CONFIDENTIALSEARCH.COM

CLIENT ENGAGEMENT TERMS

At Confidential Search, our global presence is not just a footprint; it’s a responsibility ingrained in our vision. Ethical conduct is at the heart of our operations, driving us to uphold the highest standards of integrity in all aspects of our work. Guided by our core values, we cultivate a culture of collaboration and respect, both internally and in our interactions with partners and clients.

We are dedicated to nurturing and rewarding talent, ensuring that every member of our team has the opportunity to thrive and grow. Through innovative programs and initiatives, we continuously strive to improve our practices and contribute positively to the communities we serve.

Moreover, environmental stewardship is a cornerstone of our commitment to sustainability. We actively seek ways to minimize our environmental impact and promote responsible practices that safeguard our planet for future generations. At Confidential Search, we believe that by acting responsibly and ethically, we can make a meaningful difference in the world around us.

CLIENT ENGAGEMENT TERMS

 Client Engagement Form.  These General Terms and Conditions apply to any order placed via a Client Engagement Form (“CEF”) executed by both Parties identified on the CEF.  The CEF, these General Terms and Conditions, and Product/Service Specific Terms and Conditions applicable to products and services ordered under a CEF (the “Services”) collectively constitute the “Agreement”.  Any changes to the Services must be agreed to in writing by both Parties as documented in a change order (“Change Orders”).

a. Placing of Additional Orders.  The CEF details the Services being purchased at the time the Parties execute the CEF.  Unless otherwise stated on the CEF, Client may place written orders for additional quantities of the Services during the Term (as defined below).  The Parties must sign a separate CEF or other agreement for any service outside the scope of the CEF.

b. Nothing in the Agreement obligates Client to place, or Confidential Search to accept, any additional orders. Upon Confidential Search’s written confirmation of its receipt and acceptance of the order, the order will be binding and non-cancellable and non-refundable, and Confidential Search will invoice Client for such Services.  Any orders will be governed by the Agreement.

2. Professional Fees and Expenses.

a. Confidential Search will invoice Client for, and Client will pay, the fees in the applicable CEF (“Fees”).  Client will reimburse Confidential Search for all engagement-related direct out-of-pocket expenses, including candidate and consultant travel, accommodation and meals, courier, shipping and reproduction (collectively “Expenses”) incurred in delivering the Services.  Unless otherwise set forth in the CEF, Fees will be invoiced upon execution of the CEF and Expenses will be invoiced as incurred.  All Fees are non-contingent, non-transferable, and non-refundable unless specifically stated otherwise in the CEF.  Invoices are due upon Client’s receipt of the invoice. Unless otherwise required by law, Confidential Search will assess a service charge of one and a half percent (1.5%) per month for past due amounts.  Invoices not objected to in writing within thirty (30) days of Client’s receipt will be deemed approved.

b. Client will pay all reasonable attorneys’ fees and court costs Confidential Search incurs in collecting undisputed Fees and Expenses.

c. All Fees and Expenses will be invoiced and paid in the local currency of Confidential Search or Confidential Search’s Affiliate providing Services, or other mutually agreed upon currency, as identified on the CEF.

d. If Client’s internal policies require that a Purchase Order number appear on invoices, Client must provide the Purchase Order Number with or immediately after signing the CEF. If a Purchase Order Number is required on an invoice, the requirement and number must be indicated on the CEF.  If Client has not provided a Purchase Order Number within 10 business days of signature, Client will accelerate payment of any invoices delayed by Client’s failure to provide a Purchase Order Number by the same number of days as the delay.

e. If Client does not consume all of the products or Services listed in the CEF prior to termination or expiration of the Agreement, then Confidential Search will issue an invoice for the unused items following the effective date of termination or expiration of the Agreement.

 Taxes.

a. Client will be responsible for all applicable taxes (excluding taxes imposed on Confidential Search’s net income) imposed by any taxing authority, whether designated as value-added (VAT), goods and services (GST), sales, use, or other similar taxes (“Transaction Taxes”), now in effect or hereafter imposed, resulting from the Fees. If Client is exempt from Transaction Taxes, Client must inform Confidential Search of its exemption and provide to Confidential Search complete and proper documentation evidencing the exemption.

b. If Client is required by applicable law to deduct or withhold taxes from any payment due to Confidential Search, Client will: (i) withhold the legally required amount from payment; (ii) remit the withheld tax to the applicable taxing authority; and (iii) promptly deliver to Confidential Search original documentation or a certified copy evidencing remittance of withheld tax.  If Client does not provide evidence of payment of withheld taxes, Client will reimburse Confidential Search for the tax withheld from payment to Confidential Search.  Client will comply with all applicable income tax treaties and protocols in determining the amount of tax to withhold.

