Terms of Service

PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.

Welcome to the StandOut website (the “Site“). The Marcus Buckingham Company (“TMBC,” “we,” “us,” or “our“) provides the StandOut platform, assessment and other content or features through the Site (individually and collectively, the “Service“).

You must agree to this Terms of Service (this “ToS“) in order to use the Site and/or the Service. If you use the Site and/or the Service, or click to accept or agree to this ToS if presented to you in a user interface for the Service, we will understand this as your acceptance of this ToS and your agreement to all of its terms and conditions. By accepting this ToS or using the Site and/or the Service, you represent and warrant that you have the legal capacity to enter a contract in the jurisdiction where you reside. If you do not accept this ToS, then you may not use the Site or the Service.

If you are a team leader using the Site or the Service on behalf of your employer or another entity, you represent and warrant that you have full legal authority to bind your employer or such other entity to this ToS. If you do not have such authority, then you may not use the Site or the Service on behalf of your employer and you must discontinue all use of the Site and the Service immediately.

ToS Updates. TMBC may update this ToS at any time and TMBC will post the updated version of this ToS on the Site. You understand and agree that you will be deemed to have accepted the updated ToS if you use the Site or the Service after the updated ToS is posted on the Site. If at any point you do not agree to any portion of this ToS then in effect, you must immediately stop using the Site and the Service.
Provision of the Service. You are responsible for any Internet connection and telecommunications fees and charges that you incur when accessing the Site and the Service. You acknowledge and agree that TMBC may make changes to the Site and/or the Service at any time without notifying you in advance.
Termination of Service. TMBC reserves the right to deny service to any person or entity at TMBC’s sole and absolute discretion. You acknowledge and agree that TMBC may stop providing the Site and/or the Service or restrict your use of the Site and/or the Service at any time, without notifying you in advance, for any reason or no reason, including, without limitation, for any violation of this ToS and/or if TMBC suspects that you have used any aspect of the Service to conduct any fraudulent or illegal activity. If TMBC disables your access to your account, you may be prevented from accessing the Service, your account details and/or any materials contained in your account.
Fees; Billing.
1. 4.1. If Paid By Employer. If your employer has provided you with a User ID and temporary password to log in to the Service, your employer has purchased a license to the Service for you pursuant to a StandOut Software License and Service Agreement between your employer and TMBC (“License Agreement“). By logging in, you represent and warrant that you are authorized by your employer to access the Service. Your use of the Service is at all times subject to the License Agreement in addition to this ToS. If any terms of the License Agreement conflict with this ToS, the terms of the License Agreement shall prevail.
2. 4.2. For All Other Users. Current fees for the Service are as set forth on the Site. We accept various forms of payment, as set forth on the Site from time to time. By purchasing an assessment only, you are authorizing us to charge your designated payment method for a one-time fee. By purchasing full access to the StandOut platform, you are authorizing us to charge your designated payment method on a recurring basis. Unless you cancel your subscription in the “Billing” section of your account settings or notify us of your decision to cancel, your subscription will automatically renew at the then-current fee. You will be charged on the last day of each month (each a “Charge Date“) for the immediately following monthly subscription term.
3. 4.3. Past Due Accounts. Your account may be terminated or downgraded without notice to you if payment is past due, regardless of the amount. You agree to pay any outstanding balance in full within seven (7) days of termination or downgrading of your account.
4. 4.4. Updating Billing Information. You may update any of your billing information (including a change to your desired billing payment method) through your account settings on the Site.
5. 4.5. Changes to Billing; Fees Non-Refundable. TMBC may, from time to time, modify, amend, or supplement its pricing and billing procedures, and such changes shall be effective immediately upon posting an update of this ToS or posting such changes elsewhere on the Site. If you do not accept the new changes, you should terminate your subscription immediately. If there is a dispute regarding your payment of fees, or the Service, TMBC shall have the right to terminate your account without prior notice. YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES ARE NON-REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.
Accounts and Security.
1. 5.1. Account. To access the Service, you must have an account. You can create an account by completing the registration process. You may be required to provide information about yourself or your company as part of the registration process or your continued use of the Service, and such information shall be subject to the terms of our Privacy Policy. You agree that any registration information that you submit to TMBC will be correct, accurate and up to date.
2. 5.2. Account Security. Maintaining account security is very important. You are solely responsible for maintaining the confidentiality of your account password. You agree to notify TMBC immediately if you become aware of any unauthorized use of your password or of your account.
3. 5.3. Account Sharing or Transfers. Accounts are registered to you personally and may not be sold, traded, gifted or otherwise transferred at any time under any circumstances. You may not share your account. You may not disclose your password to anyone else.
4. 5.4. Cancellation or Downgrading by You. To cancel or downgrade your account, contact TMBC by email atcustomerservice@tmbc.com. If you are a team leader, you may downgrade your account to an “assessment only” account with limited functionality (i) in the “Billing” section of your account settings, or (ii) by notifying TMBC by email at customerservice@tmbc.com.
5. 5.5. Termination or Downgrading by TMBC. TMBC may at any time terminate or downgrade your account if:
  1. a. payment is past due;
