EULA - US VERSION

WORKSHARE COMMERCIAL CLICK-THROUGH AGREEMENT

THIS WORKSHARE COMMERCIAL CLICK-THROUGH AGREEMENT (THIS “AGREEMENT”) IS BETWEEN WORKSHARE INC OF 44 MONTGOMERY STREET, SUITE 1280, SAN FRANCISCO, CA 94104 ("WORKSHARE") AND YOU. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
BY INSTALLING THIS PRODUCT, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, ACCEPT THE USE OF INFORMATION INCLUDING COOKIES, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS OF USE REFERRED TO IN SECTION 2(C) BELOW TO THE EXTENT APPLICABLE.
IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, WORKSHARE IS UNWILLING TO LICENSE THE SOFTWARE TO YOU AND YOU MUST EXIT THE INSTALLATION OF THIS PRODUCT.
THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH YOU INSTALL THIS PRODUCT. FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) THAT YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF CONSTITUTES “YOU”.

1. Background

Workshare develops, maintains and provides access to a certain software solution. In this Agreement, “Software” means (a) the object code version of the "Workshare" branded computer program which you have properly paid the license fee for, (b) the documentation accompanying the computer program, and (c) any updates of such program and documentation. You wish to use the Software. The Software may be downloaded from Workshare’s site identified by the URL www.workshare.com (“Website”).

2. License

(a) Server Software License. If You have licensed the Software for installation on a server, subject to the terms and conditions of this Agreement, Workshare grants to You a non-exclusive, revocable, non-transferable, personal license to install and use the Software for Your internal purposes on a single server that is owned or controlled by You. The number of devices with access to the Software from a server with a properly licensed copy of the Software must not exceed the number of devices for which You have properly paid license fees, or other capacity limitations on which Your Software pricing is based. 

(b) Client Software License. If You have licensed the Software on a per-device basis, subject to the terms and conditions of this Agreement, Workshare grants to You a non-exclusive, revocable, non-transferable, personal license to install and use one copy of the Software on each device that is owned or controlled by You and for which You have properly paid license fees.

(c) Cloud Based Software. To the extent that any Software licensed by You also allows access to any software and/or services provided by Workshare online, Your use of such online software and/or services shall also be subject to Workshare's Terms of Use found at http://www.workshare.com/terms-of-use and any other applicable terms and conditions that may be specified by Workshare. In addition if You have purchased a license for Workshare 9, the restrictions specified in the Terms of Use relating to ‘Named Users’ will also be applicable to Your use of Workshare 9 regardless of whether accessed online or offline.

3. License R estrictions

Unless expressly otherwise set forth in this Agreement, You will not: 

(a) modify, translate or create derivative works of the Software unless allowed by applicable law;

(b) publicly display or publicly perform the Software;

(c) decompile, reverse engineer or reverse assemble any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software unless allowed by applicable law;

(d) sell, assign, sublicense, rent, lease, loan, provide, distribute or otherwise transfer all or any portion of the Software;

(e) make, have made, reproduce or copy the Software;

(f) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Software;

(g) exceed the capacity or concurrent user limitations for the Software license purchased by You;

(h) circumvent or attempt to circumvent any methods employed by Workshare to control access to the components, features or functions of the Software; and

(i) cause or permit any other party to do any of the foregoing. There are no implied licenses in this Agreement, and Workshare reserves all rights not expressly granted under this Agreement. 

4. Ownership

As between the parties and subject to the grants under this Agreement, Workshare owns all right, title and interest in and to the Software and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively, “Intellectual Property Rights”) embodied therein. 

5. Payment Procedures and Late Payments

 License Purchase Online. If You have purchased a license for the Software online, you will be charged the license fees for the first 12 months of the applicable subscription plans selected by you on the Effective Date. Thereafter, for subsequent years, the applicable license fees will be automatically charged in advance by Workshare to Your credit or debit card on file on or around the anniversary of the Effective Date until the license for the Software is terminated. By submitting your credit or debit card details You expressly consent to the charge of any recurring applicable license fees. If payment of such fees cannot be processed using the stored credit or debit card, You agree to promptly provide another accepted payment method to Workshare, otherwise Section 5(d) shall be applicable. 

