Master Services Agreement for Workshare Solutions & Services

This agreement is agreed online (after clicking ‘I agree’ or using a similar mechanism) and made between:

Workshare Technology Inc., a corporation incorporated in California, with a place of business at 650 California Street, Floor 7, San Francisco, CA 94108 ('Workshare'); and the organization or person named as the customer during the online contracting process (‘the Customer’).

Background

Workshare provides solutions to enhance review, comparison, and collaborative iteration of documents and emails. The solutions include hosted and on-premise software. This agreement is a master services agreement which covers all Workshare solutions and services. The Customer requirements are documented in Orders, issued as needed. Each Order is a separate contract and incorporates the terms of this agreement. Notwithstanding the foregoing, in the event of a conflict between the Order and this agreement, the terms of this agreement shall prevail. In no case shall any terms included in any purchase order issued by Customer govern the terms of this agreement.

1. Scope of this agreement

This table describes the scope of what Workshare might supply under this agreement:

'Deliverables', includes:

'Solution'

means the combination of:

'Professional Services'

means:

'Products'

means the component parts of Workshare software that are individually selectable

'Hosting'

includes providing, configuring, operating and maintaining the Workshare Platform

'Support and Maintenance'

as described in clause 14

any requirement for services or assistance from Workshare other than Hosting, or Support and Maintenance. Set up, configuration and training are examples of Professional Services.

 

2. Definitions and interpretation

2.1. In this agreement:

'Deliverables', 'Solution', 'Products', 'Hosting', 'Support and Maintenance' and 'Professional Services' have the meanings derived from the table in clause 1.

'Acceptance Test' means the user acceptance tests (if any) to be undertaken by the Customer to verify that the Solution (or Product or other part) appears to comply with the relevant Order.

'Charges' means any sums payable to Workshare for performance an Order, being sums specified in the Order or, if an Order does not specifically state relevant Charges, sums calculated at Workshare's standard rates then prevailing.

'Commercial Efforts' means a course of conduct consistent with a reasonable effort to achieve the relevant outcome within a level of urgency, expenditure, resource constraint and risk profile that competent and commercial management would reasonably regard as proportionate.

'Confidential Information' means any non-public information concerning the parties or their respective business or technology that may be learned by the other party in connection with Product or Solution and that is identified as confidential or which the other party should know from the nature of the information is the confidential information of the other party. Confidential Information shall include, without limitation, as (i) trade secrets; (ii) financial information and pricing; (iii) technical information, such as research, development, procedures, algorithms, processes, data, designs, and know-how; (iv) business information, such as operations, planning, marketing interests, and products; and (v) with respect to Workshare, the services and the technology, and all related documentation. Confidential Information does not include information that is: (a) known to the receiving party prior to disclosure by the disclosing party; (b) independently developed by the receiving party without any reliance on the Confidential Information; (c) part of the public domain or is lawfully obtained by the receiving party from a third party not under an obligation of confidentiality; (d) free of confidentiality restrictions by agreement of the disclosing party; or (e) the existence of the relationship of the parties under these Terms of Use.

'Customer Facilities' means the hardware, software, and Internet connectivity used by the Customer to access the Solution.

'Customer Group' means (i) the Customer, (ii) any entity that wholly owns the Customer (directly or through one or more subsidiary entities) and (iii) all the entities that are wholly owned by any of those entities.

'Customer Materials' means all text, graphics, pictures, data, documents, information and other materials of any kind posted on, stored within or made available through the Solution by the Customer.

'Data Protection Law' means any federal or state statute or regulation governing the use or disclosure of any Customer Materials as well as legislation encompassing the processing of Personal Data including the Regulation (EU) 2016/679 (commonly known as the General Data Protection Regulation).

'Evaluation Use' means use of a Solution for a limited period by a prospective Internal User to evaluate the Solution prior to paying the applicable Charges.

'External User' means a human user (who must not be a Customer employee or Contractor) invited by an Internal User to participate in limited use of Products free of Charges as a guest user to facilitate work on a Customer project.

'Intellectual Property Rights' means inventions, patent applications, right to apply for patents, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

'Internal User' means (i) a human user of Products for whom the Customer has paid the applicable Perpetual License Fees or Subscription Fees or (ii) a human user of Products for Evaluation Use.

'Order' means either (i) a document that is labelled as an Order, is signed by both parties and specifies Deliverables to be provided by Workshare (an example Order is attached to this agreement) or (ii) completion of an online process provided by Workshare that allows the Customer to specify Deliverables to be provided by Workshare.

'Perpetual License' means a license granted by Workshare to the Customer to use specified Products to be installed on Customer Facilities for an unlimited period (except as described in clause 4.3 and unless terminated as expressly stated in this agreement) subject to payment of once only license fees ('Perpetual License Fees').

'Workshare Platform' means the combination of hardware, operating software, storage devices and networking that is necessary to make the Products accessible by the Customer using the Internet. The Workshare Platform includes all such items up to the point where they connect to the Internet and therefore does not include the Internet, Customer Facilities or items provided by the Customer.

'Subscription' means the supply by Workshare to the Customer of specified Products as part of a Solution for a specified minimum period (the 'Subscription Period') subject to payment of recurring Charges ('Subscription Fees') as documented in an Order.

2.2. The word 'including' used in this agreement or an Order means 'including (but not limited to)' and references to 'included' or 'include' are to be similarly interpreted.

 

3. Orders

3.1. Each Order is a separate contract incorporating the terms of this agreement.

3.2. Any references to Deliverables complying with this agreement or an Order are to be interpreted as requiring compliance with both the terms of this agreement and the relevant Order.

