TERMS AND CONDITIONS OF SERVICES
These Terms and Conditions shall apply to the supply of services rendered by Goldstar Education Ltd. (“Goldstar”) to the Customer, and shall supersede any other documentation or communication between the Goldstar and the Customer.
Capitalized terms not otherwise defined in these Terms and Conditions of Service shall be defined as follows:
“Assessed Company” means the entity subject to the Services, any may be different from the Customer.
“Claims” means any claim, demand, liability, damage, loss, suit, action, investigation, proceeding or cause of action between Goldstar and the Customer or between either Party and a third party, and all related costs and expenses, including without limitation, legal fees and expenses.
“Customer” means the Customer identified on the Website or in a Proposal.
“Data Protection Laws” means any law, rule, regulation, decree, statute, or other enactment, order, mandate or resolution, applicable to Goldstar or Customer, relating to data security, data protection and/or privacy, including without limitation, the Canadian Personal Information Protection and Electronic Documents Act (“PIPEDA”), the US Health Insurance Portability and Accountability Act (“HIPAA”), Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
“Data Subject” is a natural person who can be identified, directly or indirectly, in particular by referencing 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.
“De-Identified Data” means data that contains no Personally Identifiable Information.
“Fees” shall be the fees payable by Customer to Goldstar for the Services, as set forth on the Website or in a Customer-approved Proposal
“Intellectual Property Right” means any right, title or interest that is or may be granted or recognized under any UK or foreign legislation regarding patents, copyrights, moral rights, trade-marks, trade names, service marks, industrial designs, mask work, integrated circuit topography, privacy, publicity, celebrity and personality rights and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing.
“Party” shall mean each party to the Proposal and “Parties” shall mean both parties to the Proposal.
“Personal Data” means any information relating to a Data Subject, including Personally Identifiable Information.
“Personal Data Breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data, whether transmitted, stored, or otherwise Processed.
“Personally Identifiable Information” means information that can be used to distinguish or trace an individual’s identity, such as a name, date and place of birth. Government issued identification number or tax identification number.
“Processing” means any operation or set of operations that is performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction. “Process” and “Processed” will have a corresponding meaning.
“Proposal” means the proposal issued by Goldstar to Customer, setting forth the details of the Services and the pricing therefor. If a Proposal has been issued and accepted by the Customer, its terms shall supersede the terms hereof.
“Services” means any the services provided or performed by Goldstar as selected on the Website by Customer or pursuant to a Proposal accepted by Customer.
“Survey Administrator” means the individual designated by the Customer to onboard the Customer and Assessed Company (if different from the Customer), and administer the Services on behalf of the Customer.
“Website” means the Goldstar website at www.goldstared.com
“Transfer” means to disclose or otherwise make the Personal Data available to a third party (including to any affiliate or sub-processor of Goldstar), either by physical movement of the Personal Data to such third party or by enabling access to the Personal Data by other means.
2.1 Services by Goldstar. Goldstar shall take all steps necessary to commence in and perform the Services on the applicable start date in accordance with the timing set forth on the Website or in a Customer-approved Proposal. Goldstar shall perform the Services and provide the corresponding deliverables in accordance with these Terms and Conditions, which shall become binding upon execution by each of the parties hereto and shall be incorporated herein by reference.
2.2 Responsibilities of Customers. Customer shall (and shall ensure that the Assessed Company shall) cooperate with Goldstar as reasonably necessary for Goldstar’s performance of the Services. Moreover, Customer understands that the Services are time-sensitive and shall ensure that it and/or the Assessed Company respond to Goldstar’s requests (including the completion of the intake forms or surveys) in a timely manner. Customer understands and agrees that while Goldstar will send reminders to the Survey Administrator; it is the Customer’s responsibility to ensure timely responses to requests. Failure to provide the requested information to Goldstar within the allotted time will result in additional fees being charged to Customer, (up to twice the amount listed on the Website or in the applicable Proposal), to cover Goldstar’s additional expenses. Furthermore, Customer understand that unless all invited team members of the Assessed Company fully participate in any given survey sent by Goldstar, the results may not be accurate and Goldstar shall have no responsibility regarding such erroneous or inaccurate results.
2.3 Submission of Deliverables. The deliverables, including any reports prepared as part of the Services, shall be sent to Customer Contact Email Address first provided by the Customer at the time of payment or indicated on the applicable Proposal.