  2. b. TMBC determines that you are (a) in breach of or otherwise acting inconsistently with this ToS or (b) engaging in fraudulent or illegal activities or other conduct that may result in liability to TMBC;
  3. c. TMBC determines it is required by law to terminate your account; or
  4. d. TMBC decides to stop providing the Service or critical portions of the Service in the country where you reside, access the Site or use the Service or TMBC determines that it is no longer in its business interests to continue providing the Service or critical portions of the Service.
6. 5.6. Effect of Account Cancellation, Termination or Downgrading. If your account is cancelled or terminated, you will lose access to your account and all content. If your account is downgraded, you will retain any previously delivered content, but access and functionality going forward will be limited. If you are a team leader and your account is downgraded, you will lose access to information about your team. If you wish to reactive a cancelled or terminated account, contact TMBC by email at customerservice@tmbc.com, and TMBC may reactive such account at its sole discretion.
Your Content. Certain sections of the Service, such as your profile page and “Check-Ins” page, include features that allow you to post content, including your profile photo, comments, links and other materials (“User Content“). You retain all rights in, and are solely responsible for, the User Content you post using the Service. You grant TMBC and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, modify, create derivative works, perform and distribute your User Content through the Service solely for the purpose of providing the Service. We reserve the right to remove or modify User Content for any reason. If you remove any User Content from the Service, or if your account is downgraded, terminated or cancelled, we may retain your User Content for a commercially reasonable period of time for backup, archival, or audit purposes. YOU AGREE THAT YOU ALONE ARE RESPONSIBLE FOR YOUR POSTING OF USER CONTENT AND THAT TMBC WILL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR YOUR VIOLATION OR BREACH OF ANY TERMS OF SERVICE OR OTHER AGREEMENT THAT MAY RESULT FROM YOUR POSTING USER CONTENT.
Proprietary Rights; Data.
1. 7.1. Proprietary Rights. You acknowledge that TMBC owns the exclusive right, title and interest, including all patent, copyright, trademark, trade names, trade secrets (including, without limitation, all related technical know-how) and other intellectual property rights, throughout the world, in and to the Service and any portions or copies thereof, and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of TMBC, you or any third party (“Proprietary Rights“), and as between you and TMBC, all such Proprietary Rights shall vest in and be assigned to TMBC.
2. 7.2. Data. You acknowledge that TMBC retains all right, title and interest in any information, content or materials in written or electronic form provided by TMBC to you through the Site and/or Service (excluding User Content).
Limited License to the Service.
1. 8.1. If Paid by Employer. If your employer has provided you with a User ID and temporary password to log in to the Service, your employer has purchased a license to the Service for you pursuant to the License Agreement between TMBC and your employer. This limited license is substantially similar to that set forth below in Section 8.2 below. However, we remind you that your use of the Service is at all times subject to the License Agreement in addition to this ToS.
2. 8.2. For All Other Users. Subject to the terms and conditions of this ToS, TMBC grants you a limited, non-exclusive, revocable, non-assignable and non-transferable license to: a) access and use the Service and information provided through the Service solely to manage and operate your business or that of your employer; (b) store information uploaded by you on or through the Service; or (c) use, on an ad hoc basis in the ordinary course of your or your employer’s business, such as in internal reports, charts, pitch books and similar presentations to your or your employer’s employees, agents and consultants, an amount of information provided through the Service that has no independent commercial value and could not be used as a substitute for the Service or any part of it (“Insubstantial Amount of Data“).
Restrictions and Conditions of Use.
1. 9.1. Use of the Site. TMBC permits you to view and use a single copy of the Site solely for your personal, non-commercial use. You agree not to license, create derivative works from, transfer, sell or re-sell any information, content, materials, data or services obtained from the Site or through the Service.
2. 9.2. Accessing the Service. You agree not to access, or attempt to access, the Service by any means other than through the user interface provided through the Site or any mobile application provided by TMBC. You specifically agree not to access, or attempt to access, the Service through any automated means (including, without limitation, through the use of scripts, bots, spiders or web crawlers) and you agree to comply with the instructions contained in any robots.txt file present on the Site or the Service.
3. 9.3. No Violation of Laws. You agree that you will not, in connection with your use of the Site or the Service, violate any applicable law, ordinance, rule, regulation or treaty. Without limiting the foregoing, you agree that you will not make available through the Site and/or the Service any material or information that infringes any copyright, trademark, patent, trade secret, or other right of any party (including rights of privacy or publicity).
4. 9.4. Use Restrictions. You may not connect to or use the Site or the Service in any way that is not expressly permitted by this ToS.
  1. a. You may not: (a) use the Service or any information provided through the Service for any unlawful or unauthorized purpose or to compete with any TMBC service; (b) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying ideas or algorithms of the Service or any information provided through the Service; (c) except as permitted in relation to an Insubstantial Amount of Data, copy, transfer, distribute, reproduce, modify, translate, or create derivative works from the Service or any information provided through the Service or make available to unauthorized users any part of the Service or any information provided through the Service; (d) share IDs or passwords or install, sublicense, rent, lease, distribute, sell, resell, assign, or otherwise transfer the rights to access and use the Service to any third party; (f) use any trademarks, service marks, names, logos or other identifiers from the Service without permission; (g) remove any copyright, trademark, service mark and other proprietary notices contained on or within the Service or any information provided through the Service, or any graphical representation thereof; or (h) post or transmit through the Service any material that violates or infringes in any way upon the rights of others, that is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any law, or that, without TMBC’s express prior approval, contains advertising or any solicitation with respect to products or services.