4. Term and Termination.

a. The Agreement begins on the Start Date and ends on the CEF End Date unless otherwise terminated under this Section 4 (“Term”). Client is obligated to pay for Services rendered and any other Fees and Expenses that accrue up to and including the date of termination, including any Fees that are non-contingent, non-cancellable or non-refundable.  Either Party may terminate the Agreement immediately if: (a) a Party is in breach, the non-breaching Party has provided the breaching Party with a written notice and the breaching Party has failed to cure the breach within thirty (30) days of its receipt of notice; or (b) the other Party enters into bankruptcy proceedings, becomes insolvent, or there is an appointment of a receiver for the benefit of creditors, or cessation of business.  To the extent a COF does not have an End Date, the Services set forth in the COF will be subject to price renegotiation after one year.

b. Upon termination for any reason or expiration of this Agreement all licenses provided hereunder automatically terminate. Client must promptly cease use, and destroy all existing copies, of the Confidential Search Material and the Derivatives (if applicable).  Client may retain one copy of the Derivatives (if applicable) for archival purposes only. Client may also retain those Derivatives that are a part of Client’s personnel files to maintain employee history.  No other use of the Confidential Search Material or Derivatives after termination of this Agreement is permitted.

c. Notwithstanding anything to the contrary in the Agreement, if during a renewal term Confidential Search is no longer making the applicable Service(s) commercially available, Confidential Search may provide 120-days’ notice of its intent to discontinue such Service(s). In the event such notice is given, Confidential Search will refund or issue a credit to Client a pro-rated portion of any prepaid unused fees for the discontinued Service(s). Any such Credits may be applied towards any Confidential Search Product or Service(s) and must be used during the Term. The Parties must sign a Change Order or new CEF for any Products or Service(s) outside the scope of the CEF.

5. Method of Performing Services; Responsibilities.  Confidential Search will perform the Services in a competent and professional manner and in accordance with generally acceptable industry standards.  Confidential Search may remove and replace any Confidential Search Employee performing the Services; any Confidential Search Employee removed will be replaced by a Confidential Search Employee of comparable training and experience.  Client will notify Confidential Search in writing if Client determines, in compliance with all applicable laws, that a Confidential Search Employee is not appropriate for the Services based on the Confidential Search Employee’s skills, experience, or performance.  Confidential Search will make a good faith determination whether replacement of the Confidential Search Employee is reasonably required and commercially feasible.  Confidential Search’s good faith determination will be final and binding on Client.  “Confidential Search Employee” means a Confidential Searchemployee, agent or independent contractor who is providing the Services.  Client will timely provide Confidential Search with the documentation, information, access to its personnel and cooperation Confidential Search reasonably requires to provide the Services.  The Services are not intended as a substitute for professional judgment.  Client will not use the Services, New Materials, or Confidential Search Materials as the sole source for any decision relating to any of its employees or candidates, including reprimand, termination, compensation, employment status or work opportunities.

Representations and Warranties.

a. Each Party represents and warrants that: (i) it is duly organized, validly existing  and in good standing under the laws of the jurisdiction of its incorporation or organization, and has full power and authority to perform all of its obligations under the Agreement; and (ii) the person executing the Agreement on its behalf is duly authorized and empowered to bind the Party to the Agreement.

b. Client further represents and warrants that: (i) where Client provides Personal Data to Confidential Search, Client has provided the required notices and obtained all necessary rights and consents to provide to Confidential Search an individual’s Personal Data, for the purposes stated in the Agreement; and (ii) the collection of Personal Data by Confidential Search at Client’s direction through customization of relevant Services does not violate any applicable laws or any third party rights. “Personal Data” means any information that Confidential Search has access to, obtains, uses, maintains or otherwise handles in connection with the performance of the Services that identifies an individual or relates to an identifiable individual.

c. EXCEPT AS PROVIDED IN THE AGREEMENT, CONFIDENTIAL SEARCH DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7.  Intellectual Property.

a.  Client retains ownership of all materials, and the intellectual property rights in those materials, provided to Confidential Search by or on behalf of Client (“Client Materials”).  Subject to Section 7.b. and upon payment in full of Confidential Search’s Fees, Client will also own copies of reports and analyses Confidential Search delivers to Client under the Agreement (“New Materials”).  Client may use the New Materials in the form provided for its internal purposes only; Client may not use the New Materials for any other purpose or permit any other person, firm or entity to use the New Materials.

b. The performance of the Services and creation of the New Materials will require the use of Confidential Search Materials. “Confidential Search Materials” include methodologies, preexisting programs, instruments, models, proprietary information, patents, registered and unregistered trademarks, trade names, trade secrets, copyrights, prototypes, inventions, algorithms, designs, compilations, computer software programs, tools, databases, evaluation guides, report forms, scoring guides, scoring algorithms, scoring instructions, scoring software and norms.  Confidential Search Materials include both Confidential Search’s preexisting intellectual property and any modifications, derivatives or improvements it makes thereto, and any intellectual property it creates independently of its performance under this Agreement.  Confidential Search may customize, modify, translate, or expand Confidential Search Materials to apply to Client’s unique requirements (collectively, a “Customization”).  Any Customization will be Confidential Search Materials exclusive of any Client Materials included therein.  Confidential Search owns Confidential Search Materials at all times, and reserves all rights not expressly granted under the Agreement.  Except as set forth in applicable Product/Service Specific Terms, the Agreement will not be construed as a license to copy, modify, create derivative works from, publish, disclose or otherwise use Confidential Search Materials. Client will not download, copy, publish, disclose, create derivative works of, disassemble, decompile or otherwise attempt to reverse engineer Confidential Search Materials, nor will Client permit any other person to do so.  Client will be liable for all violations of these restrictions by its employees, subcontractors, or agents.

c. If a Customization includes Client Materials, Client grants to Confidential Search a non-exclusive, limited, non-transferable license to use the Client Materials solely to provide the Services in connection with the Customization. Client represents and warrants that it has all the necessary rights to include the Client Materials in the Customization.

