1.1 Definitions. For purposes of this Agreement, the definitions set forth below shall be applicable:
Mentis Consulting Ltd, located at 22a St James’s Square, London, SW1Y 4JH, United Kingdom;
Mentis Human Resource Consultancy, located at Level 38, Media One Office Tower, Dubai Media City, Dubai, United Arab Emirates;
Mentis Consulting Co. Limited, located at AIA Sathorn Tower Level 10, South Sathorn Road, Yanawa, Sathorn, 10120, Bangkok, Thailand.
“Affiliate” means any entity which controls, is controlled by, or is under common control with that party, where "control" means ownership, management control, or control by agreement. Ownership of more than fifty percent (50%) of the stock or other equity interest entitled to vote for the election of directors or equivalent governing body of the entity is presumptive evidence of “control.”
“Agreed Purposes” means the provision of Services by MENTIS under Technical offer or Service Agreement.
“Agreement” shall mean this Services Agreement and any schedules annexed hereto and incorporated by reference.
“HAS” shall mean Hogan Assessment Systems, Inc., a United States based psychological test publishing and management consulting firm whose principal place of business is located at 2622 E. 21st Street, Tulsa, Oklahoma USA 74114, authors and owners of the Assessment Inventories, their associated narrative reports, the web-based assessment management System (“HALO”), all Software and Source Code as well as all proprietary, secret or confidential information pertaining thereto.
“Assessment Inventories” means HAS’s assessment tools and their associated reports as made available and described in the Project Description.
“Authorized Users” means Customer’s employees, agents, independent contractors, franchisees, or other individuals authorized by Customer to use the Assessment Inventories, web-based system, or other Deliverables or Services and who have agreed by a contract of employment or otherwise to be bound by the confidentiality obligations and other use restrictions of this Agreement.
“Confidential Information” shall have the meaning set forth in Section 7.1 below.
“Data Protection Legislation” (i) the Data Protection Act 2018 (ii) the General Data Protection Regulation ((EU) 2016/679) (GDPR) and any national implementing laws, regulations and secondary legislation, for so long as the GDPR is effective in the UK, and (ii) any successor legislation to the Data Protection Act 2018 and the GDPR.
References to “Controller”, “Data Controller”, “Processor”, “Data Processor”, “Data Subject”, “Personal Data”, “Processing” and “Appropriate Technical and Organisational Measures”: shall have the meanings as set out in the Data Protection Laws in force at the time.
“Deliverables” means the Assessment Inventories, web-based system, any other HAS deliverables as set forth in the Technical offer or Service Agreement.
“Fees” means the HAS project and service fees as set forth on Invoice or Commercial offer or Quote.
“Final Acceptance” means Customer final acceptance of MENTIS’s delivery of the Services and Deliverables based upon the Specifications and other requirements set forth in Technical offer or Service Agreement.
“Specifications” means the performance specifications and acceptance criteria set forth in the Technical offer or Service Agreement.
“Services” means all of the services described in the MENTIS’s Technical offer or Service Agreement.
“Shared Data” shall mean data of a type defined in Schedule A.
“Software” means the software code that allows the Assessment Inventories to be utilized on a computer via the Internet.
“Source Code” means the software code in its original human-readable form and language as programmed by our supplier(s) or its supplier(s) by which the licensed Software is compiled.
“Term” shall have the meaning set forth in Section 8.1 below.
“Warranty Period” shall be as set forth in the Service Agreement.
Other terms used in this Agreement are defined in the context in which they are used and have the meanings there stated.
2.1 General. MENTIS agrees to provide Customer the Services in accordance with the terms and conditions herein, Specifications, and requirements described in the Technical offer or Service Agreement..
2.2 Independent Contractor. MENTIS is an independent contractor, with the sole right to supervise, manage, control, direct, procure, perform, or cause to be performed, all necessary work, duties or obligations under this Agreement. MENTIS shall have no authority, nor shall MENTIS represent it has any authority, to assume or create any obligation, express or implied, on behalf of Customer, unless specifically provided in an Service Agreement or agreed upon in writing and signed by an officer of Customer. This Agreement shall not be construed as creating a partnership, joint venture or employment relationship between the parties or as creating any other form of legal association that would impose liability on one party for the act or failure to act of the other party.