  2. b. Without limiting the foregoing, you agree that you will not: (i) institute, assist, or become involved in any type of attack including, without limitation, denial of service attacks, upon the Site and/or the Service (or any servers, systems or networks connected to the Site or the Service) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Site and/or the Service or any other person’s or entity’s use of the Site and/or the Service (or any servers, systems or networks connected to the Site or the Service); (ii) attempt to gain unauthorized access to the Site, the Service, accounts registered to other users, or any servers, systems or networks connected to the Site and/or the Service; (iii) use the Site or the Service for any commercial purpose or the benefit of any third party, or charge any person or entity, or receive any compensation for, the use of the Site or the Service, unless you are specifically authorized to do so in a separate written agreement with TMBC; (iv) use the Site or the Service to (y) develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful; or (z) perform any unsolicited commercial communication not permitted by applicable law; or (v) engage in any activity that (A) constitutes harassment or a violation of privacy or threatens other people or groups of people; (B) is harmful to children in any manner; (C) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (D) violates any applicable law, ordinance, rule, regulation or treaty.
5. 9.5. No Data Mining or Harmful Code. You agree that you will not (a) obtain or attempt to obtain any information from the Service including, without limitation, email addresses or phone numbers of other account holders or other software data; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Site or the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse routing, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, the Site or the Service.
6. 9.6. Violation of this ToS. You acknowledge and agree that you are solely responsible, and TMBC has no responsibility or liability to you or any other person or entity, for any breach by you of this ToS or for the consequences of any such breach.
Links.
1. 10.1. Links from the Site. The Site may contain links to websites operated by other parties. TMBC provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of TMBC and TMBC is not responsible for the content available on the other websites. Such links do not imply TMBC’s endorsement of information or material on any other website and TMBC disclaims all liability with regard to your access to and use of such linked websites.
2. 10.2. Links to the Site. Unless otherwise set forth in a written agreement between you and TMBC, you must adhere to TMBC’s linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with TMBC’s and/or its licensors’ names and trademarks; (ii) the appearance, position and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with TMBC; and (iii) when selected by a user, the link must display the Site on full-screen and not within a “frame” on the linking Site. TMBC reserves the right to revoke its consent to the link at any time and in its sole discretion.
Other Intellectual Property Matters.
1. 11.1. Trademarks. The TMBC name and logo are trademarks and service marks of TMBC. Unless permitted in a separate written agreement with TMBC, you do not have the right to use any of TMBC’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
2. 11.2. Copyright Agent. TMBC respects the intellectual property rights of others, and requires that the people who use the Site and the Service do the same. TMBC maintains a policy of terminating users of the Site and/or the Service who engage in repeated infringing conduct. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
  - Your address, telephone number, and email address;
  - A description of the copyrighted work that you claim has been infringed;
  - A description of where the alleged infringing material is located;
  - A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
  - An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
  - A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
  The Marcus Buckingham Company
  Attention: Customer Service
  8350 Wilshire Boulevard
  Beverly Hills, CA 90211
  Tel: (323) 302-9810
  Email: customerservice@tmbc.com
3. 11.3. Third Party Software and Services. The Service may be incorporated into technology, software and services owned and controlled by third parties. Use of such third party software or services is subject to the terms and conditions of the applicable third party license agreements (including, without limitation, terms of use and terms of service posted on third party websites), and you agree to look solely to the applicable third party and not to TMBC with respect to your rights in relation to such third party software, technology and/or services.
Privacy Policy. By accepting this ToS or using the Site and/or the Service, you represent that you have read and consent to our Privacy Policy in addition to this ToS. TMBC may revise the Privacy Policy at any time and the new versions will be posted on the Site. If at any point you do not agree to any portion of the Privacy Policy, you must immediately stop using the Site and the Service.
Location. The Site and the Service are operated by TMBC in the United States. If you choose to access the Site and/or the Service from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws.
Children. The Site and the Service are not directed toward children under 13 years of age nor does TMBC knowingly collect information from children under 13 or allow them to create an account or access account features. If you are under 13, please do not submit any personal information about yourself to TMBC.
DISCLAIMER OF WARRANTIES.
1. 15.1. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SITE AND THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SITE AND THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