8. Confidential Information.

a. One Party (“Discloser”) may disclose Confidential Information to the other Party (“Recipient”) in connection with the Agreement.  “Confidential Information” means all oral or written information concerning the Discloser, including the Discloser’s business and business activities (past, present and future), financial information, technical information, customer information, intellectual property, methodologies, strategies, plans, documents, drawings, designs, tools, models, inventions, and patent disclosures, whether or not marked or identified as “confidential,” that may be obtained from any source as a result of the Agreement Confidential Information does not include information, technical data, or know-how that: (i) is or becomes a matter of public knowledge through no fault of Recipient; (ii) was lawfully in Recipient’s possession or known by Recipient prior to its receipt from Discloser; (iii) was rightfully disclosed to Recipient by another person without restriction; (iv) Recipient independently develops without use of Discloser’s Confidential Information; or (v) Discloser approves in writing for release.

b. Recipient will not use any Discloser Confidential Information for any purpose other than to perform its obligations under the Agreement.  Recipient will not disclose any Discloser Confidential Information to third parties or to its employees, other than employees or third parties who are required to have the Confidential Information to perform obligations under the Agreement and who are bound by confidentiality terms substantially similar to those in this Section 8.  Recipient and Discloser will each be responsible for any breach of the Agreement by its representatives.  Recipient will protect Confidential Information from disclosure to others using the same degree of care it uses to protect its own confidential information, but in any case no less than a commercially reasonable degree of care. Any permitted reproduction of Confidential Information will contain all confidential or proprietary legends that appear on the original.   If Recipient is required by law, regulations, or court order to disclose any of Discloser’s Confidential Information, Recipient, where legally allowed, will promptly notify Discloser in writing prior to making any disclosure.  Discloser may, at its sole expense, seek a protective order or other appropriate remedy from the proper authority. If no protective order or other remedy is obtained, or Discloser waives compliance with this Agreement, Recipient will furnish only the legally required portion of Confidential Information and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information to the extent possible.

c. Services may include coaching services (“Coaching Services”) for specific individual(s) (each a “Coachee”).  Confidential Search and the Coachee must have open and frank communications for the Coaching Services to be effective.  Communications between Confidential Search and a Coachee will be, so far as is reasonably possible, confidential.  Korn Ferry will not be asked or allowed to disclose information provided to Confidential Search in confidence by a Coachee, except information which Confidential Search in good faith believes is in one of the following categories: (i) information that the Coachee or some other person is, has, or may become engaged in illegal activity; (ii) information that the Coachee or some other person  is, has, or may become a danger or health and safety risk to himself or herself or third persons; (iii) information that the Coachee authorizes Confidential Search to release; (iv) information that generally informs Client of the scope, nature and timing of any activity, the goals in the development and coaching plan for the Coaching Services, or the progress being made in attaining the established goals or as otherwise required in connection with the engagement; or (v) information that may have a material or adverse effect on Client, the Confidential Search coach or Confidential Search.  Confidential Search and the Confidential Search coach may obtain information from the Coachee’s supervisors, co-workers and other persons concerning the Coachee’s work performance.  This information, including the identity of any person providing the information, is and will remain so far as is reasonably possible confidential and neither Client nor the Coachee will have access to this information.  The Coachee will be advised of these coaching rules prior to participating in the coaching assignment.  If any information arising from the Coaching Services is required to be disclosed by any subpoena or other court order, under any applicable law or regulation, Confidential Search will be entitled to make any required disclosure. Confidential Search will undertake to notify Client or the Coachee prior to disclosing the Confidential Information, unless prohibited by the terms of the order or legal requirement.

d. Nothing in the Agreement prohibits, or is intended in any manner to prohibit, Recipient from reporting possible violations of law or regulations to any governmental agency or entity or making other disclosures that are protected under the whistleblower provisions of applicable law or regulations.  Recipient does not need Discloser’s prior authorization to make any protected reports or disclosures; nor is Recipient required to notify Discloser that protected reports or disclosures have been made.  Without limiting the foregoing, nothing in the Agreement is intended to interfere with or restrain the immunity provided under applicable whistleblower laws for confidential disclosures of trade secrets to government officials or lawyers, solely to report or investigate a suspected violation of law or included in a sealed filing in court or other proceeding.

e. Upon Discloser’s written request, Recipient will destroy Discloser’s Confidential Information in its possession, but Recipient may: (i) retain copies of Confidential Information that it is required to retain by law or regulation; (ii) retain copies of Confidential Information to resolve disputes that have arisen under this Agreement; and (iii) store copies made as part of routine back up of its information technology systems but the Confidential Information Recipient retains must continue to be handled in accordance with this Section 8.

Personal Data.

a. Confidential Search will not disclose to Client an individual’s item level responses to assessments and surveys or composite components and intermediate data points (e.g., intermediate numeric scores, ratings, evaluation guides, integration grids, or interview/simulation notes), including Personal Data, that Confidential Search collects in providing the Services, and upon which the New Materials and/or Services will be based (the “Raw Data”).  Confidential Search will use Raw Data to provide the Services as specified in the Agreement or as otherwise instructed and permitted by Client. The Parties agree that the Services include archiving the Raw Data and using de-identified and aggregated Raw Data for research, studies, development, benchmarking, statistics, analytics, and to develop, improve, and enhance Confidential Search’s products and services.  Any published end product will not identify, or include any results attributable to, Client or a specific individual. 

b. Where Confidential Search processes Personal Data as a data processor, or equivalent under applicable data protection law, on Client’s behalf in its performance of the Services, the Privacy and Data Protection Terms Exhibit A will apply.  Where the Parties process Personal Data as independent data controllers, or equivalent under applicable data protection law, the Parties will comply with applicable law and maintain adequate security controls relevant to the Personal Data processed.