(b) License Purchase Offline. If You have purchased a license for the Software offline, you will be invoiced for the license fees for the first 12 months of the applicable subscription plans selected by you on or around the Effective Date. Thereafter, for subsequent years, you will be invoiced for the applicable license fees on or around the anniversary of the Effective Date until the license for the Software is terminated. All invoices issued by Workshare will be due and payable within thirty (30) days of the date of invoice.

(c) License Fee Variation. Workshare may increase the applicable license fees and otherwise change its fee structure at any time and from time to time by posting such revised fees on the Website. You are advised to check the Website regularly for such changes. Workshare may also give email notice of such changes to the email address provided by You during registration, as may be updated by You.

(d) Failure of Payment. In addition to other remedies available to Workshare, any payment not received by Workshare when due will accrue interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable usury law, whichever is less. Payment of such interest will not excuse or cure Your default for late payment. In addition, failure of You to pay license fees or other amounts due under this Agreement fully after the applicable due date shall be deemed a material breach of this Agreement, justifying immediate de-functioning, suspension and/or termination of Your use of the Software. Any such suspension shall not relieve You of Your obligation to pay any amounts due, plus late fees as provided for herein. You shall reimburse Workshare for all collection expenses incurred by Workshare, including, without limitation, agency fees, attorneys' fees, and costs.

(e) Payment Currency All payments hereunder will be made in the currency stated on the Website at the time of the Order on in the invoice (as applicable).

(f) Taxes. You will pay, and indemnify and hold Workshare harmless from, any sales, use, excise, value added or similar taxes and all government permit or license fees, and any costs associated with the collection or withholding thereof, including penalties and interest. 

6. Audit

Workshare shall have the right to audit your compliance with the terms of this Agreement and the use restrictions on the Software, including the restriction on the number of authorized devices with access to the Software or number of copies of the Software, as applicable. You agree to grant access to Workshare to facilities, equipment, books, records and documents and to otherwise reasonably cooperate with Workshare in order to facilitate any such audit.

7. Nondisclosure

“Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Workshare to You concerning or related to this Agreement, Workshare and its affiliates (whether before, on or after the Effective Date) which You know or should know, given the facts and circumstances surrounding the disclosure of the information to You, is confidential information of Workshare or its affiliates. You will, during the term of this Agreement, and thereafter maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted herein. You will use the same degree of care in protecting the Confidential Information as You use to protect Your own confidential information from unauthorized use or disclosure, but in no event less than reasonable care. In addition, You: (a) will not reproduce Confidential Information, in any form, except as required to accomplish Your obligations under this Agreement; and (b) will only disclose Confidential Information to Your employees and consultants who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such employees and consultants have executed a non-disclosure agreement with You with terms no less restrictive than the non-disclosure obligations contained in this section. Confidential Information will not include information that: (i) is in or enters the public domain without breach of this Agreement through no fault of You; (ii) You can reasonably demonstrate was in Your possession prior to first receiving it from Workshare; (iii) You can demonstrate was developed by You independently and without use of or reference to the Confidential Information; or (iv) You receive from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by You to Workshare with respect to the Software (collectively, “Feedback”) will constitute Confidential Information. Further, Workshare will be free to use, disclose, reproduce, license and otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.

8. Workshare Limited Warranty

Workshare warrants that for a period of ninety (90) days after the Effective Date, the Software, if operated as directed and used in the environment described in the documentation accompanying the Software, will substantially achieve the functionality described in such documentation. Workshare further warrants that it has used commercially available virus checking software to check that the Software is free of viruses and other malicious code prior to its supply to You. To the maximum extent permitted by applicable law, Workshare and its suppliers’ entire liability and Your exclusive remedy for failure of the Software to conform to the foregoing warranty is, at Workshare’s option: (a) to receive from Workshare repaired or corrected Software or instructions as to how to achieve substantially the same functionality with the Software as described in the accompanying documentation; or (b) upon the return of all copies of the Software to Workshare, to receive a refund of the license fees paid by You for the Software. YOU HAVE NO OTHER RIGHTS OR REMEDIES AGAINST WORKSHARE FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8.