 

4. Evaluation Use

4.1. This clause 4 applies when Workshare supplies any Products to the Customer for Evaluation Use.

4.2. Products will be deemed to be supplied for Evaluation Use if they are supplied to the Customer:

4.2.1 pursuant to an Order which states that they are supplied for Evaluation Use (and Evaluation Use is then permitted for the period specified in the Order or, if no period is specified, 90 days); or

4.2.2 in the absence of an Order (and Evaluation Use is then permitted for 90 days).

4.3. Notwithstanding any other provisions of this agreement, any Products that Workshare makes available for Evaluation Use will be licensed only for the duration of the Evaluation Use unless and until the Customer pays the applicable License Fees, in which case the term of the License is as provided in the Order.

4.4. Unless otherwise stated in an Order, no Charges are payable by the Customer for Evaluation Use, however Charges are payable in order that the Evaluation Use become a License.

4.5. On or before the end of the period permitted for Evaluation Use, the Customer shall:

4.5.1 cease using the Products and, in the case of Products installed on the Customer Facilities, uninstall the Products from Customer Facilities; or

4.5.2 if the Customer continues to use the Products after the period permitted for Evaluation Use or if the Customer does not uninstall the Products from Customer Facilities (irrespective of whether Products installed on the Customer Facilities are used), the Customer will become liable to pay the relevant Charges for a License in accordance with clause 4.6.

4.6. The Charges payable for Products after Evaluation Use will be:

4.6.1 the Charges specified in the applicable Order; or

4.6.2 if there is no applicable Order specifying the Charges, the Charges prevailing at that time for new Workshare customers.

4.7. Workshare will have no liability for any losses or claims arising during Evaluation Use of a Solution.

 

5. External Users

5.1. This clause 5 applies when a Solution is available to External Users.

5.2. The extent of the facilities available to External Users varies over time and for each Product but is always limited to Products provided in the form of software-as-a-service.

5.3. As a condition of access to a Solution, Workshare may require External Users to use an online mechanism to agree terms of use. The terms of use may include limitations of Workshare liability and limit the duties of Workshare to External Users.

5.4. The Customer is responsible for deciding whether the applicable Solution is appropriate for External Users.

 

6. Workshare obligations

6.1. Workshare shall provide Deliverables in accordance with Orders.

6.2. Workshare shall perform this agreement:

6.2.1 using commercially reasonable care and skill;

6.3. If any timescales are stipulated for the supply of Deliverables:

6.3.1 Workshare shall use Commercial Efforts to comply with the timescales;

6.3.2 the timescales will be deemed to be extended by the period of any delay caused by (i) any cause beyond Workshare's reasonable control or (ii) the Customer; and

6.3.3 if a breach of clause 6.3.1 causes a timescale to be missed or makes it likely that a timescale could be missed, Workshare shall use Commercial Efforts to reduce the delay as far as practicable.

 

7. Supply of Products

7.1. It is the Customer's responsibility to verify that the Solution is suitable in all respects for the Customer's business needs.

7.2. Products may be supplied by reference to the number of users (referring to Internal Users or External Users or both), duration of use, or any other parameters used by Workshare to define the License for use of the Products. For such Products:

7.2.1 the Customer shall limit use of Products in accordance with such parameters and for which the Customer has paid the applicable Charges ; and

7.2.2 Products may include (and the Customer authorises the use of) mechanisms to monitor and enforce compliance with clause 7.2.1.

7.3. Customer employees or contractors must be Internal Users rather than External Users. The Customer is also permitted to provision third party users as Internal Users. The Customer shall not use the facility to invite External Users as a means of providing its employees or contractors with use of Deliverables.

7.4. Unless otherwise expressly stated in the relevant Order:

7.4.1 for each Product supplied for Evaluation Use, the period allowed for Evaluation Use begins when the Product is first made available to the Customer irrespective of when the Customer commences evaluation of the Products;

7.4.2 for each Product supplied with a Perpetual License, the license begins when the Product is first made available to the Customer for Acceptance Tests or live use (whichever is the earlier, and irrespective of when Acceptance Tests or live use begin);

7.4.3 for each Product supplied with a Subscription, the Subscription Period begins when the Product is first made available to the Customer for Acceptance Tests or live use (whichever is the earlier, and irrespective of when Acceptance Tests or live use begin).

 

8. Software License

8.1. For Products supplied in the form of software-as-a-service:

8.1.1 such Products are available only in the form of software-as-a-service unless the Order expressly states that they are also supplied for installation on the Customer Facilities; and

8.1.2 the Customer does not need, and this agreement does not include, any grant of a software license for Products used only as a service.

8.2. For Products supplied for installation on the Customer Facilities, Workshare hereby grants to the Customer a license to store and use such Products in the United States for the period set forth in the Order subject to the following:

8.2.1 the license is personal and non-transferrable except the Customer is permitted to deploy Products as described in clauses 5 and 7.3;

8.2.2 for Products supplied with a Perpetual License, the license will continue indefinitely, except as set out in clause 8.2.4;

8.2.3 for Products supplied with a Subscription, the license continues only for the Subscription Period; and

8.2.4 even for Products supplied with a Perpetual License, the license may be terminated earlier by Workshare (under clause 24.4) if the Customer (i) fails to pay relevant Perpetual License Fees or (ii) breaches clause 8.3; (iii) uses the Products in breach of clause 7.2 or (iv) infringes Workshare's Intellectual Property Rights in the Product.