10. Security. Having regard to the available technology, cost of its implementation, the nature, scope, context and purposes of the Personal Data processing, and taking into account the harm that might result from accidental loss, destruction, disclosure or damage of Personal Data, Confidential Search will implement appropriate technical and organizational measures designed to prevent any accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Personal Data.

11. Indemnification.

a. By Client.  Client will indemnify and defend Confidential Search, its parent, Affiliates, and their respective directors, officers, partners, employees, shareholders and agents and their respective successors and permitted assigns, from and against all third party suits, claims, actions, and proceedings and all related liabilities, losses, judgments, damages, costs and expenses (including interest, penalties, fines, legal fees and other litigation expenses) that are or are alleged to arise from: (i) Client’s decision to take any employment action with regard to any individual identified, evaluated, assessed, or coached by Confidential Search; (ii) Confidential Search’s use of Client Materials in accordance with the Agreement; or (iii) Client’s breach of its representations and warranties.

b. By Confidential Search. Confidential Search will indemnify and defend Client, its parent, Affiliates, and their respective directors, officers, partners, employees, shareholders and agents and their respective successors and permitted assigns, from and against all third party suits, claims, actions, and proceedings and all related liabilities, losses, judgments, damages, costs and expenses (including interest, penalties, fines, legal fees and other litigation expenses) that are or are alleged to arise from: (i) Confidential Search’s gross negligence, willful misconduct, or fraud; (ii) Confidential Search’s breach of its representations and warranties; or (iii) intellectual property infringement.  Confidential Search has no obligation regarding any infringement claim based upon services or materials which are modified, combined, operated, or used with any product, data, apparatus, software, or program not provided by Confidential Search or authorized by Confidential Search in writing, or which are a result of Client’s design specifications.  If an infringement claim is made relating to the New Materials, Confidential Search Materials, or Services (the “Infringing Content”), in addition to its indemnification obligations under this Section 11.b., and at no additional cost to Client, Confidential Search will: (w) procure for Client the right to continue to use the Infringing Content; (x) replace the Infringing Content with non-infringing materials; (y) modify the Infringing Content to make it non-infringing; or (z) terminate the Agreement and refund all pre-paid amounts paid by Client for which Client has not received Services.

c. Indemnification Process.  The Party seeking indemnification will provide detailed written notice to the indemnifying Party promptly after learning of the third party claim; the indemnified Party’s failure to do so promptly will not relieve the indemnifying Party of its indemnification obligations except to the extent the indemnifying Party is materially prejudiced by any delay in this notice.  The indemnifying Party may assume control of the defense and settlement of the claim, and the indemnified Party will provide reasonable assistance at the indemnifying Party’s reasonable expense, but the indemnifying Party may not agree to any settlement or consent to any final judgment without the prior written consent of the indemnified Party if (a) the indemnified Party is required to admit liability, undertake any obligation or pay any amount other than amounts concurrently reimbursed by the indemnifying Party, (b) the settlement or judgment does not fully release the indemnified Party of all liability, or (c) the indemnified Party’s rights in its own property are negatively affected.

12. Limitations of Liability.  NEITHER PARTY WILL BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES OF ANY TYPE, INCLUDING LOST PROFITS OR BUSINESS INTERRUPTION, RELATING TO THE AGREEMENT.  KORN FERRY’S MAXIMUM TOTAL LIABILITY FOR ANY CLAIMS RELATING TO THE AGREEMENT IS LIMITED TO THE FEES PAID OR PAYABLE BY CLIENT TO KORN FERRY UNDER THE COF GIVING RISE TO THE LIABILITY.  THIS SECTION 12 APPLIES REGARDLESS OF THE LEGAL THEORY ASSERTED AND EVEN IF THE PARTY KNOWS THAT THESE DAMAGES MIGHT OCCUR.

13. Informal Dispute Resolution.  If a dispute related to the Agreement arises between the Parties (“Dispute”), either Party may provide written notice of the Dispute to the other Party.  The Parties will work in good faith to resolve the Dispute.  If the Dispute involves an invoice, Client will pay the non-disputed portions of the invoice in accordance with Section 2.

14. Relationship of the Parties.  Confidential Search is at all times an independent contractor.  Confidential Search Employees remain in Confidential Search’s employ and will not be deemed Client’s agents or employees.  Neither Party is authorized to bind or commit the other Party in any respect or to accept legal process on the other Party’s behalf.  Neither Party will be liable to any agent, subcontractor, supplier, employee, or customer of the other Party for any commission, compensation, remuneration, or similar benefit of any nature whatsoever.  The Agreement is not intended to, and does not, create or impose any fiduciary relationship between the Parties. Confidential Search is not providing legal advice under this Agreement.