9. Disclaimer

EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. WORKSHARE AND ITS RESELLERS AND SUPPLIERS DO NOT WARRANT THAT ANY OF THE SOFTWARE OR SERVICES WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. WORKSHARE AND ITS RESELLERS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE AND SERVICES WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY OR QUALITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WORKSHARE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. YOU FURTHER AGREE THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 8 OR OTHERWISE, YOU WILL NOT HOLD WORKSHARE LIABLE FOR ANY FAILURE OF THE SECURITY FUNCTIONALITY OF THE SOFTWARE TO RESTRICT OR PREVENT THE SENDING OF DOCUMENTS OUTSIDE THE EMAIL SYSTEM ON WHICH THE SOFTWARE IS INSTALLED, IF SUCH FUNCTIONALITY IS INCLUDED IN THE SOFTWARE, AND YOU WILL NOT RELY ON THE SOFTWARE OR ITS SECURITY FUNCTIONALITY TO RESTRICT OR PREVENT THE SENDING OF DOCUMENTS OUTSIDE ANY EMAIL SYSTEM.

10. Indemnification

Workshare will defend and hold You harmless from and against any judicial proceeding based upon a third party claim that the Software for which You have paid the applicable license fees infringes any U.S. patent. U.S. trademark, copyright or trade secret and will indemnify You against any damages, judgments and costs finally awarded against You in such proceeding; provided You: (a) give Workshare prompt written notice of the claim; (b) permit Workshare to control the defense and settlement of the claim and do not do anything which may prejudice the defense of the claim; and (c) cooperate with Workshare in the defense and settlement of the claim. Workshare's defense and indemnification obligations will not apply to any actual or alleged infringement based upon: (i) modification of the Software by anyone other than Workshare, (ii) abuse, misapplication or casualty loss; (iii) use of the Software in combination with any other program or device, if such infringement would have been avoided but for such modification or combination, or (iv) failure to install or use any error corrections, fixes or other updates furnished by Workshare, if such infringement could have been avoided by such installation or use. In the event any component of the Software licensed by You or Your use of such component is held to infringe or in Workshare’s reasonable judgment is likely to infringe any third party intellectual property right, Workshare may, at its option, (x) obtain a license for You to continue to use such component, (y) modify the component so that it is noninfringing, or (z) terminate this Agreement as it pertains to such component and refund a portion of the license fee paid by You for such component prorated over three (3) years from the date of purchase. 

11. Limitation of Liability

EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL WORKSHARE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WORKSHARE HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL WORKSHARE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED IN ANY CONSECUTIVE 12 MONTH PERIOD COMMENCING ON THE EFFECTIVE DATE OR ANNIVERSAY THEREOF (EACH SUCH 12 MONTH PERIOD BEING A "CONTRACT YEAR") THE AGGREGATE OF THE AMOUNTS PAID BY YOU TO WORKSHARE IN RELATION TO THAT CONTRACT YEAR, IF ANY, UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND SECTIONS 8, 9 and 11 WILL NOT APPLY ONLY TO THE EXTENT THAT APPLICABLE LAW REQUIRES LIABILITY NOTWITHSTANDING THE LIMITATIONS OR EXCLUSIONS THEREIN.

12. Third Party Suppliers

The Software may include software or other code distributed under license from third party suppliers. You acknowledge that such third party suppliers disclaim and make no representation or warranty with respect to the Software or any portion thereof and assume no liability for any claim that may arise with respect to the Software or Your use or inability to use the same.

13. Termination

This Agreement will remain in effect from the Effective Date for the duration of the subscription period determined by the applicable order submitted by You and accepted by Workshare, unless otherwise terminated in accordance with this Section 13; provided, however, that any term Software License will automatically renew for subsequent one-year terms, at the then-current standard terms and conditions, Subject always to Section 5, upon each anniversary of the initial Effective Date, unless either party notifies the other in writing of its intent to terminate at least 60 (sixty) days prior to the termination of the then-current subscription period. Without prejudice to Section 5(c) and unless otherwise agreed between the parties, upon any such automatic renewal for any one-year term in accordance with this Section 13, Workshare may increase the applicable license fees by the greater of five per cent (5%) or the index value of the Consumer Prices Index ("CPI") then applicable (by reference to the index value of the CPI as published by the United States Department of Labor on the nearest date to the date of the end of the then-current subscription period).