2. 15.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TMBC EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
3. 15.3. TMBC MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE SITE OR THE SERVICE.
4. 15.4. TMBC DOES NOT REPRESENT OR WARRANT THAT (a) YOU WILL BE ABLE TO ACCESS OR USE THE SITE AND/OR THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (b) THAT OPERATION OF THE SITE OR THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (c) YOUR USE OF THE SITE OR THE SERVICE WILL MEET YOUR REQUIREMENTS; (d) DEFECTS IN THE OPERATION OF THE SITE OR THE SERVICE WILL BE CORRECTED; OR (e) THE SITE OR THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
5. 15.5. YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICE IS AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE PHONE OR OTHER DEIVCE OR ANY LOSS OF DATA RESULTING FROM DOWNLOADING OR OBTAINING SUCH MATERIAL.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
LIMITATION OF LIABILITY; SOLE AND EXCLUSIVE REMEDY.
1. 16.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TMBC, AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES“), SHALL NOT BE LIABLE TO YOU, UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR:
  1. a. ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SITE AND/OR THE SERVICE, EVEN IF TMBC AND/OR THE RELATED PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES;
  2. b. THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR
  3. c. THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY MATERIALS, INFORMATION OR DATA MAINTAINED BY OR THROUGH YOUR USE OF THE SITE OR THE SERVICE.
2. 16.2. WITHOUT LIMITING THE FOREGOING, IN NO CASE SHALL THE LIABILITY OF TMBC OR ANY OF THE RELATED PARTIES EXCEED ONE HUNDRED DOLLARS ($100).
Indemnification. You agree to indemnify, defend and hold TMBC and the Related Parties harmless from any and all claims, demands, damages or other losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (i) your use of the Site and/or the Service or (ii) your breach of this ToS or any other policies that TMBC may issue for the Site and/or the Service from time to time.
Governing Law; Jurisdiction. This ToS is governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and TMBC agree that, except as otherwise provided in Section 19 below, the state and federal courts located in the County of Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to this ToS or your use of the Site or the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, TMBC shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
Binding Arbitration.
1. 19.1. Arbitration Procedures. You and TMBC agree that, except as provided in Section 19.4 below, all disputes, controversies and claims related to this ToS (each a “Claim“), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules“) and under the terms set forth in this ToS. In the event of a conflict between the terms set forth in this Section 19 and the JAMS Rules, the terms in this Section 19 will control and prevail.Except as otherwise set forth in Section 19.4, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, both you and TMBC will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in this ToS, (a) you and TMBC may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.BY AGREEING TO THIS ARBITRATION PROVISION, YOU UNDERSTAND THAT YOU AND TMBC WAIVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
2. 19.2. Location. The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone and/or internet connection appearances.
3. 19.3. Limitations. You and TMBC agree that any arbitration shall be limited to the Claim between TMBC and you individually. YOU AND TMBC AGREE THAT (a) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (b) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (c) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.
4. 19.4. Exceptions to Arbitration. You and TMBC agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of your or TMBC’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
5. 19.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we are initiating arbitration for a Claim, we will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
6. 19.6. Severability. You and TMBC agree that if any portion this Section 19 is found illegal or unenforceable (except any portion of Section 19.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 19.4 is found to be illegal or unenforceable then neither you nor TMBC will elect to arbitrate any Claim falling within that portion of Section 19.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within the County of Los Angeles, State of California, United States of America, and you and TMBC agree to submit to the personal jurisdiction of that court.
General.
1. 20.1. ToS Revisions. This ToS may only be revised in a writing signed by TMBC, or published by TMBC on the Site.
2. 20.2. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and TMBC as a result of this ToS or your use of the Site or the Service.
3. 20.3. Assignment. TMBC may assign its rights under this ToS to any person or entity without your consent. The rights granted to you under this ToS may not be assigned without TMBC’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
4. 20.4. Severability. If any part of this ToS is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the ToS shall be given full force and effect.
5. 20.5. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with this ToS, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
6. 20.6. No Waiver. Our failure to enforce any provision of this ToS shall in no way be construed to be a present or future waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by TMBC of any provision, condition or requirement of this ToS shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
7. 20.7. Notices. All notices given by you or required under this ToS shall be in writing and addressed to: 8350 Wilshire Boulevard, Beverly Hills, CA 90211, ATTN: Head of Operations.
8. 20.8. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Site or the Service, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
9. 20.9. Equitable Remedies. You acknowledge and agree that TMBC would be irreparably damaged if the terms of this ToS were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this ToS, in addition to such other remedies as we may otherwise have available to us under applicable laws.
10. 20.10. Entire Agreement. This ToS, including the documents referenced in this ToS, constitutes the entire agreement between you and TMBC with respect to the Site and the Service and supersedes any and all prior agreements between you and TMBC relating to the Site and/or the Service.