15. Subprocessing.  Client consents to, and authorizes Confidential Search’s use of subprocessors, including Confidential Search Affiliates, in connection with the provision of the Services.  Processing activities may include accessing, storing, handling or otherwise using Personal Data Confidential Search remains responsible for the work and activities of its subprocessors to the same extent Confidential Search would be liable if performing the Services. Confidential Search is responsible for all payments to its subprocessors.  Confidential Search has entered into a written agreement with subprocessors containing equivalent data protection obligations as in the Agreement.  Client will be deemed to have approved changes to subprocessors where Confidential Search notifies Client via the subscription service and no written objection is received from Client within fifteen (15) days of written notification.  If Client objects (on commercially reasonable grounds) in writing within fifteen (15) days of written notification, Confidential Search may cease to provide or Client may agree not to use, on a temporary or on-going basis, the particular Service that would involve the use of the new subprocessor. Suspension of Services or partial termination by either Party subject to this Section 15 will not be deemed a breach of the Agreement.

CLIENT ENGAGEMENT TERMS

Assignment; Subcontracting.  Neither Party may sell, assign, or transfer the Agreement without the other Party’s written consent, but no consent is required if the assignment: (a) results from the assignor’s merger, consolidation, spin-off, split-off or acquisition but the assignment must be limited to the assignor’s survivor, subsidiary or successor; or (b) is to an Affiliate capable of performing the assignor’s duties and obligations under the Agreement.  Subject to the foregoing, the Agreement will inure to the benefit of and will be binding upon Confidential Search, Client, and their respective successors and permitted assigns.  Confidential Search will not subcontract the performance of Services without Client’s prior authorization.  This provision applies to subcontractors engaged specifically to provide Services for Client.

17. Governing Law. The Agreement will in all respects be governed by and construed in accordance with the laws of the State of California, excluding any choice of law provisions and without effect to principles of conflicts of law, regardless of the place of making or performance. Where the Parties agree in writing to a different governing law, the mutually agreed upon jurisdiction will prevail in the event of a conflict with these General Terms and Conditions. Notwithstanding anything in the Agreement to the contrary, nothing in the Agreement requires to do any act or refrain from doing any act which would result in Confidential Search violating (or becoming subject to any penalty under) any laws to which it is subject.  The Parties disclaim the applicability of the United Nations’ Convention on the International Sale of Goods.

18. Notices.  Any notice either Party is required or permitted to give under the Agreement must be in writing and will be deemed to have been received when personally delivered, twenty-four (24) hours after it has been sent via overnight express courier, or seventy-two (72) hours after it has been deposited in the United States Mail, registered or certified, postage pre-paid, properly addressed to the Party to whom it is intended at the address set forth on the CEF or any other addresses that either Party may hereafter designate in writing.  For Confidential Search, all notices to be sent to: Confidential Search.

19. Non Waiver. A Party’s failure at any time to enforce any of the provisions of, or any right or remedy available to it under, the Agreement or at law or in equity, or to exercise any option provided, will not constitute a waiver of that provision, right, remedy or option or in any way affect the validity of the Agreement.  A Party’s waiver of any default by either Party will not be deemed a continuing waiver, but will apply solely to the instance to which that waiver is directed.

20. Severability; Interpretation. Every provision of the Agreement will be construed, to the extent possible, to be valid and enforceable.  If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, that provision will be deemed severed from the Agreement, and all other provisions will remain in full force and effect.

21. No Third Party Beneficiary Rights.  The Agreement is not intended to be for the benefit of any person other than Client and Confidential Search.  No other person, including any candidates or prospective candidates, will be considered a third party beneficiary of or otherwise entitled to any rights or benefits arising in connection with the Agreement.

22. Force Majeure. Neither Party will be considered to be in default as a result of its delay or failure to perform its obligations under the Agreement when the delay or failure arises out of causes beyond that Party’s reasonable control.  Causes may include acts of God or a public enemy, acts of the state or the government in its sovereign or contractual capacity, fires, floods, epidemics, strikes, and unusually severe weather; in every case, delay or failure to perform must be beyond the reasonable control of and without the fault or negligence of the Party claiming a force majeure event to excuse its performance.

23. Jury Trial Waiver.  Each Party irrevocably waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect to any dispute related to the Agreement.

Entire Agreement; Conflicts. The Agreement contains the entire agreement between the Parties regarding the subject matter hereof and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter.  The Parties will not be bound by any representation, promise, or condition not expressly set forth in the Agreement.  Preprinted terms and conditions on any purchase order issued by Client, or terms and conditions or additional requests for information included in Client’s vendor set up process, under the Agreement are superseded in their entirety by the Agreement and without force or effect, even if Confidential Search signs the purchase order or acknowledges such terms to be set up as a vendor in Client’s systems and whether such signature or acknowledgement occurs prior to or after the execution of the Agreement.  Under no circumstances will Confidential Search’s acknowledgement of any such terms be considered an amendment to the Agreement.  All purchase orders must include a reference to the Agreement.  Neither Party has been induced to enter into the Agreement by any representations or statements, oral or written, not expressly contained in the Agreement.  The Agreement may only be modified by the written agreement of both Parties.  Unless otherwise expressly provided in the CEF, if there is a conflict or inconsistency between these General Terms and Conditions and any CEF, or documents incorporated herein by reference, the order of precedence will be (a) the Product/Service Specific Terms and Conditions (but only as applied to the specific Product or Service, (b) these General Terms and Conditions, (c) the CEF.