2.3 Subcontractors. In the course of performing Services hereunder, MENTIS, in addition to its own employees, may desire or require the services and assistance of subcontractors, agents and representatives (each, a “MENTIS Entity”). Each such MENTIS Entity must agree in writing and in advance, prior to being provided access to or obtaining information, providing or being engaged to provide services, assistance materials and/or otherwise being informed or involved hereunder, to be bound by and comply with the terms and conditions that protect Customer’s Confidential Information and security to at least the same level of protection provided in this Agreement. MENTIS is responsible for ensuring compliance of MENTIS Entities, by agreement, instruction or otherwise.
3.1 Grant of License. Subject to the terms and conditions of this Agreement, MENTIS has full authority from HAS or its supplier systems and hereby grants to Customer and its Authorized Users, (i) a nonexclusive, nontransferable license during the Term to use supplier portals or HAS’s Assessment Inventories and the associated deliverables outlined in the scope of work via the Internet.
3.2 Restrictions. Customer shall not, and shall not permit an Authorized User, to decompile, reverse engineer, disassemble, or otherwise determine or attempt to determine the Source Code (or the underlying ideas, algorithms, structure or organization) of the Software.
3.3 Reservation of Rights. MENTIS expressly reserves all rights not expressly granted herein.
3.4 Customer shall possess the right to delete its data from our supplier platforms or HAS by sending a written request to MENTIS.
4.1 Title. Subject to Article 3 above, HAS and our Suppliers shall own all right, title and interest (including, without limitation, all copyrights and registrations, patents and applications, service marks, trademarks, trade secrets and other intellectual property rights) in and to the Deliverables, including HALO and any and all updates, modifications, fixes, patches, new releases, derivations, the Services, and all information, data, materials, documentation, methods and techniques related to any of the foregoing.
Assessment Inventories Sign-Off. If the Assessment Inventories, Software and/or other Deliverables do not successfully satisfy Customer review, Customer shall notify MENTIS in writing specifying in reasonable detail in what respects such Deliverables have failed to perform and/or conform to the specifications within 30 days of their delivery. MENTIS shall promptly attempt to correct any such deficiencies disclosed by Customer with HAS and shall resubmit the pertinent Deliverables to Customer until it successfully meets the specifications. In the event that MENTIS or its suppliers is unable to correct any deficiencies within thirty (30) days after notice from Customer, notice, Client has the right to terminate its Services agreement as its sole and exclusive remedy and will be entitled to a prorated refund for the remainder of its contracted subscription period. Any claims brought under this service level assurance must be made in good faith and within 5 business days after the date of the service interruption.
6.1 Fees. In consideration of the licenses granted hereunder and for the Services and Deliverables, Customer shall pay MENTIS the Fees set forth in the Invoice or Commercial offer or Quote.
6.2 Taxes. The Fees do not include local, state or federal sales, use, excise, personal property or similar taxes or levies. Further, Fees do not include any Withholding Taxes, VAT etc and such Taxes or levies are to borne by the Customer, and must be paid to the relevant Tax authorities in line with the Laws of the land. Any and all such taxes or levies paid by MENTIS (other than taxes based on net income of HAS) attributable to this Agreement shall be paid by Customer upon invoice to Customer.
7.1 Confidentiality. MENTIS recognizes that all information pertaining to this Agreement as well as any business and economic information relating to business and activities of Customer and/or its customers, franchisees, clients, suppliers and other entities with whom Customer does business, which is developed or received by MENTIS in connection with MENTIS's work, or which is otherwise disclosed to MENTIS by Customer either directly or indirectly, whether orally or in writing, is the exclusive confidential information and property of Customer (the “Confidential Information”). MENTIS agrees to maintain such Confidential Information with the same degree of confidentiality it maintains for its own information of like kind and character and not use such information other than in the course of the services to be rendered to Customer pursuant to the Agreement. MENTIS shall not disclose any such information to any person, firm or enterprise, or use (directly or indirectly) any such information for its or their own benefit or the benefit of any other party, unless authorized by Customer in writing, and even then, to limit access to and disclosure of such confidential information to MENTIS’s employees, agents, or representatives on a “need to know” basis only. MENTIS shall not duplicate or use any technical information or results of the work performed for any purpose other than for performing the Services specified herein without first entering into a separate written agreement with Customer authorizing the same.