Effective Date: February 1, 2019

This Privacy Statement explains how the Marcus Buckingham Company, an ADP Company (“TMBC” or “our” or “we”) uses and discloses personal data that (i) we collect from individuals who visit our websites and associated sub-domains located at https://www.tmbc.com (the “Site”) and mobile application (the “Application”) and otherwise engage with us in business activities, or (ii) we receive from our Client (your employer) as a data processor.

This Privacy Statement incorporates ADP’s Binding Corporate Rules (“BCR”) Privacy Code for Business Data (the “Business Code”), which includes information about how ADP processes and protects data of our business contacts/professionals and consumers. For our Client employees located in the European Economic Area (EEA), this Privacy Statement also incorporates ADP’s Binding Corporate Rules (“BCR”) Privacy Code for Client Data Processing Services (the “Processor Code”). For more information on Business Code, Processor Code, or our Privacy Program, please click any of the overviews located here: https://www.adp.com/privacy.aspx. If you have additional questions about privacy or this Privacy Statement, please contact our Privacy Team at Privacy@ADP.com.

Types of Personal Data
Personal data is any information that can be used to identify, locate, or contact you. Some examples of personal data include your name, username, mailing address, telephone numbers, email address, customer account information, or other information about how you use the Site and Application. Personal data also includes other information that may be associated with your personal data.

How TMBC Collects Personal Data & Categories of Personal Data Collected
In the ordinary course of business, ADP collects and processes personal data on behalf of your employer when we act as a data processor.

If you are using the Site as a consumer and not as a Client employee, we collect Personal Data directly from you as a data controller. We will ask you for Personal Data when you interact with us, such as registering on our Site, signing up to receive a newsletter or marketing communications, making a purchase, entering comments related to job priorities and other work-related activities, as well as commenting with team members and leaders through the software, engaging with the Engagement Pulse or Performance Pulse tools, or providing services, goods, or products. We may also collect additional information from other ADP products.

TMBC, when acting as a data controller, collects the following categories of Personal Data directly from you: first name, last name, email address, professional information, billing information, address, and phone number.

If you interact with us through the Site or Application, we use cookies or other technological tools to collect information about your device and your use of our Site or Application. We treat this information as personal data when it is associated with your contact information. For more information about cookies and other technologies, please see the section Cookies and Other Data Collection Technologies below.