8.3. The Customer shall not (or attempt to):

8.3.1 reverse engineer or decompile any Products;

8.3.2 modify Products except as directed by Workshare during Professional Services or Support and Maintenance;

8.3.3 remove any copyright, trademark or other proprietary notices from the Solution, or any component thereof

8.3.4 develop or assist with the development of a product or service using similar ideas, features, functions, or graphics of the Solution, or otherwise use the Products for the purpose of developing competing products;

8.3.5 resell any Deliverables (except the Customer is allowed to re-charge other members of the Customer Group); or

8.3.6 use the Solution for commercial time-sharing or in any manner for anyone other than Named Users of the Customer for its own internal business purposes

8.3.7 create modifications to or derivative works of the Solution or any component thereof;

8.3.8 use or attempt to use or access any Workshare services other than the Solution specifically subscribed to by Customer under this agreement or pursuant to another written agreement with Workshare;

8.3.9 copy any ideas, features, functions, or graphics of the Solution. Customer shall have no right to receive any source code or source documentation with respect to the Workshare system or the Solution; or

8.3.10 circumvent the mechanisms described in clause 7.2.2.

 

9. Professional Services

9.1. This clause 9 applies if the Customer requires Professional Services.

9.2. Professional Services must be documented in an Order.

9.3. Unless the Order specifically states that Charges for Professional Services are 'fixed', the Charges for Professional Services are calculated on a 'time and materials' basis (a commitment by the Customer to pay Charges at the agreed rate based on the actual time taken by Workshare to perform the Professional Services even if the actual time transpires to be shorter or longer than anticipated).

 

10. Facilities to be provided by the parties

10.1. Workshare shall provide, configure and maintain the Workshare Platform at its own risk and cost.

10.2. The Customer shall provide, configure and maintain the Customer Facilities at its own risk and cost. Some Products might require the Customer to have a compatible browser, office software or similar applications available from third party suppliers.

10.3. Products might be designed for use with the Customer Facilities meeting a minimum requirement or compatible only with a specific operating environment. The full functionality of a Solution might be undermined by incompatible configuration of the Customer Facilities (including firewalls or other security measures beyond Workshare's control). The Customer acknowledges that the nature of information technology systems means the minimum requirements and compatible environments may be subjective and might change from to time.

10.4. Upon request by the Customer, Workshare will provide Customer with details of the minimum requirements and compatible environments then prevailing for Customer Facilities.

 

11. Use of the Deliverables

11.1. The Customer is permitted to use the Deliverables for any member of the Customer Group but:

11.1.1 the Customer is liable for all Charges (even if Workshare agrees to invoice a member of the Customer Group);

11.1.2 the Customer will be responsible for the acts and omissions of the Customer Group; and

11.1.3 the Customer must ensure that any claims arising out of or connected with this agreement or any Order (howsoever caused) are actioned only by the customer. However, the Customer can claim for loss or damage incurred by any member of the Customer Group as if such loss or damage was incurred by the Customer.

11.2. Except as permitted by clauses 5, 7.3 and 11.1, Deliverables are supplied to the Customer for its own internal use in the ordinary course of business and must not be re-sold or otherwise made available to any third party.

 

12. Materials supplied by Customer

12.1. If the Customer uploads any Customer Materials to the Workshare Platform, the Customer is responsible for:

12.1.1 ensuring that the Customer Materials are uploaded lawfully, in compliance with any third party license requirements and that use of the Customer Materials on the Workshare Platform shall not infringe the Intellectual Property rights of any third party;

12.1.2 paying any third party license fees, royalties or other costs required for their lawful use; and

12.1.3 checking that the Customer Materials are suitable in all respects for such use.

12.2. The Customer will indemnify and hold Workshare harmless against any costs or third party claims arising caused by a breach by the Customer of clause 12.1.

12.3. As between the Customer and Workshare, the Customer will remain the owner of all Customer Materials.

12.4. Upon termination of a Solution, it is the Customer's responsibility to extract and retain any Customer Materials or other data stored using the Solution. Workshare shall provide such assistance as the Customer may require but such assistance will be chargeable as a Professional Service.

 

13. Acceptance Testing

13.1. Acceptance Tests will be performed if the relevant Order stipulates that Acceptance Tests are required or if Workshare recommends that any Product is subjected to Acceptance Tests. If the Customer desires to undertake Acceptance Tests that are neither stipulated in the Order nor recommended by Workshare, the Customer is at liberty to conduct Acceptance Tests but any extra Professional Services arising for Workshare will be subject to additional Charges.

13.2. Acceptance Tests will be performed by the Customer as it reasonably sees fit for each Product to verify that the Product appears to comply with the Order and this agreement.

13.3. If Acceptance Tests are performed, the Customer perform them promptly upon supply of the Product (and in any event within 14 days) and shall keep Workshare informed of progress.

13.4. Workshare shall provide reasonable co-operation and assistance to the Customer to aid the Acceptance Tests.

13.5. If the Solution or any Product fails the Acceptance Tests:

13.5.1 the Customer shall promptly notify Workshare in writing of the details of the failure;

13.5.2 Workshare shall investigate and remediate the cause of failure and provide a revised Solution to the Customer for re-testing;

13.5.3 the Customer and Workshare shall continue the cycle of testing and remediation until the Solution passes the Acceptance Tests; and

13.5.4 the Customer shall not use the Solution for any purpose other than training and Acceptance Tests until the Solution passes the Acceptance Tests.

13.6. The Solution (or relevant Product) will be deemed to have passed the Acceptance Tests if:

13.6.1 the Customer confirms in writing the satisfactory completion of Acceptance Tests;

13.6.2 14 days elapses after the Solution (or relevant part) has been made available for Acceptance Testing and the Customer has not notified Workshare of any failure; or

13.6.3 the Customer commences use of the Solution for purposes other than training or Acceptance Tests.

13.7. The satisfactory completion of Acceptance Tests will not prejudice Customer's right to request correction of errors pursuant to clause 14.