25. Compliance with Legal and Regulatory Requirements.

a. Each Party represents and warrants that it:

i. will comply with all applicable legal and regulatory requirements of any governmental or supranational body with jurisdiction over this Agreement or either Party, which include: (a) information privacy and data protection laws and regulations relating to the protection, disclosure and use of individuals’ personal data such as the General Data Protection Regulation (GDPR) and other laws and regulations that mandate the protection of personal data; (b) anti-bribery, anti-corruption, and anti-money laundering laws and regulations; and (c) international trade laws and regulations (e.g. economic sanctions (“Sanctions”) , including those of the US, EU, UK, and UN ;

ii. is not a target of Sanctions;

iii is not located or organized in a jurisdiction that is a target of comprehensive Sanctions (including Cuba, Iran, North Korea, Syria, and the regions of Ukraine occupied by Russia) (“Sanctioned Jurisdiction”); and

iv. is not owned or controlled directly or indirectly by any person or entity that is a target of Sanctions or located or organized in a Sanctioned Jurisdiction.

b. Client further represents and warrants that it will not transfer, provide access, receive, or use the Services or work product (including tools and intellectual property): to or for the benefit of any person or entity that is a target of, or owned or controlled directly or indirectly by a target of, Sanctions; to, in, or for the benefit of any person or entity in the Russian Federation or any Sanctioned Jurisdiction, unless authorized by Confidential Search; or to or for the benefit of any other party, if such transfer, access, or use would constitute a violation of Sanctions.

c. If Client, as of the Effective Date, is a target of Sanctions, is located or organized in a Sanctioned Jurisdiction, or owned or controlled directly or indirectly by any person or entity that is a target of Sanctions or located or organized in a Sanctioned Jurisdiction, the Agreement is void at inception if Confidential Search’s performance of the Agreement would violate applicable Sanctions. Any breach of this Section 25, including if Client becomes subject to Sanctions, is a material breach of this Agreement and grounds for immediate termination by the non-breaching Party.

26. Miscellaneous. No provision of the Agreement will be construed against or interpreted to the disadvantage of any Party because that Party has or is deemed to have drafted the provision.  All section headings and captions are for the Parties’ convenience only, are not part of the text, and will not be deemed in any way to limit or affect the meaning of the Agreement.  When used in the Agreement, “including” means “including without limitation.” English is the governing language of the Agreement. Any translations that may be provided, will be provided for convenience. In the event of any conflict between the English language version of this Agreement and any translations thereof, the English language version will prevail. Where Client is granted the right in the Product Specific Terms and Conditions to create derivatives and/or make copies of Confidential Search Materials, Client must include the following copyright and proprietary notice on all derivatives and copies of Confidential Search Materials: “Copyright © 20__ Confidential Search. ALL RIGHTS RESERVED.” Confidential Search may orally refer to Client as a customer in sales presentations and activities. Upon consent from Client, Confidential Search may refer to Client as a customer in written sales presentations and marketing vehicles. Client will make reasonable efforts to provide product feedback on the Services, participate in Client’s success story on Confidential Search’s website and provide quote for services that may be featured together with logo and corporate name in marketing materials. References to written orders include orders made via email.  The Parties may execute a CEF in any number of counterpart copies, which may be delivered by PDF or other electronic means, each of which will be deemed an original, but which taken together constitute a single instrument.  Except as expressly provided in the Agreement, all remedies available to either Party for breach of the Agreement or at law or in equity are cumulative and may be exercised concurrently or separately.  Those sections of the Agreement that are intended by their nature to survive termination or expiration of the Agreement will survive.

 

CLIENT ENGAGEMENT TERMS

EXHIBIT A

DATA PROTECTION EXHIBIT (THE “EXHIBIT”)

1. INTERPRETATION

1.1 Capitalized terms used but not defined in this Exhibit have the meanings given to them in the Agreement unless the context requires otherwise.

1.2 In this Exhibit:

Agreement means the Agreement to which this Exhibit is attached;

Approved Subprocessors means the subprocessors that have been approved by Client in accordance with Section 15 of the Agreement;

Data Protection Legislation means any law, enactment, regulation, regulatory policy, by law, ordinance or subordinate legislation relating to the processing of Personal Data, as applicable to Client, Confidential Search and/or the Services, including, but not limited to the Regulation of the European Parliament and of the Council on the protection of natural persons with regard to the processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (GDPR), California Consumer Privacy Act, as amended by the California Privacy Rights Act (collectively, the CCPA) and any corresponding or equivalent national or state laws or regulations, in each case, as in force and applicable, and as may be amended, supplemented or replaced from time to time;

Data Subject means any person in respect of whom Personal Data is processed;

Personnel means officers, employees, workers or independent contractors.