How TMBC uses Personal Data
When TMBC is acting as a data processor to your employer, TMBC processes your personal data only as instructed or permitted by your employer, in which case only your employer can inform you on the different purposes for which it will process your data through our products.

Otherwise, TMBC uses your personal data for the following business purposes:

Business purposes for processing personal data pertaining to business contacts/professionals. Personal data pertaining to business contacts/professionals with whom TMBC has a business relationship may be processed as needed:
To send communications related to providing services (such as emails from the production about events such as doing your weekly check-in, being invited to a team, or being part of an Engagement Pulse, requests for information, responses to requests for information, orders, confirmations, training, and service updates);
For account management, accounting, finance, and dispute resolution purposes (such as accounts receivable, accounts payable, account reconciliation, cash management, or money movement) and for consolidated management and reporting;
To assure quality control and to enforce our standards and policies;
For security management, including monitoring individuals with access to the Site, Application, systems, or facilities, investigation of threats, and as needed for any data security breach notification;
To anonymize or de-identify the personal data; and
For purposes of providing coaching, professional development, performance reviews, and employee insights, and tracking.
Business Purposes for processing personal data pertaining to consumers and other individuals. Personal data pertaining to consumers and other individuals may be processed as needed:
To provide the information, product, or service requested by the individual, and as would be reasonably expected by the individual given the context in which the personal data was collected, and the information provided in the applicable privacy statement given to the individual (such as for personalization, remembering preferences, or respecting individual rights);
For due diligence, including verifying the identity of the individual, as well as the eligibility of the individual to receive information, products, or services (such as verifying age, employment, or account status);
To send transactional communications (such as requests for information, responses to requests for information, orders, confirmations, training materials, and service updates);
To manage an individual’s account, such as for customer service, finance, and dispute resolution purposes;
For risk management and mitigation, including for audit and insurance functions, and as needed to license and protect intellectual property and other assets;
For security management, including monitoring individuals with access to the Site, Application, systems, or facilities, investigation of threats, and as needed for any data security breach notification;
To anonymize or de-identify the personal data; and
For purposes of providing coaching, professional development, performance reviews, and employee insights, and tracking.
Business-necessary processing activities.TMBC may also process personal data as needed (i) to protect the privacy and security of the personal data it maintains, such as in connection with advanced security initiatives and threat detection; (ii) for treasury operations and money movement activities; (ii) for compliance functions, including screening individuals against sanction lists in connection with anti-money laundering programs; (iv) for business structuring activities, including mergers, acquisitions, and divestitures; and (v) business activities, management reporting, and analysis.
Development and improvement of products and/or services.TMBC may process personal data to develop and improve TMBC’s products and/or services, and for research, development, analytics, and business intelligence.
Relationship management and marketing.TMBC may also process personal data for relationship management and marketing. This purpose includes sending marketing and promotional communications to individuals who have not objected to receiving such messages as may be appropriate given the nature of the relationship, such as product and service marketing, investor communications, Client communications (e.g., HR compliance alerts, product updates, and training opportunities and invitations to ADP events), customer satisfaction surveys, supplier communications (e.g., requests for proposals), corporate communications, and TMBC news.TMBC uses your personal data for secondary purposes such as:
Disaster recovery and business continuity, including transferring the information to an archive
Internal audits or investigations
Implementation or verification of business controls
Statistical, historical, or scientific research
Dispute resolution
Legal or business counseling
Compliance with laws and company policies
Insurance purposes
Why and How Personal Data is disclosed by TMBC
TMBC does not provide your personal data to third parties outside of ADP Group Companies for their own marketing purposes. We share your personal data:

To ADP Group Companies, which use your personal data for the purposes listed in this Privacy Statement.
To our service providers, who are bound by law or contract to protect your personal data and only use your personal data in accordance with our instructions.
To enforce our rights, protect our property, or protect the rights, property, or safety of others; in connection with the sale, assignment, or other transfer of TMBC’s business or assets, or as needed to support external auditing, compliance and corporate governance functions. We will also disclose personal data when required to do so by law, such as in response to a subpoena, including to law enforcement agencies and courts in the United States and other countries where we operate.
As instructed or permitted by your employer (when we are acting as a data processor) or you.
As needed to provide the services that you and/or your employer have requested.
Please note that we may also use and disclose information about you that is not personally identifiable. For example, we may publish reports that contain aggregated, anonymized, and/or statistical data about our Clients. These reports do not contain information that would enable the recipient to contact, locate, or identify you. These reports also do not contain identifiable company information.

