Ownership of Work Product and Deliverables
The parties agree that all Deliverables and Work Product contained therein shall become the property of Client upon delivery thereof by Opusuna, acceptance by Client, and full and complete payment by Client of all associated fees for such Deliverables and/or Work Product. Except as otherwise expressly provided in these Terms of Service or in any written agreement, no rights, title or interest to any Opusuna Intellectual Property is given to Client; all such rights are hereby reserved by Opusuna. Opusuna further reserves the right to use any data (other than personally identifiable information received from Client) supplied by Client and/or generated by Opusuna in connection with the Products and/or Custom Services. If, by operation of the law of any jurisdiction, or otherwise, Client or any third party claiming by or through Client is deemed to or appears to own any property rights in any Opusuna Intellectual Property (other than the Work Product expressly assigned to Client), Client hereby assigns all right, title and interest in such property rights to Opusuna, and Client shall, at Opusuna’s request, execute any and all documents necessary to confirm or otherwise establish Opusuna’s rights therein.
The parties hereto may exchange certain Confidential Information as defined herein for the purpose of implementing the provision of Products or Custom Services. The disclosing party shall retain all rights to its Confidential Information. The receiving party shall take such reasonable measures to prevent the unauthorized disclosure to third parties of Confidential Information as it would take to prevent disclosure of its own Confidential Information. Disclosure will be limited to such employees and agents as necessary to effectuate the provision of Products and/or Custom Services. To the extent practicable, Confidential Information protected by these Terms of Service shall be marked “Confidential.” Except as necessary for proper evaluation, documents obtained pursuant to these Terms of Service may not be duplicated in any manner without the written permission of the disclosing party; all Confidential Information exchanged pursuant to these Terms of Service must be returned to the disclosing party upon request. Opusuna will not disclose any Confidential Information to any individual or entity unless such disclosure is required by law enforcement with written authorization to receive such information or a court of competent jurisdiction. Opusuna agrees to provide access to reports and information generated by Opusuna that include Confidential Information only to its Client. Upon Client’s request, Opusuna shall deliver all items containing any Confidential Information to Client or make such other disposition thereof as Client may direct. Disclosure of Confidential Information to Opusuna by Client shall not constitute any option, grant or license to Opusuna under any patent or other rights now or hereinafter held by Client, its subsidiaries, or any of its affiliated companies.
VI. Web Access
Access. Subject to Client’s strict compliance with Opusuna’s internet technical specifications as may be hereafter amended from time to time, Opusuna shall provide Client with a non-transferable and non-exclusive access to use its internet based website and assessment platform known as Opusuna’s On-line Assessment Tool (or any other applicable platform provided by or developed by Opusuna) for its intended purpose of administration and management of Opusuna’s products and services. The granting of this access is active upon issuance by Opusuna of a Opusuna’s On-line Assessment Tool authorized user login ID and Client’s acceptance of the terms and conditions of use in this Section, Web Access. In the event Opusuna provides Client with access to Opusuna’s On-line Assessment Tool, Client shall be responsible, at its sole cost and expense, to comply with all requirements related to the same under this Agreement.
Termination of Access. Opusuna reserves the sole right to suspend or to terminate Client’s Opusuna’s On-line Assessment Tool access should Client fail to meet any of its obligations under these Terms of Service or the Opusuna’s On-line Assessment Tool terms and conditions of use, or if, at Opusuna’s sole discretion, Client is deemed to act in a manner inconsistent with the intent and/or proper use of Opusuna’s On-line Assessment Tool.
Authorized Users. Authorized Users are those persons who are authorized by Opusuna to have access to Opusuna’s On-line Assessment Tool. Authorized Users must be current bona fide officers, executives, employees or staff of a Client, employee candidates or prospective employees referred to by a Client, or any individual who desires to utilize and purchase the products and services offered by Opusuna and have been informed of, and agree to abide by, these Terms and Conditions. When provided by Opusuna, Client shall only assign each Opusuna’s On-line Assessment Tool participant user login ID to a single participant. Participant user login IDs and reports are valid for a period of seven (7) days from the time of creation on Opusuna’s On-line Assessment Tool or issuance directly from Opusuna. Opusuna’s reserves the sole option to deleted or suspend Participant’s user login ID(s) upon termination of this Agreement. Client and its Authorized User(s) hereby acknowledge the entire contents of Opusuna’s On-line Assessment Tool and the Products and other material available through Opusuna’s On-line Assessment Tool are protected by copyright. All products, services, assessments, reference works, databases and content available on Opusuna’s On-line Assessment Tool shall be deemed included within the definition of Products under this Section.
Billing. Client agrees to accept billing for all applicable charges for Products available through Opusuna’s On-line Assessment Tool, including but not limited to account activation, products, materials, and report generation or associated rescore fees, at the time of order, together with any applicable taxes.
Proper Use. Client agrees to use Opusuna’s On-line Assessment Tool and the Products with professional competence and in a manner consistent with their intended use. Client’s use of Opusuna’s On-line Assessment Tool and the Products for human resource and pre-employment screening implies that Client has full and current knowledge of the Equal Employment Opportunity Commission (EEOC) Uniform Guidelines on Employee Selection Procedures and employment law, or other regulations or laws governed under Client’s jurisdiction. Client also agrees that any Products Client purchases from Opusuna will be used by it or under its direct supervision in a manner consistent with all professional, ethical, and regulatory guidelines and standards.