 

14. Support and Maintenance

14.1. Workshare shall perform Support and Maintenance for:

14.1.1 products supplied with a Subscription, for the duration of the relevant Subscription Period and

14.1.2 products supplied with a Perpetual License, during the period for which the Customer buys Support and Maintenance.

14.2. Workshare shall provide Support and Maintenance that includes:

14.2.1 online and phone support for all technical issues relating to the use of Products (including errors or problems with Products, issues during setup and assistance understanding specific features); and

14.2.2 all available updates and upgrades as they become available for general release (electronically via download from Workshare's website) all service releases, patches and amendments to the Products.

14.3. Support and Maintenance does not include the following items (and any requirement for such items would be treated as a request for Professional Services):

14.3.1 items not provided by Workshare;

14.3.2 any modifications to the Products not performed by Workshare or made at its direction;

14.3.3 use of the Products other than in a recommended environment described in the documentation; or

14.3.4 continued use of a version of the Products for which Support and Maintenance is no longer provided, as specified in the End of life policy at https://www.workshare.com/company/end-of-life-policy.

14.4. The Customer shall provide Workshare with all information and materials requested by Workshare for use in replicating, diagnosing and correcting an error or other problem with Products reported by the Customer. The Customer acknowledges that Workshare's ability to provide satisfactory Support and Maintenance is dependent on Workshare having the information necessary to replicate the reported error. In reporting an error to Workshare, the Customer will complete a service request (a "Service Request") that includes

14.4.1 the Customer name and on-site technical contact information;

14.4.2 version and maintenance release level of the Product;

14.4.3 platform and version on which the Product is running;

14.4.4 a reasonably detailed description of the error, together with any supporting information that the Customer's engineers believe will assist Workshare in its diagnostic process;

14.4.5 any error message(s) or other message(s) generated in association with the error;

14.4.6 any applicable trace files and/or error logs;

14.4.7 a test case or instructions necessary to demonstrate the error;

14.4.8 identification of any additional information (such as dumps, logs, etc.) that are, or can be made, available; and

14.4.9 the date and time that the Service Request is submitted to Workshare.

14.5. The Customer acknowledges that an update or upgrade provided by Workshare might be necessary to the proper operation of the Product and therefore the Customer agrees to promptly install all updates or upgrades made available by Workshare to ensure that the Customer's version of the Product remains supported.

14.6. Workshare shall publish on its website the telephone, email and online facilities for the Customer to request Support and Maintenance.

14.7. The Support and Maintenance helpdesk operates 24 hours a day on weekdays.

14.8. Helpdesk requests will be prioritised according to severity at the initial logging of the request. Categories of severity are described below. The Customer is required to respond/act appropriately to achieve timeliness of the resolution of helpdesk requests.

Severity Level

Definition

Response

Critical

Immediate / major impact on the Customer's business processes

Application inoperable

Data loss

Prevents application rollout

No workaround available

Response by a qualified member of Workshare staff to begin to diagnose and to correct a Critical fault within 4 hours after notification by the Customer via telephone. Workshare shall use Commercial Efforts to resolve Critical faults as soon as possible. The resolution will be delivered to the Customer as a work-around or as an emergency software fix. If Workshare delivers an acceptable work-around instead of a solution, the severity classification will drop to High or lower

High

Significant impact on the Customer's business processes

Usability restricted

Feature working poorly

No workaround available

Response by a qualified member of Workshare staff to begin to diagnose and to correct a High fault within 8 hours after notification by the Customer via telephone. Workshare shall use Commercial Efforts to resolve High faults as soon as possible. The resolution will be delivered to the Customer as a work-around or as an emergency software fix. If Workshare delivers an acceptable work-around instead of a solution, the severity classification will drop to Medium or lower

Medium

Minor impact on the Customer's business processes

Usability restricted

Feature inaccessible / not working as designed

Workaround available

Response by a qualified member of Workshare staff to begin to diagnose a Medium fault within 1 business day of notification by the Customer via telephone. Workshare shall use Commercial Efforts to resolve Medium faults in the next update of the Product. If Workshare determines, in its sole discretion, that the requirement is unique to the Customer's operations, Workshare will notify the Customer within 2 weeks of receiving notification of the fault with an appropriate recommendation and estimate for resolving the incident.

Low

Minor and / or intermittent impact on the customer's business processes

Response by a qualified member of Workshare staff to begin to diagnose a Low fault within 1 business day of notification by the Customer. Workshare does not guarantee a resolution time for Low incidents.

 

15. Hosting Services

15.1. When an Order includes Hosting, Workshare shall deploy the relevant Products using the Workshare Platform.

15.2. At the date of this agreement, the Workshare Platform is operated using Microsoft Azure from facilities located in Dublin, Ireland, and subject to the standard terms of business available from the Microsoft website at https://azure.microsoft.com/en-gb/support/legal/

15.3. Workshare shall use Commercial Efforts to resource, configure, and manage the Workshare Platform with a specification and capacity appropriate to the Customer's ordinary use of the Solution being hosted.