7.2 Exceptions. The foregoing obligations shall not apply to information or results which: (a) were in the public domain prior to MENTIS's receipt of the same hereunder, or which subsequently become part of the public domain by publication or otherwise, except by MENTIS's wrongful act; or (b) MENTIS can show were developed by MENTIS and were in its lawful possession prior to its receipt of the same hereunder and were not acquired directly or indirectly from Customer; or (c) MENTIS can show were rightfully received by it from a third party who did not acquire the same directly or indirectly from Customer and who did not require MENTIS to maintain the same in confidence. Specific technical information disclosed by Customer pursuant to the Agreement or discovered in connection with MENTIS's work for Customer shall not be deemed to fall within any of the above exclusions merely because it is embraced by more general information within one of said exclusions.
7.3 Required Disclosure. In the event that MENTIS or any of its representatives, subsidiaries and Affiliates or their or MENTIS’s employees or agents become legally compelled (by deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information or comply with or take any action resulting from any legal or regulatory order or action related to the contract, MENTIS shall provide Customer with prompt prior written notice of such requirement so that Customer may seek a protective order or other appropriate remedy, or waive compliance with the terms of the Agreement.
7.4 Irreparable Harm. MENTIS acknowledges and agrees that, money damages will be impossible to calculate and may not adequately compensate Customer in connection with an actual or threatened breach by MENTIS of any of the foregoing obligations with respect to the Confidential Information of Customer. Customer shall be entitled to pursue any other available remedies at law or equity, including the recovery of money damages, with respect to the actual or threatened breach of the foregoing obligations with respect to the Confidential Information of Customer.
7.5 Security. MENTIS and its officers, employees and agents shall at all times comply with all reasonable security standards, practices, and procedures which Customer may establish or require from time-to-time, with respect to information and materials which come into HAS’s possession or control and to which MENTIS gains. Such information and materials may include, without limitation, all Customer Confidential Information, data, processes, software, program documentation, systems, systems output, system software, and equipment.
8.1 Term. This Agreement shall begin on the Effective Date and continue for a period as long as the Customer uses our services or as specified in a Service Agreement (the “Term”).
8.2 Termination for Convenience. Customer may deliver to MENTIS written notice of its decision to terminate its Services with or without cause upon thirty (30) days prior written notice, and any such termination shall be effective on the 31st day after receipt of such notice. In the event of such termination, Customer shall be responsible for all Fees for work performed through the date of such termination.
8.3 Termination for Breach. In the event of the material default or failure by either party under this Agreement (except for failure to pay fees), the non-performing party shall have thirty (30) days after receipt of written notice from the other party, detailing the nature of such material default or failure, to cure such default or failure, and if not corrected within the said period, the notifying party shall have the right, at its option, to terminate this Agreement.
8.4 Termination for Insolvency. Either party may terminate an Service Agreement by providing written notice to the other party if either party ceases to function as a going concern, becomes insolvent, makes an assignment for the benefit of creditors, files a petition in bankruptcy, permits a petition in bankruptcy to be filed against it and such petition is not dismissed within (60) days of filing, or admits in writing its inability to pay its debts as they mature, or if a receiver is appointed for a substantial part of its assets.
9.1 Representations and Warranties. MENTIS represents and warrants to Customer that: (a) it has the authority and right to license and perform the Services and provide Deliverables in accordance with Scope of Work, free of all liens, claims, security interests and/or other encumbrances, restrictions or claims of others of every kind and description; (b) all Services and Deliverables rendered and/or provided under the Scope of work will be created, performed and/or delivered in a competent and professional manner by qualified personnel with a degree of care observed by national firms performing the same or similar services; (c) neither the performance nor furnishing of Services by HAS or our suppliers under this Agreement will infringe upon or violate the rights of any party or any applicable law or regulation, administrative or judicial order of any governmental or judicial authority having jurisdiction over the subject matter of this Agreement; (d) the Project Description if applicable shall faithfully and accurately reflect the Services and Deliverables provided to Customer hereunder.