3. CANCELATION POLICY
3.1 Customer agrees to provide Goldstar with ten (10) business days' prior notice of its intention to delay, extend or cancel a scheduled Service. If Customer provides less than ten (10) business days' notice for delaying, extending or cancelling a Service, Goldstar may invoice and Customer shall pay for up to fifty percent (50%) of the Fees or forty (40) hours of consulting services for each consultant whose work is so delayed, extended or cancelled, whichever is less.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 Rights to Work Product. Goldstar owns all Intellectual Property Rights in the “Work Product”. For purposes of these Terms and Conditions of Service, “Work Product” shall mean all deliverables, documents or other tangible items, including any inventions, innovations, improvements, other works of authorship, and other derivative works that arise therefrom and Intellectual Property therein or related thereto, conceived, developed or provided by Goldstar in the course or as a result of performing the Services, including from time to time third party Intellectual Property.
4.2 Rights Granted to Customers. Customer is hereby granted a limited, perpetual license to use, copy or modify the Work Products for its own internal purposes.
4.3 Customer Materials. All Intellectual Property Rights to all property, data (including source data), information, equipment, servers, systems, supplies and materials provided by the Customer or Assessed Company (the “Customer Materials”) shall remain at all times vested in the Customer or Assessed Company, as applicable, and nothing contained herein shall be deemed in any way to transfer any ownership or other interest therein to Goldstar.
4.4 Rights Granted by Customers. Customer hereby grants to Goldstar a non-exclusive, limited, fully paid license to use and/or access the Customer Materials for the sole purpose of performing Services. All rights not expressly granted to Goldstar hereunder are expressly reserved to the Customer. Customer accepts sole responsibility at all times and in all circumstances for the accuracy and adequacy of the Customer Materials of whatever origin and their instructions, procedures, and the results obtained from them.
4.5 Use of De-identified Data. Notwithstanding anything to the contrary contained herein, the Customer hereby grants to Goldstar a perpetual, irrevocable, royalty-free license to use the Customer’s (or Assessed Company’s, as the case may be) De-identified Data for purposes of research, marketing, product development or for any other legitimate business purpose, provided, however, that such information shall be fully anonymized and not retraceable to Customer or Assessed Company or any personnel of Customer or Assessed Company. Customer understands and agrees that these activities may include combining the Customer’s De-identified Data with third party data.
4.6 Assessed Company Different From Customer. If the Assessed Company is different from the Customer, the Customer hereby represents and warrants that it has all of the necessary approvals required from the Assessed Company and agrees to indemnify Goldstar against any claim brought the Assessed Company in the event of breach of these Terms and Conditions by Customer.
5. PAYMENT TERMS
5.1 Fees. All Fees payable by Customer to Goldstar shall be based on the type and scope of the Services, as set forth on the Website or in the Customer-approved Proposal. All Fees must be paid prior to the start of Service.
5.2 Taxes. Customer shall pay all sales, use, excise, import or export, value added, withholding or other taxes, duties or fees which are levied or imposed by reason of the Services, exclusive only of taxes on the income of Goldstar.
5.3 Late Payment. All amounts due hereunder that are not paid within thirty (30) days of the due date shall bear interest at the rate of one point five percent (1.5%) per month (18.5% per annum), or at the highest rate allowed by law, whichever is less, from the date due until paid.
5.4 Currency. Unless otherwise indicated, all references to currency shall be references to the lawful currency of the United Kingdom.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Services Warranty. Goldstar warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner. In the event that any of the Services do not comply with the foregoing warranty, Goldstar will reperform such Services at no cost to Customer within fifteen (15) days of Customer notifying Goldstar of such noncompliance.
6.2 Limitation of Warranty. THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, ARISING OUT OF A COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS OR ADEQUACY FOR A PARTICULAR PURPOSE OR USE, QUALITY, PRODUCTIVENESS, CAPACITY, OR THAT THE OPERATION OF ANY SERVICES OR DELIVERABLES WILL BE ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER.