15.4. Without prejudice to Workshare's obligation to provide such resilience, redundancy, back-up facilities or service levels as may be set out in an Order.Customer acknowledges that Hosting may contain bugs, errors and defects. ACCORDINGLY, THE PRODUCT OR SOLUTION PROVIDED BY WORKSHARE IS ACCEPTED BY CUSTOMER "AS IS" AND "WITH ALL FAULTS, DEFECTS AND ERRORS." WORKSHARE MAKES NO WARRANTY, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, REGARDING THE PRODUCT, SOLUTION, OR ANY OTHER ITEMS OR SERVICES PROVIDED IN CONNECTION THEREWITH, INCLUDING WITHOUT LIMITATION REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, PERFORMANCE, AVAILABILITY, SECURITY, ACCURACY OR COMPLETENESS OF THE PRODUCT OR SOLUTION OR ANY IMPLIED WARRANTY OF MERCHANTABILITY OR QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. WORKSHARE SHALL HAVE NO LIABILITY FOR ANY ERROR, OMISSION OR DEFECT IN THE PRODUCT OR SOLUTION, ANY INABILITY TO USE THE PRODUCT, SOLUTION OR THE SERVICES OR ANY LOSS OF CUSTOMER CONTENT, DATA OR OTHER DAMAGE TO CUSTOMER AS A RESULT OF THE USE OF THE SOFTWARE OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, WORKSHARE DOES NOT REPRESENT OR WARRANT THAT (A) PRODUCT OR SOLUTION SHALL BE COMPATIBLE WITH ANY PARTICULAR CUSTOMER PLATFORM, SOFTWARE OR INTERFACES, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) PRODUCT OR SOLUTION SHALL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS OR ACHIEVE ANY PARTICULAR RESULTS; (C) ANY STORED DATA SHALL BE ACCURATE OR RELIABLE; (D) MINOR ERRORS OR DEFECTS SHALL BE CORRECTED; (E) THAT SOLUTION SHALL BE UNINTERRUPTED OR ERROR-FREE; OR (F) SOLUTION OR THE SERVERS THAT MAKE SOLUTION AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

15.5. Workshare will use commercially reasonable efforts to ensure that the Workshare Platform is available at least 99.9% of the time during any 90 consecutive day period (the sample period).

15.5.1 Availability is determined as follows for any given sample period: 100% x (1 - (total of all Downtime measured in hours per sample period / total hours per sample period))

15.5.2 Downtime means a reported Critical Severity Incident and excludes Maintenance Downtime and External Downtime.

15.5.3 Maintenance Downtime: consists of three categories:

a) Pre-Scheduled Maintenance. As of the signing date of this agreement, Workshare's pre-scheduled maintenance downtime for the Deliverables is once a week between 6.00 am and 8.00 am GMT. Any maintenance activities beyond the regularly scheduled maintenance window will be coordinated with users through reasonable advance notice where possible.

b) Regular Maintenance. Regular maintenance is defined as routine, scheduled maintenance outside the pre-scheduled maintenance described above. Workshare will provide reasonable advance notice to users prior to any regular maintenance.

c) Emergency Maintenance. Emergency maintenance is defined as maintenance that must be performed immediately, regardless of time of day in order to avoid further damage or impairment to the Solution. Workshare may not be able to provide advance notice for such emergency maintenance.

15.5.4 External Downtime. Workshare will not be responsible for any downtime that is attributable to:

a) an act or omission by a third party other than a Workshare subcontractor;

b) the Customer's failure to perform any of its responsibilities set out in this agreement, or Customer's errors, omissions, or breaches of the agreement;

c) infringement of third party intellectual property rights by the Customer;

d) wilful misconduct or beaches of law by the Customer or a third party (other than a Workshare subcontractor);

e) service or resource reductions requested or approved by the Customer;

f) any system problems attributable to Customer's equipment, Customer Material, data or software stack or networking; or

g) Internet downtime, DNS failure, electric power or other utility failures

 

16. Change Control

16.1. The Customer acknowledges that the Products and/or Solution may be subject to continuous development. Workshare will be at liberty to change features and functionality of the Solution from time to time and without prior notice provided that such changes do not materially detract from the Solution.

16.2. If Workshare changes the Product and/or Solution pursuant to clause 16.1 and the Customer (acting reasonably) is unwilling or unable to accept such changes, the Customer is entitled to terminate provision of the relevant Order with effect from the date of the change and receive a refund of any portion of the Subscription Fees or Charges (but not Perpetual License Fees) paid in advance for the period after such date. If the Customer wants to exercise the option to terminate pursuant to this clause 16.2, it must do so within 30 days of becoming aware of the change. Termination pursuant to this clause 16.2 is permitted irrespective of the relevant Subscription Period and such termination is the sole remedy of the Customer.

16.3. If either party wishes to change the Deliverables or other details of an Order, it shall submit details of the requested change to the other in writing, following which Workshare shall, within a reasonable time, provide a written estimate to the Customer of:

16.3.1 the likely time required to implement the change;

16.3.2 any variations to the Charges arising from the change; and

16.3.3 any other impact of the change on the terms of the Order.

16.4. Changes proposed pursuant to clause 16.3 do not take effect unless and until the parties have agreed to the change.

 

17. Charges and Payment

17.1. Unless otherwise stated in an Order:

17.1.1 recurring Charges will be invoiced in advance;

17.1.2 Perpetual License Fees will be invoices upon signing the Order;

17.1.3 Charges for Professional Services will be invoiced monthly in arrears for any Professional Services provided during the month;

17.1.4 the Customer must pay invoices within 30 days of the invoice date.

17.2. Unless otherwise agreed or specified in an Order, Charges will be collected by charging a debit or credit card nominated by the Customer and the Customer hereby consents to all Charges being collected using such card details as the Customer provides. Each Order will specify the Charges and the timing for their payment. Unless terminated by the Customer pursuant to this agreement, the Customer agrees that any Subscriptions and Support and Maintenance be renewed automatically (and the relevant Charges may be collected using subsisting card details).

17.3. All sums are described exclusive of any excise taxes, sales taxes or any other taxes that would apply to Products and Service purchased by Customer, except taxes levied on Customer's income, which will be invoiced and payable at the rate prescribed by law.