Without prejudice to any other rights, Workshare may terminate this Agreement if You do not abide by the terms and conditions contained herein. Upon expiration or termination of this Agreement: (a) all rights granted to You under this Agreement will immediately cease and you agree to cease using the Software; and (b) You will promptly provide Workshare with all Confidential Information then in Your possession or destroy all copies of such Confidential Information, at Workshare’s sole discretion and direction. In addition to all definitions and this sentence, the following sections will survive any termination or expiration of this Agreement: 3, 4, 6, 7, 9, 11 and 13-20.

14. Governing Law; Venue

This Agreement will be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions to the contrary. The 1980 U.N. Convention on Contracts for the International Sale of Goods or any successor thereto does not apply. The parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in the County of San Francisco, California. The parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.

15. English Language

It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C'est la volonté expresse exigé par les parties que cette convention et tous les documents y afférents, soient rédigés en anglais seulement.

16. Attorneys' Fees

In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys' fees.
17. U.S. Government End Users, Compliance with Laws and Export Controls.
(a) U.S. Government End Users. The Software and related documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Software and related documentation are being provided to U.S. Government end users (a) only as a Commercial Item, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
(b) Compliance with Laws. You agree that you shall only use the Software in accordance with applicable laws and will not use, distribute or transfer the Software in any manner which will place you or Workshare in breach of any applicable export control laws or regulations of any applicable jurisdiction.
(c) Export Control: Workshare provides Software and uses technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. Without prejudice to Section 17(b) You acknowledge and agrees that the Software shall not be used in, and none of the underlying information or technology may be transferred or otherwise exported or re-exported to, countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice.

18. Privacy

(a) Software Interactions & Personal Information. The Software may communicate with Workshare or its trusted processors for the purposes of (i) checking for and performing updates, (ii) ensuring that you are using the Software with a valid license that Workshare has created and directly provided to you, and (iii) providing useful information about the use of the Software so as to make informed product decisions, adjusting future products and services, and permit user segmentations.. The information collected (collectively referred to as "Personal Information") relates to your (i) device characteristics (e.g. unique ID number of your device, type and version of your Operation System), (ii) your account information (e.g. username), (iii) your local network (e.g. MAC address), and/or (iv) your interactions with the Software. Workshare shall not provide any of the information it gathers in connection with this process to any third party, except (i) as may be required by law or legal process, (ii) to enforce compliance with the license requirement described, or (iii) if processors acting on behalf of Workshare are involved. You hereby consent to the transfer of such Personal Information to countries located outside the European Economic Area (EEA). You may access, update, correct, or suppress Your Personal Information (under conditions) by sending, at any time, a request to Workshare at the following address: 20 Fashion St, London E1 6PX.
(b) Cookies or similar technologies. The Software may use cookies or potential similar technology (collectively referred to as "Cookies"). Cookies are text files containing small amounts of information which are downloaded to Your device when you use the Software. Cookies are then sent back to Workshare or its trusted processors on each subsequent use. You can find more information about cookies at: www.allaboutcookies.org. Workshare uses Cookies for the purposes mentioned in the above section. If You don't want to receive cookies, you can alter the Customer Experience Reporting settings from the Workshare Configuration Manager.

19. Acknowledgment on Use of Information

You acknowledge that Workshare may use your company name and reproduce your corporate logo, if any, and describe transaction details (including, without limitation, number of users, application name and business use case and the business overview) in its internal presentation, external presentations, website, internal and external case study success stories and press communications and other marketing, communications, and promotional materials (including materials that are shared with other prospective customer and media outlets). This clause will serve as the your agreement that notwithstanding any provision to the contrary in any agreement with Workshare and/or its affiliates.

20. Miscellaneous

This Agreement is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. You may not transfer Your rights under this Agreement to any third party and no third party shall obtain any rights under this Agreement to enforce any of its terms. Workshare may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. Any notice, demand or communication required or permitted to be given by any provision of this Agreement will be deemed to have been sufficiently given or served for all purposes if: (a) delivered personally; or (b) deposited with a pre-paid messenger, express or air courier or similar courier; or to like equipment that receives and reproduces such notice. Notices will be deemed to have been received (i) in the case of personal delivery, upon receipt, and (ii) in the case of messenger, express or air courier or similar courier, two days after being deposited, No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.