Cookies and Other Data Collection Technologies
When you visit our Site, use our Application, or receive digital communications from us, we collect certain information by automated means, using technologies such as cookies, pixel tags, browser analysis tools, server logs, and web beacons. For example, when you visit our Site, we place cookies on your device. Cookies are small text files that websites send to your computer or other internet-connected device to uniquely identify your browser or to store information or settings in your browser. Cookies allow us to recognize you when you return. They also help us provide a customized experience and enable us to detect certain kinds of fraud. In many cases, you can manage cookie preferences and opt-out of having cookies and other data collection technologies used by adjusting the settings on your browser. All browsers are different, so visit the “help” section of your browser to learn about cookie preferences and other privacy settings that may be available. Pixel tags and web beacons are tiny graphic images placed on website pages or in our emails that allow us to determine whether you have performed a specific action. When you access these pages or open or click an email, the pixel tags and/or web beacons generate a notice of that action. These tools allow us to measure response to our communications and improve our web pages and promotions.

We collect many different types of information from cookies and other technologies. For example, we collect information from the device you use to access our Site, your operating system type, browser type, domain, and other system settings, as well as the language your system uses and the country and time zone where your device is located. Our server logs also record the Internet Protocol (“IP”) address assigned to the device you use to connect to the Internet. An IP address is a unique number that devices use to identify and communicate with each other on the internet. We may also collect information about the website you were visiting before you came to the Site and the website you visit after you leave our Site.

In many cases, the information we collect using cookies and other tools is only used in a non-identifiable way, without reference to personal data. For example, we use information we collect about website users to optimize our Site and to understand website traffic patterns. In some cases, we do associate the information we collect using cookies and other technology with your personal data. This Privacy Statement applies to the information when we associate it with your personal data.

Although our Site currently does not have a mechanism to recognize the various web browser Do Not Track signals, we do offer Individuals choices to manage their preferences that are provided in the previous sections above. The Site does not collect Personal Information about an individual consumer’s online activities over time and across different websites when a consumer uses the Site. To learn more about browser tracking signals and Do Not Track please visit http://www.allaboutdnt.org/. TMBC uses Google Analytics as a third party vendor. For information on how Google Analytics uses data, please visit “How Google uses data when you use our partners sites or apps”, located at http://bit.ly/2jXZ13Y.

Mobile Applications
TMBC offers the Application, which allows you to access your account, interact with us online, and receive other information via your mobile device. Personal data collected by TMBC via our Application is protected by the terms of this Privacy Statement or our Privacy Statement for Client Employees, as applicable.

Communication Preferences
When TMBC acts as a data controller, you may limit the information you provide to TMBC. You may also limit the communications that TMBC sends to you. To opt-out of commercial emails, simply click the link labeled “unsubscribe” at the bottom of the commercial email we send you. Please note that if you are currently receiving services from TMBC and you have decided to opt-out of emails, this will not impact the messages we send to you for purposes of delivering such services or as permitted by applicable law. If you have questions about your choices or if you need assistance with opting-out, please contact us via email to Privacy@ADP.com. You may also write us at the address in the How to Contact Ussection below. If you send us a letter, please provide your name, address, email address, and information about the communications that you do not want to receive.

Access, Correction, Erasure, and Other Individual Rights
TMBC respects your right to access, correct, and delete your personal data, or object to the processing of your personal data. If you have an online account, you may log into your account to access update, or delete the information you have provided to us. Additionally, you may contact Privacy@ADP.com to request access to your data, or to exercise any of the individual rights afforded to you by ADP’s Business Code, or by applicable data protection laws and regulations. You may also write to us at the address in the How to Contact Us section below. If you send us a letter, please provide your name, address, email address, and detailed information about the changes you would like to make. TMBC will respond to requests as soon as possible and in accordance with applicable data protection laws.

This section is not applicable if TMBC processes your data according to a contract with your employer. Your contact will be your employer who can inform you about any rights you may have.