Standard Contractual Clauses means the following transfer agreements where relevant Personal Data is transferred between the Client, including any Client affiliates, and onfidential Search, including Confidential Search’s affiliates, to jurisdictions deemed inadequate by Data Protection Legislation, as applicable:

a. The relevant European Standard Contractual Clauses adopted per Commission Implementing Decision (EU) 2021/914 of 4 June 2021, pre-signed by Confidential Search and available on Confidential Search’s corporate website at https://www.confidentialsearch.com/privacy/security. For transfers from the UK, the Parties agree that references in the European Standard Contractual Clauses to the GDPR will mean the UK General Data Protection Regulation, references to the EU or Member States will mean the UK, and references to a supervisory authority will mean the ICO. For transfers from Switzerland, the Parties agree that references to the GDPR will mean the Swiss Federal Act on Data Protection, references to the EU or Member States will mean Switzerland, and references to a supervisory authority will mean the Federal Data Protection and Information Commissioner (FDPIC);

b. The Argentina Standard Contractual Clauses per Decree 60-E/2016 of the Argentina Data Protection Authority;

c. Abu Dhabi Standard Contractual Clauses pursuant to the Abu Dhabi Global Market Data Protection Regulations 2021;

d. Dubai International Financial Centre (DIFC) Standard Contractual Clauses pursuant to the Data Protection Regulations of the Law No. 5 of 2020; and

e. Any other legally mandatory data transfer agreements required by Data Protection Legislation as notified by Confidential Search in writing, effective thirty (30) days after written notice.

The Parties agree that the processing or security details included in the Confidential Search pre-signed European Standard Contractual Clauses are incorporated into any other Standard Contractual Clauses where relevant. The Parties intend that this Exhibit clarifies, but does not modify or contradict, the rights and obligations of the Standard Contractual Clauses.

1.3 The Parties acknowledge and agree that this Exhibit forms an integral part of the Agreement. If there is any conflict or inconsistency between any:

1.3.1   term in the Standard Contractual Clauses;

1.3.2   term in the main part of this Exhibit; and

1.3.3   term in the General Terms and Conditions;

the term falling into the category first appearing in the list above take precedence. The Parties intend that this Exhibit clarifies, but does not modify or contradict, the rights and obligations of the Standard Contractual Clauses.  

2. SCOPE AND PURPOSE

2.1 Where Confidential Search processes Personal Data on Client’s behalf as a data processor or equivalent under Data Protection Legislation, Confidential Search will process Personal Data: (a) solely on Client’s behalf, in the manner and for the purposes set out in this Exhibit and as documented in the Agreement; (b) upon other specific reasonable documented instruction of Client; or (c) as needed to comply with Data Protection Legislation. Confidential Search will comply with Data Protection Legislation applicable to Confidential Search and provide the same level of privacy protection, including of individual rights, as is required by Data Protection Legislation.  Confidential Search certifies its understanding that it is restricted from (i) selling, sharing (for cross-context behavioural advertising purposes, as defined under the CCPA) or disclosing in exchange for consideration, Personal Data to a third party; (ii) retaining, using, or disclosing the Personal Data outside the direct business relationship of the Parties for any purpose, including commercial purposes, other than for purposes specified in the Agreement or Data Protection Legislation; and (iii) combining Personal Data Confidential Search receives pursuant to the Agreement with personal data that it receives from or on behalf of another person or persons, or collects from its own interaction with the Data Subject, provided that Confidential Search may combine Personal Data as permitted under Data Protection Legislation.  This Attachment does not apply where the Parties process Personal Data as independent data controllers, or equivalent, under Data Protection Legislation.

2.2 The types of Personal Data that may be processed by Confidential Search are those provided by Client through its use of the Services, including Personal Data comprising business contact information of Client employees and contact information, survey responses and assessment evaluation data of Client-nominated assessment participants, including information on race, ethnic origin, sexual orientation, disability and veteran status, if requested by Client. Personal Data will be processed for the purposes of communication, assessment, analysis and generating reports in the course of providing the Services. The duration of the processing will be until the deletion of the Personal Data in accordance with Section 9 of this Exhibit.

2.3 Client hereby:

2.3.1 instructs Confidential Search to take such steps in the processing of Personal Data on behalf of Client as are reasonably necessary for the provision of the Services;

2.3.2 ensures that all fair processing notices have been given (and/or, where necessary, valid consents have been obtained and not withdrawn) and are sufficient in scope and kept up-to-date in order to enable Confidential Search to process the Personal Data in accordance with the Data Protection Legislation; and

2.3.3 authorises Confidential Search to provide to the Approved Subprocessors and on behalf of Client instructions that are equivalent to the instructions set out in Section 2.3.1.

2.4 In the event Confidential Search provides Client with data in de-identified form, Client will ensure that any such information qualifies and remains qualified as de-identified data as defined under applicable Data Protection Legislation.  Client will make no attempt to re-identify any Data Subject to whom such data relates, will publicly commit to maintaining and using such data without attempting to re-identify it, will take reasonable measures to prevent such re-identification, and will indemnify Confidential Search for direct damages incurred by third parties as a result of Client’s non-compliance with this section. 

2.5 Where either Party is responsible for collecting and transferring Personal Data the provision of the Services, it will use its reasonable endeavours to ensure that it is not subject to any prohibition or restriction which would prevent the other Party from processing that Personal Data in the manner reasonably necessary for Confidential Search to perform, or Client to benefit from, the Services.

2.6 Confidential Search will inform Client if it believes that any Client instructions regarding Personal Data processing would violate the GDPR.  Confidential Search will notify Client if Confidential Search makes a determination that Confidential Search can no longer meet its obligations under CCPA and is unable to cure within a reasonable period of time (“Self Reporting”). Client may, upon notice to Confidential Search, including in the case of Self Reporting, take reasonable and appropriate steps to stop and remediate unauthorized use of Personal Data

3. CONFIDENTIALITY AND SECURITY

3.1 Confidential Search undertakes to treat all Personal Data as confidential. Confidential Search will ensure that persons authorised to process Personal Data are bound by obligations of confidentiality consistent with those imposed upon Confidential Search under this Exhibit and under the Agreement.