7. LIMITATION OF LIABILITY.
7.1 EXCEPT WITH RESPECT TO A BREACH OF CONFIDENTIALITY AND/OR IN CONNECTION GROSS NEGLIGENCE OR WILFUL MISCONDUCT, UNDER NO CIRCUMSTANCES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SET FORTH HEREIN, WILL GOLDSTAR, ITS AFFILIATES, OR ANY OF THEIR PERSONNEL EVER BE LIABLE HEREUNDER FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES WERE OTHERWISE FORESEEABLE AND REGARDLESS OF THE THEORY OF LIABILITY. EXCEPT WITH RESPECT TO A BREACH OF THE CONFIDENTIALITLY OBLIGATIONS SET FORTH HEREIN AND/OR IN CONNECTION GROSS NEGLIGENCE OR WILFUL MISCONDUCT, THE MAXIMUM LIABILITY OF GOLDSTAR HEREUNDER SHALL BE THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES.
8.1 Each party (the “Receiving Party”) acknowledges that it may have access to information that is confidential to the other party (the “Disclosing Party”) or its third party suppliers or customers, including, but not be limited to, products designs, developmental work, terms and pricing and all other information clearly identified as Confidential by the Disclosing Party in writing at the time of disclosure or that a reasonable person would consider from the nature of the information or circumstances of disclosure to be confidential and/or proprietary (“Confidential Information”). The Receiving Party agrees to hold all Confidential Information disclosed hereunder to it in confidence and to use at least the same degree of care, but no less than reasonable care, to prevent any unauthorized disclosure of such Confidential Information that it uses to protect its own confidential information. The Receiving Party shall use such Confidential Information solely for the purposes of this Agreement. The Receiving Party agrees not to disclose or divulge any such Confidential Information to anyone except its employees, representatives and other contractors who have a need to know same. The foregoing obligations shall not apply to any Confidential Information which the Receiving Party can show: (a) is, or becomes, available within the public domain through no fault of the Receiving Party; (b) is already in the possession of the Receiving Party at the time of receiving the same without obligations of confidence; (c) is independently developed by the Receiving Party without any breach of this Agreement; (d) is received by the Receiving Party from a third party without restriction on its disclosure or use; or (e) is required to be disclosed by law. This Section shall survive termination of the Agreement.
9. TERM AND TERMINATION
9.1 Term. The Services and these Terms and Conditions shall commence in accordance with the timing set forth on the Website or as of the date set forth in the applicable Customer-approved Proposal and, unless terminated as provided below, shall continue until the completion of the Services.
9.2 Termination for Breach. Either Party may terminate the Services and these Terms and Conditions thirty (30) days after such Party’s Notice of a material breach of an obligation under these Terms and Conditions provided that such breach is not cured within such thirty (30) day period.
9.3 Obligations of Parties Upon Termination. Termination of the Services and these Terms and Conditions shall not relieve either Party of any obligation accrued prior to the termination date.
9.4 Survival. In the event of the expiration or termination of the Services and these Terms and Conditions, those provisions whose nature, meaning or intent indicate an expectation of survival shall survive.
10. PRIVACY AND DATA PROTECTION.
10.1 Scope of Process. Goldstar shall only Process or Transfer Personal Data as authorized by Customer and only as necessary to perform Services pursuant to the Agreement.
10.2 General Obligations. Goldstar in its capacity as a processor or sub-processor of Personal Data, will:
a. process or Transfer the Personal Data only on written instructions from Customer, unless required to do so pursuant to laws or regulations to which Goldstar is subject. In such case, to the extent legally possible, Goldstar will inform Customer of the necessity of such Processing or Transfer;
b. restrict access to Personal Data to those authorized persons who need such information to provide services pursuant to the Agreement and ensure such authorized persons are obligated to maintain the confidentiality of any Personal Data;
c. implement, using all measures required in accordance with good industry practice, technical and organizational measures to ensure the security of the Personal Data Processed pursuant to these Terms and Conditions. Such measures shall also be in compliance with all applicable Data Protection Laws;
d. not engage another entity to Process the Personal Data unless approved in writing by Customer;
e. taking into account the nature of the Processing, insofar as possible, implement and maintain appropriate technical and organizational measures needed to enable Customer to respond to requests from Data Subjects to access, correct, transmit, limit Processing or delete any relevant Personal Data held by Goldstar;
f. retain Personal Data received from Customer only for so long as may be required in connection with the Services or otherwise required under applicable law.