Unauthorized Use and Access. Client agrees to take diligent and reasonable steps to keep the Products and all Intellectual Property subsisting therein confidential and free from unauthorized access or use, and not to divulge, provide, or make the products available to a third person, unless said person is under Client’s direct professional supervision. Further, Client may not assign, convey, sublicense, or otherwise transfer these Terms of Service or any right, license, or privilege to the Products to another party. Client further agrees not to copy, duplicate, download, or otherwise disseminate the Products without the explicit written permission of Opusuna. Client further agrees not to modify or alter the physical or electronic characteristics of Opusuna’s On-line Assessment Tool or any aspect of the Opusuna’s On-line Assessment Tool electronic environment, and to not be party to any attempt to dismantle, reverse engineer, or electronically intrude into Opusuna’s On-line Assessment Tool or the Products.
Reports Accessible to Client and End-Beneficiary. Provided Client’s Opusuna On-line Assessment Tool account is in good standing and Client possesses a valid user login ID(s) to access Opusuna’s On-line Assessment Tool, Client owns the rights to copies of previously paid for participant reports stored with Opusuna. In instances where Client is not the end-beneficiary of the assessment data, the end-beneficiary as determined by Opusuna, may reserve the right to access and use assessment responses and specific Work Product (excluding individual participant reports) developed by Opusuna and intended for exclusive use by the end-beneficiary. Unless specified otherwise by Client, the end-beneficiary, unless it is an individual who has purchased their own report for their own personal use, shall have no access, right, title, or interest to individual participant reports previously purchased by Client and retained by Opusuna.
VII. Data Security and Compliance with Applicable Laws
Data Security. Opusuna shall keep in place such technical and organizational measures to protect against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure of or access to Client’s Confidential Information sufficient to comply with the mandatory requirements of applicable data protection laws and in accordance with the highest standards and best practices prevailing in the industry.
Compliance with Applicable Laws. Opusuna shall comply with all statutes, ordinances, and regulations of all federal, state, county, and municipal or local governments, and of any and all of the departments and bureaus thereof, applicable to the carrying on of its business.
Client’s Indemnity. Client shall Indemnify Opusuna, its shareholders, directors, affiliates, officers, employees, personnel and representatives, against any and all liability, claims, demands, damages, losses and expenses of any kind, including attorneys’ fees, (i) brought by any third party in connection with or arising out of Client’s use of the Products, Services and/or Custom Services for purposes, including but not limited to individual or group selection and development, assessment, promotion and/or organizational development; (ii) Client’s breach of the representations, warranties, agreements or obligations of Client under these Terms of Service; (iii) any act or omission of Client, or Client’s employees, agents or contractors that negatively affects Opusuna and its reputation.
IX. LIMITED WARRANTY AND LIMITATION OF LIABILITY
Limited Warranty. OPUSUNA EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO WARRANTY IS GIVEN THAT THE OPERATION OF ANY TOOL OR SOFTWARE SHALL BE UNINTERRUPTED OR ERROR FREE.
Limitation of Liability. Except with respect to claims regarding violation of proprietary rights, breach of confidentiality, or damages resulting from intentional or willful misconduct or gross negligence, neither party shall be liable to the other for punitive, incidental, special, indirect, exemplary, multiplied or consequential damages arising out of or relating to these Terms of Service whether in contract, negligence, gross negligence, tort or any other legal theory. UNDER NO CIRCUMSTANCES, OPUSUNA’S TOTAL LIABILITY SHALL NOT EXCEED THE AMOUNT OF MONEY PAID TO IT BY THE CLIENT.
No Waiver. The failure of either party to exercise any right or remedy provided for herein shall not be deemed a waiver of any right or remedy hereunder. No waiver by any party of any breach of any provisions hereof shall constitute a waiver unless made in writing signed by the party. Either party’s waiver of any breach or failure to enforce any of the Terms of Service at any time shall not in any way affect, limit or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition thereof.
Governing Law and Jurisdiction. The rights and obligations of the parties to these Terms of Service shall be governed by and construed in accordance with, the laws of the State of Florida, and the United States of America, without regard to the conflict of laws principles thereof. Jurisdiction and venue for any claims arising hereunder shall be Palm Beach County, and the parties hereby waive personal jurisdiction in and any objections to that venue. The parties shall not raise in connection with, and hereby waive, any defenses based upon the venue, the inconvenience of the forum, the lack of personal jurisdiction, the sufficiency of service of process or the like in any such action or suit brought in the State of Florida.
Remedies; Counsel Fees. Except as otherwise set forth herein, the rights and remedies of the parties set forth in these Terms of Service are not exclusive and are in addition to any other rights and remedies available to it at law or in equity. In the event of any legal action or similar proceeding between the parties with respect to any of the provisions of these Terms of Service, the prevailing party will be entitled to receive from the other party reasonable attorney’s fees, costs and expenses incurred in connection with the action or proceeding, regardless of whether judgment is obtained.
Entire Agreement. Each Party acknowledges that these Terms of Service, including any Statements of Work incorporating these Terms of Service by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and merges all previous proposals, negotiations, representations, commitments, writings, understandings, agreements, and all other communications, both oral and written, between the parties and prevails over any inconsistent terms and conditions contained or referred to in any purchase order or other instrument that may at any time arise between or be given by either party in respect of the subject matter. The acknowledgment or acceptance of a purchase order or other such instrument containing conditions at variance with these Terms of Service shall not be inferred as modifying these Terms of Service. The parties are entering into these Terms of Service based solely on the representations and warranties herein and not based on any promises, representations, and/or warranties not found herein. Notwithstanding the foregoing, these Terms of Service may be amended from time to time by Opusuna.