3.2 Where legally allowed, Korn Ferry will promptly notify Client of any legally binding request from a law enforcement authority or others for disclosure of Personal Data before making any disclosure and will reject any non-legally binding requests.

3.3 Refer to Sections 9 and 10 of the General Terms and Conditions for further security requirements.

4. SECURITY BREACH

Confidential Search will provide Client with written notice as soon as reasonably possible upon becoming aware of any actual breach of security that leads to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, any Personal Data processed by Confidential Search (a Security Breach). Confidential Search shall assist or support Client at Client’s request in complying with Client’s notification obligations regarding a Security Breach.

5. SUBPROCESSING.  Refer to Section 15 of the General Terms and Conditions.

6. CROSS-BORDER TRANSFERS OF PERSONAL DATA

Confidential Search may transfer Personal Data to various locations, which may include locations both inside and outside of the European Economic Area. Confidential Searchy will ensure that any cross-border transfers of Personal Data comply with applicable Data Protection Legislation. At Client’s request, Confidential Search and any relevant Confidential Search affiliate will enter into an appropriate data processing agreement or the standard contractual clauses with the Client to allow Client to transfer Personal Data to Confidential Search and any Confidential Search affiliate.  The Standard Contractual Clauses are incorporated by reference and the Parties’ execution of the Agreement also constitutes the execution of the Standard Contractual Clauses. Notwithstanding terms to the contrary in the Agreement, Confidential Search may amend the Standard Contractual Clauses from time-to-time, only as required by Data Protection Legislation, by sending Client written notice and such amendment will be deemed accepted by Client and become effective thirty (30) days after such notice.

7. AUDIT

7.1 Security and Compliance Audit. Client may conduct one security and compliance audit in any rolling 12-month period. The audit may include an inspection, examination, or review of relevant security controls and processing activity in Confidential Search’s physical and technical environment solely as applicable to Client’s Personal Data processed by Confidential Search pursuant to the Agreement and as is reasonably necessary to demonstrate Confidential Search’s compliance with the Agreement. As part of such security and compliance audit and upon Client’s reasonable request, Confidential Search will make available to Client all information in its possession necessary to demonstrate compliance with its obligations under Data Protection Legislation applicable to Confidential Search. Requests to conduct security and compliance audits must be made in writing to info@confidentialsearch.com. Confidential Search will provide access, at Confidential Search’s discretion, to relevant documentation, knowledgeable personnel, physical premises, summary audit reports, ISO 27001 and 27018 annual certifications, and infrastructure and application software that actually process Client’s Personal Data. The ACA must include, if applicable, a description of any network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, penetration testing, service denial attack or other testing which by its application may cause impact to Confidential Search’s data, its customers’ data, its operations or security.  If security testing is permitted, Client assumes sole and total responsibility and risk for any damages or liabilities arising directly or indirectly as a result of the testing. Permitted audits will be completed in a professional and ethical manner which does not, in Confidential Search’s reasonable judgment, compromise the integrity of Confidential Search’s (or its other customers’) data, system security, or operational performance.  Client will notify Confidential Search in writing at least twenty (20) business days prior to any audit taking place.  Audits will be conducted during Confidential Search’s normal business hours.  Client will bear all costs and expenses relating to each audit.  Client and its agents must keep confidential all information learned during any audit. Confidential Search may require outside auditors to sign an appropriate confidentiality agreement.  Confidential Search will not provide Client or its agents with access to proprietary or confidential information concerning its other customers.  All information learned or acquired by Client during any audit is Confidential Search Confidential Information.

7.2 Security Questionnaire. Upon Client’s written request but no more than once in any rolling 12-month period, Confidential Search will complete Client’s written information security questionnaire regarding Confidential Search’s processing of Client’s Personal Data.

8. KORN FERRY ASSISTANCE

Taking into account the nature of the Personal Data processing and the information available to Confidential Search, Confidential Search will assist Client with Client’s obligation to respond to Data Subjects’ requests to exercise their rights under the Data Protection Legislation; and, at Client’s request, using appropriate technical and organization measures, assist Client in meeting its compliance obligations regarding carrying out privacy and data protection impact assessments and related consultations of data protection authorities. Confidential Search may charge a reasonable fee to Client for such requested assistance, to the extent permitted by Data Protection Legislation and as agreed to by the Parties.

9. DESTRUCTION OF PERSONAL DATA

Upon request from Client, Confidential Search will destroy all Personal Data processed by Confidential Search on behalf of Client that is in the possession or under the control of Confidential Search. In the event that the Client does not make such request, Confidential Search will destroy all Personal Data in accordance with its business practices. Confidential Search shall be entitled to retain such back-ups of Personal Data to the extent is not technologically feasible to delete such Personal Data provided that if it becomes technologically feasible, Confidential Search will delete such information. Confidential Search will provide certification of deletion of Personal Data as described in Clause 12(1) of the Standard Contractual Clauses to Client only upon Client’s written request.  For the avoidance of doubt, the foregoing specifically excludes information provided by Confidential Search to Client regarding candidates in connection with an executive or professional search.

 

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