g. at the choice of Customer, without undue delay, delete or return all the Personal Data to Customer after the end of the provision of services relating to Processing, and delete existing copies unless any applicable law requires storage of Personal Data;
10.3 Audit. Once per calendar year, to the extent required by applicable law, Goldstar shall make available to Customer all information necessary, and allow for and contribute to audits, including inspections, conducted by Customer or another auditor mandated by Customer, to demonstrate compliance with applicable Data Protection Laws. For clarity, such audits or inspections are limited to Goldstar’s Processing Personal Data only, not any other aspect of their business or information systems. Customer will provide Goldstar with written notice at least sixty (60) days in advance of such audit or inspection. Such written notice will specify the things, people, places or documents to be made available. Such written notice, and anything produced in response thereto (including any derivative work products), will be considered Confidential Information and will remain Confidential Information in perpetuity or the longest time allowable by applicable law after termination of the Services and these Terms and Conditions. Customer acknowledges and agrees that it will be solely responsible for all costs incurred in relation to such any audit or inspection.
10.4 Cooperation with Customer. At Customer’s cost, Goldstar shall assist Customer in connection with Customer’s requests related to data security, Personal Data Breach, data protection impact assessments, and shall engage in consultation with supervisory authorities for the fulfilment of Customer’s obligation to respond to requests pursuant to applicable Data Protection Laws.
10.5 Cooperation with Supervisory Authority. Upon request issued by supervisory authority for records regarding Personal Data, Goldstar shall, at Customer’s cost, cooperate to provide the supervisory authority with records related to Processing activities performed on Customer’s behalf, including information on the categories of Personal Data Processed and the purposes of the Processing, the use of service providers with respect to such Processing, any data disclosures or transfers to third parties and general description of technical and organizational measures to protect the security of such data.
10.6 Breach Notification. Upon becoming aware of Personal Data Breach, Goldstar will notify Customer without undue delay the nature of the breach; the number and categories of Data Subjects and Personal Data affected; and the name and contact details for the relevant contact person at Goldstar’s office.
10.7 Transfer of Personal Data; Appointment. Customer authorizes Goldstar to transfer, store or Process Personal Data in the UK, Canada or any other country in which the Goldstar maintains facilities. Customer appoints Goldstar to perform any such transfer of Personal Data to any such country and to store and Process Personal Data in order to provide the Services. Goldstar will conduct all such activity in compliance with these Terms and Condition of Service, all applicable laws and Customer’s instructions.
10.8 Assistance with Third Party Claims. Where Customer faces an actual or potential claim arising out of or related to violation of any Data Protection Laws concerning the services, service Provider will promptly provide all materials and information requested by Customer that is relevant to the defense of such claim and the underlying circumstances concerning the claim.
11.1 Notice. Any Notice required or permitted under these Terms and Conditions of Service shall be deemed valid and to have been duly given when: (i) delivered by hand with written confirmation of receipt; (ii) sent by facsimile with written confirmation of receipt; or (iii) delivered by a nationally recognized overnight delivery service with package tracking (“Notice”). The addresses and recipients for Notice shall be as provided on the Website or as set forth in the Customer-approved Proposal.
11.2 Entire Agreement. These Terms and Conditions of Service represents the entire understanding of the Parties with respect to the subject matter hereof. These Terms and Conditions of Service supersede and replace in its entirety any and all other prior and contemporaneous agreements and understandings, whether oral, written or implied, if any, between the Parties with respect to the subject matter hereof. There are no oral or written collateral representations, agreements or understandings except as provided herein.
11.3 Governing Law and Jurisdiction. These Terms and Conditions of Service shall be governed and construed in accordance with the laws of England without regard to its conflicts of laws principles. The Parties agree that jurisdiction and venue in the courts of London, England is appropriate, and that any legal proceedings shall be brought in London.
11.4 Non-Solicitation of Employees. During the term of these Terms and Conditions and for a period of one (1) year thereafter, Customer may not, directly or indirectly solicit for employment, offer employment to, employ or engage as a consultant any individual who either is then employed or was employed within the preceding three (3) months by Goldstar (“Employing Entity”) unless and until the hiring entity obtains the written consent of the Employing Entity. Notwithstanding the foregoing, this Section shall not prohibit Customer from hiring any individual who responds to a general, non-targeted solicitation, such as a job posting in a mass publication or on a website.