9.2 Initial Warranty. MENTIS represents and warrants to Customer that during the Warranty Period, the Software and Services will conform to the requirements set forth in this Agreement and, without limiting any other remedy provided herein or otherwise available at law or in equity, MENTIS, at its own cost and expense, will re-perform or re-deliver or, at Customer’s option, grant a credit for, any nonconforming Services or Deliverables during the Warranty Period, except to the extent that MENTIS can demonstrate the nonconformity was caused by errors on the part of Customer(in which case re-performance or re-delivery will be at Customer’s expense).
9.3 DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 9.1 AND 9.2 ABOVE, HAS AND MENTIS SPECIFICALLY DISCLAIMS ALL WARRANTIES FOR ITS SERVICES AND DELIVERABLES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, UNINTERRUPTED SERVICE OR FITNESS FOR A PARTICULAR PURPOSE.
10.1 Where either party is acting as a data controller it shall comply with the Data Protection Legislation.
10.2 Customer warrants that it has complied with the Data Protection Legislation and that it is permitted to share the Shared Data with MENTIS.
10.3 To the extent that MENTIS Processes Shared Data on behalf of Customer as a Data Processor, such processing by MENTIS shall be:
10.3.1 provided solely for the duration and purposes of performing its obligation under this Agreement; and
10.3.2 in relation to details relating to Customer’s employees and business (such as job title, name, contact number and email address).
10.4 Where MENTIS Processes Personal Data as a Data Processor on behalf of Customer or its affiliate as a Data Controller, MENTIS shall:
10.4.1 process that Personal Data only on the written instructions of the Customer unless MENTIS is required by the laws of any member of the European Union or by the laws of the European Union applicable to MENTIS to process Personal Data (Applicable Laws). Where MENTIS is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, MENTIS shall promptly notify Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit MENTIS from so notifying Customer;
10.4.2 ensure that it has in place Appropriate Technical and Organisational Measures, reviewed and approved by Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
10.4.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
10.4.4 not transfer any Personal Data outside of the European Economic Area unless the prior written consent of Customer has been obtained and the following conditions are fulfilled:
(a) Customer or MENTIS has provided appropriate safeguards in relation to the transfer;
(b) the Data Subject has enforceable rights and effective legal remedies;
(c) Customer complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) MENTIS complies with reasonable instructions notified to it in advance by Customer with respect to the processing of the Personal Data;
10.4.5 assist Customer, at Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
10.4.6 notify Customer without undue delay on becoming aware of a Personal Data breach; and
10.4.7 maintain complete and accurate records and information to demonstrate its compliance with this clause 10 and allow for audits by Customer or Customer's designated auditor.
10.5 You acknowledge that Mentis uses sub-contracted services providers to enable some aspects of the Services including report generations, tracking, analysis, features or any deliverables.
10.6 At the date of termination of this Agreement MENTIS acknowledges and agrees that it shall at Customer’s choice either delete or return the Personal Data which is in its possession and which it has received from Customer pursuant to this Agreement, save to the extent that it is permitted or required by law to retain such Personal Data or with agreement from Customer.
11.1 Indemnities. Subject to clause 12.1 MENTIS shall defend, indemnify and hold harmless Customer, its Affiliates, and their respective officers, directors, employees, agents, and representatives, from and against any and all claims, demands, causes of action, losses, damages and/or other expenses (including, without limitation, attorney's fees and expenses), relating to (i) injury, illness or death, or loss of or damage to property arising out of or resulting from MENTIS's or its employees' or contractors' fault, negligence and/or willful misconduct, other than such claims, demands, causes of action, losses, damages or other liability which are proven to have been caused by the sole negligence and/or willful misconduct of Customer or Customer's employees, (ii) any breach of any of MENTIS’s representations, warranties, or obligations hereunder, or (iii) any claim or allegation that the Deliverables or Services provided to Customer infringe or misappropriate any patent, copyright, trademark, service mark, trade secret, mask work, invention or other intellectual property or proprietary right of any third party. Subject to clause 12.1, Customer shall indemnify and hold MENTIS and HAS harmless from and against all claims, suits, demands, actions and proceedings, judgments, penalties, damages, costs and expenses (including legal fees and costs), losses or liabilities of any kind which may arise or result from the use of HAS’s or MENTIS’s products, Services or Deliverables in connection with this Agreement and in conjunction with Customer’s hiring practices.