Information Security
TMBC is committed to maintaining appropriate organizational, technical, and physical controls to protect personal data entrusted to TMBC. These controls protect personal data from anticipated threats and hazards and unauthorized access and use. Additional information about ADP’s Global Security Organization may be found at http://www.adp.com/trust. You should also take steps to protect yourself, especially online. When you register at the Site, choose a strong password, and do not use the same password that you use on other websites. Do not share your password with anyone else. TMBC will not ask you for your password in an unsolicited phone call or in an unsolicited email. Also remember to sign out of the Site and close your browser window when you have finished your work. This is to ensure that others cannot access your personal data and correspondence if they have access to your device.

Data Retention
TMBC will retain your personal data for as long as necessary for the purposes for which the personal data is processed. TMBC follows a Global Records Information Management (“RIM”) Policy and has established records retention schedules for all types of personal data that TMBC processes. Personal data is retained in accordance with the records retention schedules to ensure that records containing personal data are retained as needed to fulfill the applicable business purposes, to comply with applicable laws, or as advisable in light of applicable statutes of limitations. When the retention period has expired, records containing personal data will be securely deleted or destroyed, de-identified, or transferred to archive, in accordance with ADP’s RIM Policy.

This section doesn’t apply to processing carried out through a contract between your employer and TMBC.

International Data Transfers
TMBC is headquartered in the United States of America. Your personal data may be accessed by or transferred to the United States or elsewhere in the world in accordance with the ADP Privacy Code for Business Data.

Where authorized by your employer, ADP will transfer personal data pertaining to individuals located outside of the United States to our affiliates and suppliers in the United States and elsewhere in the world, pursuant to applicable data protection laws. We will only transfer personal data pertaining to individuals located in the European Economic Area as permitted by the ADP Privacy Code for Client Data Processing. Please click here for the list of our affiliates bound by the ADP Privacy Code for Client Data Processing Services.

Job Applicants
If you have applied for employment with TMBC, the personal data submitted with your job application will be added to our recruitment system and used for recruitment and other customary human resources purposes in accordance with ADP privacy policies.

Individuals Located in the European Economic Area
In addition to the rights already listed in this Privacy Statement, you also have the right to data portability, as well as the right to be notified of automated decision making or profiling related to your personal data. A data protection officer for the European Economic Area (“EEA”) has been appointed and can be reached at DataProtectionOfficer.ADPEMEA@adp.com. You may reach the data protection officer via mail at the address below.

Data Protection Officer – EMEA
ADP Europe SAS
31 Avenue Jules Quentin
92000 Nanterre
France
This section doesn’t apply to processing carried out through a contract between your employer and TMBC. As an employee of an ADP Client, please reach out to your employer for more information regarding the collection and processing of your personal data.

Changes to this Privacy Statement
We may update this Privacy Statement to reflect new or different privacy practices. We will place a notice online when we make material changes to this Privacy Statement.

Group Companies bound by this Privacy Statement
For a listing of Group Companies bound by this Privacy Statement and the Privacy Code for Business Data, please click www.adp.com/privacy/pdf/A2CoBDC.pdf.

How to Contact Us
Please contact us if you have questions, or comments. You may reach us via email at Privacy@ADP.com, or via mail at address below. If you send us a letter, please provide your name, address, email address, and detailed information about your question, comment, or complaints.

TMBC
Global Data Privacy and Governance Team
MS 325
One ADP Boulevard
Roseland, NJ 07068-1728 USA
How to Lodge a Complaint
If you believe that TMBC has not handled your personal data properly or that it has breached its privacy obligations, under any applicable data protection laws or the Business Code or of applicable law, you may file your complaint in writing to the address above, or via email, to the Global Data Privacy and Governance Team at Privacy@ADP.com. The Global Data Privacy and Governance Team will investigate each complaint and notify you within a reasonable timeframe of the outcome of the investigation. If you are not satisfied by the resolution TMBC proposes, you may lodge a complaint in accordance with the provisions of the Business Code.

This section doesn’t apply to processing carried out through a contract between your employer and TMBC. However, if you are a Client employee located in the EEA and Switzerland, you may file a complaint as a third party beneficiary in respect of a claim you may have for violation of the ADP Privacy Code for Client Data Processing Services or applicable law, by contacting the Global Data Privacy and Governance Team at Privacy@ADP.com. If ADP’s response to your complaint is unsatisfactory, you may file a complaint or claim with the relevant regulatory authorities or the courts, in accordance with the provisions of the ADP Privacy Code for Client Data Processing Services.

U.S. State Specific Privacy Rights
If you are a Nevada or California resident click here for additional information regarding your privacy rights.

Last Updated: December 30, 2019

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