17.4. In addition to the Charges, the Customer shall reimburse (without mark-up) any reasonable travel and subsistence expenses incurred in the supply of the Deliverables. Such expenses will be no greater than those which Workshare reimburses to its employees in the course of its own business.

17.5. If the Customer disputes any part of an invoice, it shall notify Workshare promptly in writing of the basis for the dispute and it shall pay any undisputed amount in accordance with clause 17.4. The parties shall promptly negotiate in good faith to resolve the dispute. This clause 17.5 does not prevent Workshare pursuing its legal rights and remedies to enforce payment of its invoices.

17.6. Unless otherwise stated, any Charges set out in a proposed Order provided by Workshare are valid for Orders signed within 30 days.

17.7. The Charges set out in an Order may be increased by Workshare as follows:

17.7.1 Subscription Fees and any recurring Charges associated with a Solution will not be increased during the prevailing Subscription Period and any increases thereafter will be notified at least 30 days in advance;

17.7.2 Charges for Professional Services set out in an Order will not be increased for the particular Professional Services specified in the Order (that is to say Professional Services quantified and requisitioned at the date of the Order);

17.7.3 any increase in Charges will be notified in writing.

 

18. Warranties

18.1. Workshare warrants that:

18.1.1 it is lawfully entitled to supply the Deliverables;

18.1.2 subject to the Customer's compliance with its obligations in this agreement, use of the Deliverables by the Customer in accordance with the terms of this agreement will not infringe the Intellectual Property Rights of any third party; and

18.1.3 Products will be checked for viruses and malware prior to release.

18.2. Workshare warrants that Products will operate during the Warranty Period substantially in accordance with the documentation published by Workshare. The Warranty Period for each Product commences upon supply of the Product (or, if Acceptance Tests are undertaken, upon satisfactory completion of Acceptance Tests) and continues for:

18.2.1 90 days if the Product is supplied with a Perpetual License;

18.2.2 the period of the Support and Maintenance if the Product is supplied with a Perpetual License and the Customer has bought Support and Maintenance;

18.2.3 the Subscription Period if the Product is supplied with a Subscription, whichever is the later.

18.3. If a Product fails to perform substantially in accordance with the documentation published by Workshare in breach of clause 18.2, Workshare will have no liability for a breach of clause 18.2 if Workshare remedies the breach within 14 days of the Customer notifying Workshare and expressly referring to this clause 18.

18.4. Workshare does not warrant that Solutions will perform completely uninterrupted or error-free.

18.5. All other representations, conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this agreement or any collateral contract, whether by statute, common law or otherwise, are excluded to the extent permitted by law.

 

19. Customer Obligations

19.1. The Customer shall:

19.1.1 provide and maintain at its own cost all the Customer Facilities it requires to make use of the Deliverables.

19.1.2 provide Workshare with prompt co-operation to facilitate Workshare's performance of any Order in a timely and efficient manner, including the provision of such information as Workshare may request and ensure that such information is accurate in all material respects; and

19.1.3 appoint a Customer representative in relation to the Deliverables with authority to bind the Customer contractually.

19.2. If Workshare makes a written request to the Customer for information or decisions that are not provided within two weeks of such request, Workshare may increase the Charges to represent any increase in costs caused by the delay.

 

20. Intellectual Property Rights

20.1. Nothing in this agreement or any Order transfers ownership of creates any implied license of any Intellectual Property Rights.

20.2. Workshare Rights.As between the parties, Workshare owns all right, title and interest in and to: (i) the Solution; (ii) all modifications of and Updates to the Solution; (iii) all derivative works of the Solution; and (iv) any and all Intellectual Property Rights embodied in any of the foregoing. All suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any third party to Workshare related to the Solution or any of Workshare's other products or services (collectively referred to as "Contributions"), are owned by Workshare, the Customer shall not be entitled to any compensation in connection therewith, and the Customer hereby assigns to Workshare all Intellectual Property Rights and other rights in or to any and all Contributions. The Workshare name and logo, are trademarks of Workshare, and no right or license is granted to use them.

20.3. Customer Rights. As between the parties, the Customer owns all right, title and interest in and to: (i) the Customer Material; (ii) all modifications to the Customer Material; (iii) all derivative works of the Customer Material; and (iv) any and all Intellectual Property Rights embodied in any of the foregoing.

20.4. Workshare shall defend, indemnify, and hold the Customer harmless from and against all third party claims, actions, proceedings, damages, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorney fees) arising out of any infringement by the Product or Solution (excluding any Customer Material or other third party components) of a valid U.S. Patent, copyright or trade secret. If the Product or Solution, or any component thereof, are found to be infringing, or if Workshare believes that the Product or Solution may be found to be infringing, Workshare may, at its option, (a) obtain the right for the Customer to continuing use of the infringing component of the Product or Solution, (b) replace or modify the infringing Product or Solution so that it becomes non-infringing, or (c) refund to the Customer any Fees prepaid by the Customer for future services, prorated relating only to the infringing portion of the Solution. Customer shall cease using the infringing portion of the Product or Solution. THE PROVISIONS OF THIS SECTION SET FORTH THE ENTIRE LIABILITY OF WORKSHARE AND THE EXCLUSIVE REMEDY OF THE CUSTOMER FOR ACTUAL OR ALLEGED INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR ANY OTHER INTELLECTUAL PROPERTY RIGHT.

20.5. Workshare's obligation to indemnify is subject to and conditioned on Customer performing all of the following::

20.5.1 the Customer notifies Workshare as soon as practicable on becoming aware of any actual or alleged breach of any third party Intellectual Property Rights;

20.5.2 the Customer does not make any admission of liability, agreement or compromise in relation to a claim;

20.5.3 the Customer permits Workshare to control any negotiation, dispute resolution or proceedings arising in connection with the claim;

20.5.4 the Customer provides, at Workshare's cost, such reasonable assistance, information and evidence as Workshare requires in connection with the claim; and

20.5.5 the Customer is not in breach of this agreement.