11.2 Indemnification Conditions. Customer will promptly notify MENTIS in writing of any third party claim, provided the failure or delay to do so shall affect MENTIS’s indemnification obligations only to the extent that MENTIS is prejudiced by such failure or delay. MENTIS shall have the exclusive right to conduct the defense of any such claim or action and make any settlement or compromise as long as such settlement shall not include a financial obligation or admission of liability on behalf of Customer. Customer agrees to cooperate with MENTIS to provide copies of any documents or materials reasonably requested by MENTIS in support of its defense hereunder.
12.1. Nothing in this agreement shall limit or exclude the liability of either party for:
a) Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
b) Fraud or fraudulent misrepresentation or wilful misconduct.
c) Any matter in respect of which it would be unlawful to exclude or restrict liability.
12.2 LIMITATION OF LIABILITY. SUBJECT TO CLAUSE 12.1, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF DATA, LOSS OF BUSINESS OR OTHER LOSS (INCLUDING SUBSTITUTION OF SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY THIRD PARTY SERVICES DELIVERED IN CONNECTION HEREWITH EVEN IF PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF ITS NEGLIGENCE OR OTHER FAULT AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY.
12.3 Subject to clause 12.1, neither party’s liability to the other in respect of any other loss or damage arising under or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in any circumstances exceed £100,000.
13.1 Assignment of Agreement. Neither party shall assign its rights or duties under this Agreement without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement, in whole or in part, to an entity acquiring all or substantially all of its assets or business or to an Affiliate. This Agreement shall inure to the benefit of the authorized successors and permitted assigns of the parties.
13.2 Governing Law. This Agreement shall be governed by the laws of the country where Mentis is established the without giving effect to the principles there of relating to conflicts of law.
13.3 Force Majeure. Neither party hereto shall be in breach or default of any provision of this Agreement by reason of its delay or failure to meet any of its obligations hereunder (except failure to pays sums due) due to any event, circumstance, or cause beyond its control such as, but not limited to, acts of God, strikes, lock-outs, general governmental orders or restrictions, war, threat of war, hostilities, revolution, riots, epidemics, fire, earthquake, or flood. The performance of this Agreement shall then be suspended for as long as any such event shall prevent the affected party from performing its obligations hereunder.
13.4 Invalidity; Waivers. If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable, then such provision shall be construed as being enforceable to the extent allowed thereunder. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
13.5 Survival of Terms. All provisions which must survive in order to give effect to their intent and meaning shall survive termination or expiration of this Agreement.
13.6 Paragraph Headings. Paragraph headings used herein are for convenience only and are not intended as an aid in interpretation.
13.7 Severability/Inconsistency. If any part of this Agreement is held invalid, illegal or unenforceable, the remaining provisions will be unimpaired. In the event of any ambiguity or inconsistency between the descriptions, terms and conditions of this Agreement and the provisions of any Exhibits hereunder, the ambiguity or inconsistency, but only to the extent of such ambiguity or inconsistency, shall be resolved by looking first to the provisions of this Agreement, and if not resolved therein, then to the provisions contained in the applicable Exhibits hereto.
13.8 Counterparts. This Agreement may be executed in two (2) counterparts, each of which shall be considered one and the same agreement, and shall become effective when one counterpart is signed by each party and delivered to the other party hereto.
13.9 No Other Beneficiaries. Except as otherwise specified in this Agreement, the parties do not intend, nor shall any provision of this Agreement be interpreted to create in any third party, any obligations to, or right or benefit by, such third party under this Agreement from either HAS or Customer.
Mentis may enter into a written subscription agreement, license agreement, services agreement or similar agreement executed by an officer of Mentis with certain Clients (each a "Service Agreement"). If there is a conflict between these Terms and Conditions and the Service Agreement, the applicable Service Agreement will control.