20.6. The Customer shall defend, indemnify, and hold Workshare harmless from and against all third party claims, actions, proceedings, damages, costs, liabilities, losses and expenses (including, but not limited to, reasonable attorney fees) arising out of or related to: (i) the Customer Material; (ii) the Customer's misuse of the Solution; or (ii) any violation by the Customer of applicable law.

 

21. Confidential information

21.1. If either party receives the other party's Confidential Information, it shall:

21.1.1 not use it for any purpose other than performance of this agreement;

21.1.2 keep it secret and protect it at least as well as it would protect its own Confidential Information;

21.1.3 disclose it only to those of its employees, subcontractors and advisers who need to know the Confidential Information for the performance of this agreement;

21.1.4 seek prior written consent before disclosing it to anyone other than its employees, subcontractors and advisors even if such disclosure is necessary for performance of this agreement;

21.1.5 inform anyone to whom it discloses the Confidential Information that the information is confidential and take all reasonable steps to ensure that such recipients will comply with the terms of this agreement;

21.1.6 after performance of the relevant Order or upon termination of this agreement, cease to use altogether and return or (at the option of the other party) destroy or permanently erase all copies of the Confidential Information;

21.1.7 inform the other party immediately if it becomes aware or suspects that an unauthorised person knows the Confidential Information.

21.2. The obligations in clause 21.1 will not apply to Confidential Information which:

21.2.1 has ceased to be confidential through no fault of either party;

21.2.2 was already in the possession of the recipient before being disclosed by the other party as can be verified by the production of written evidence of such possession;

21.2.3 has been lawfully received from a third party who did not acquire it in confidence; or

21.2.4 is required to be disclosed by law, provided that the relevant party shall take all reasonable steps to notify the other party in good time before such disclosure and gain assurances as to confidentiality from the body to whom the information is to be disclosed.

21.3. Each party's duty of confidence continues after termination of this agreement.

 

22. Press releases and marketing information

22.1. The Customer acknowledges that the Charges are determined on the basis that Workshare will have the benefits of marketing the Solution as set out in this clause 22.

22.2. The Customer consents to Workshare naming the Customer in Workshare's marketing media together with a short statement describing the Customer's use of the Solution.

22.3. Workshare may use the details of Internal and External Users for marketing communications relating to Workshare Solutions.

 

23. Data protection

23.1. Each party shall comply with the Data Protection Law.

23.2. In this clause 23, references to any words or phrases defined in the Data Protection Law have the meanings set out in the Data Protection Law.

23.3. With respect to the parties' rights and obligations under this agreement, the parties agree that the Customer is the data controller and Workshare is the data processor.

23.4. Each Order sets out the duration of processing, the purpose of the processing, and the types and categories or personal data and data subjects. Such particulars are stated by the Customer and acknowledged by Workshare.

23.5. Workshare shall:

23.5.1 process the personal data only on documented instructions from the Customer, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by Union or Member State law to which Workshare is subject; in such a case, Workshare shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;

23.5.2 ensure that persons authorised to process the personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

23.5.3 takes all measures and implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons;

23.5.4 if there is a personal data breach in relation to any personal data, notify the Customer without undue delay and, where practicable, within 48 hours and thereafter assist the Customer with its obligations to notify the personal data breach to a supervisory authority;

23.5.5 provide the Customer with reasonable assistance to undertake data protection impact assessments in relation to processing of personal data pursuant to this agreement;

23.5.6 at the choice of the Customer, delete or return all personal data (and thereby ensure the deletion or return of all personal data) to the Customer after termination of the Order;

23.5.7 makes available to the Customer all information necessary to demonstrate compliance with the obligations in this clause 23 and allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer.

23.5.8 immediately notify the Customer if, in Workshare's opinion, an instruction infringes Data Protection Law.

23.6. To the extent that Workshare uses another processor to process any personal data, it is agreed that:

23.6.1 the sub-processors are set out in the relevant Order;

23.6.2 such sub-processors are common to all Workshare customers using the relevant Deliverables;

23.6.3 from time to time, Workshare may appoint different sub-processors;

23.6.4 it is not practicable for Workshare to provide each of its customers with the opportunity to approve the appointment of sub-processors;

23.6.5 Workshare shall impose on such processor the same data protection obligations as set out in clause 23.5;

23.6.6 Workshare shall notify the Customer of any changed or new sub-processors or any material change to the processing done by sub-processors and the parties agree that:

23.6.7 if Workshare notifies the Customer of any changes to sub-processors, the Customer will be entitled to terminate this agreement (without liability for either party, and such termination will be deemed to be a no-fault termination) if the Customer has reasonable grounds for objecting to such changes due to the changes causing or being likely to cause the Customer to be in breach of the Data Protection Law.

23.7. The Customer acknowledges that the primary purpose of the Deliverables is not to facilitate processing of personal data and (except for login details for Internal Users and External Users), the Deliverables do not systematically identify whether data originating from the Customer includes any personal data at all. Workshare merely performs this agreement on the assumption that data originating from the Customer might contain personal data. It is the Customer's responsibility to:

23.7.1 assess whether the Deliverables are suitable for the Customer's intended use having regard to the personal data the Customer decides to process using the Deliverables;

23.7.2 determine when personal data ought to be deleted or when processing of personal data ought to cease;

23.7.3 take any steps to comply with the rights of data subjects for access to personal data, rectification or erasure of personal data, data portability, rights to be forgotten, or to act upon any notices from data subjects; and

23.7.4 keep a record of processing with any greater information than that which is evident from this agreement.

23.8. Workshare shall provide such assistance with the matters described in clause 23.7 as the Customer reasonably requires or as Data Protection Law mandates but such assistance will be treated as a request for Professional Services.

23.9. If relevant, under GDPR, Workshare shall not process personal data (or permit any sub-processor to process personal data) outside the European Economic Area without ensuring the personal data is afforded adequate protection within the meaning of the Data Protection Law.

 

24. Limitations and exclusions of liability

24.1. Notwithstanding any other provisions of this agreement, neither party excludes or limits its liability for:

24.1.1 death or personal injury caused by its negligence or the negligence of its officers, employees, contractors or agents;

24.1.2 fraud or fraudulent misrepresentation;

24.1.3 in the case of Workshare, the indemnity in clause 20.44;

24.1.4 in the case of the Customer, the indemnity in clause 12.2 or payment of Charges properly due in accordance with this agreement; or

24.1.5 any liability that cannot lawfully be excluded.

24.2. Save as expressly set out in clause 24.1, neither party shall be liable for any loss of profit, loss of business, loss of goodwill, loss of savings, loss of data, claims by third parties, loss of anticipated savings, whether direct or indirect, or for any indirect loss or consequential loss whatsoever and howsoever caused (even if caused by that party's negligence and/or breach of contract and even if that party was advised that such loss would probably result).

24.3. Except as expressly set out in clause 24.1, each party's total liability for any claims, losses, damages or expenses whatsoever and howsoever caused (even if caused by its negligence and/or breach of contract) will be limited to a maximum sum equal to:

24.3.1 a sum calculated using the Charges actually paid by the Customer to Workshare under the relevant Order giving rise to such liability calculated as follows:

Once-only Charges (including Perpetual License Fees and Charges for Professional Services) invoiced pursuant to the Order

+ Subscription Fees for the relevant Solution for 12 months (at the rate specified in the Order)

+ any other recurring Charges stated in the relevant Order for 12 months (at the rate specified in the Order)

24.3.2 or $15,000; whichever is the greater.

24.4. This agreement is enforceable by Workshare and by the Customer and their successors in title and permitted assignees. There are no third party beneficiaries to this agreement.

 

25. Termination

25.1. Either party may terminate this agreement by giving thirty (30) days prior written notice to the other party. After such notice takes effect, the parties will not agree any new Orders but, except as set out in clause 25.2, termination of the agreement will not affect any subsisting Orders.

25.2. Either party may terminate any or all Orders by written notice to the other party:

25.2.1 at any time with written notice of termination of not less than thirty (30) days and, if the Order specifies a Solution subject to a Subscription Period, the notice expires after the Subscription Period;

25.2.2 forthwith if the other party commits any material breach of the terms of the agreement and, in the case of a breach capable of being remedied, such breach is not remedied within 30 days of a written request to do so (such written request expressly referring to the threat of termination pursuant to this clause); and

25.2.3 forthwith if the other party becomes unable to pay its debts as they come due, files for bankruptcy or other protection from any creditors or otherwise commits or threatens to commit or is threatened with any act of insolvency or any analogous procedure or step is taken in any jurisdiction.

25.3. Termination of this agreement or any Order will not affect any accrued rights or liabilities of either party or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after termination.

 

26. Force Majeure

Neither party will be liable for any delay or failure in performing its obligations under this agreement if caused by circumstances beyond its reasonable control (including, in the case of performance by a subcontractor, circumstances beyond the reasonable control of the subcontractor). The party in default must notify the other party promptly in writing of the reasons for and likely duration of the failure or delay. Performance of the parties' obligations will be suspended during the period that the circumstances persist.

 

27. Anti-Bribery
Workshare has an Anti-Bribery and Anti-Corruption policy. Workshare shall maintain and comply with the policy. Workshare shall provide a copy of the prevailing policy upon request.

28. Assignment

Neither Party may assign this agreement without the prior written consent of the other (such consent not to be unreasonably withheld or delayed). Notwithstanding the foregoing, Workshare may assign this agreement to its affiliates or, in the case of a merger or acquisition, its successor, without the prior written consent of Customer. Any purported assignment in breach of this agreement is null and void.

 

29. Amendment and waiver

29.1. No amendment of this agreement will be valid unless it is in writing and signed by or on behalf of each of the parties by a duly authorised officer of each of the parties.

29.2. The failure to exercise, or delay in exercising, a right or remedy under this agreement will not constitute a waiver of the right or remedy, or a waiver of any other rights or remedies.

 

30. Severance

30.1. If any provision of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal the other provisions will remain in force and effect.

30.2. If any invalid, unenforceable or illegal provisions would be valid, enforceable or legal if some part of it were deleted, the provision will apply with whatever modification is necessary to give effect to the commercial intention of the parties

 

31. Entire agreement

This agreement constitutes the entire agreement between the parties and supersedes any arrangements, understanding or previous agreement between the parties relating to the subject matter of this agreement.

Each of Customer and Workshare represents and warrants to the other that it has due authority to enter into and be bound by the terms of this agreement.

 

32. Governing law and jurisdiction

This agreement and any dispute or claim arising out of or in connection with it (including any non-contractual disputes or claims) are governed by the laws of the State of New York, excluding any choice of laws or rules that might otherwise be applicable. The parties expressly consent to the venue and jurisdiction of the Federal or state courts located in New York, New York, with respect to any actions that may arise out of, or relate to, this agreement or the Services. The United Nations Convention on the International Sale of Goods shall not apply to these Terms of Use or to the Services. This agreement may be executed in counterparts, which together shall constitute one and the same agreement.