"Applicable Law(s)" means any applicable laws, rules, or regulations of any U.S. or foreign national, state, cantonal, communal, provincial, or local jurisdiction, including without limitation any education, privacy, foreign exchange, tax, export control, or employment laws or regulations.
"Customer Content" means all text, graphics, pictures, data, documents, information and other materials of any kind posted on, stored within or made available through the Service by Customer.
"Effective Date" means the date when Workshare accepts an order for Services from the Customer or otherwise when the Customer first installs uses the Services.
"Intellectual Property Rights" means unpatented inventions, patent applications, 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.
"License Fee(s)" means the fees payable by Customer to Workshare for the right to use the Service on the Site.
"Named Users" means the specific individual employees of Customer identified by name (at the time of registration or by subsequent amendment to the Named Users list) for whom Customer has paid the applicable License Fee and who are licensed to access and use the Services.
"Personal Information" means information that specifically identifies an individual (such as a name, address, telephone number, e-mail address, student ID number, credit card or other account number) or that is associated with an identifiable person (such as grades, demographic information or information about a person's activities when such information is linked to personally identifying information), including but not limited to such information when contained within the Customer Content. Personal information does not include "aggregate" information, which is data collected about the use of the Service or categories of individuals, from which any personal information has been removed.
"Service Providers" means third party vendors, consultants and other service providers who are engaged by or working with us in connection with providing the Services.
"Services" means, individually or collectively, the Workshare branded services to which Customer has subscribed and which are provided by Workshare as a software-as-a-service application, together with all related services and components provided by Workshare.
"Site" means the Workshare website through which the Services are accessed.
"Software" means the proprietary Workshare software, whether accessed online or downloaded by Customer that is used in connection with the Services.
"Tax(es)" means any taxes, fees, charges or duties and any interest, penalties, fines or other additions to tax, including, without limitation, sales, use, excise, value added, goods and services, stamp, import, export, customs, transfer, and similar taxes imposed by any domestic or foreign taxing authority, instrumentality, or agency.
"Technology" means all of Workshare's proprietary process and technology, including, without limitation, the Services, software, hardware, documentation, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information, made available to Customer by Workshare in providing the Services.
"Workshare System" means the computer equipment, servers, software, network equipment and components, functions, protocols, methodologies, and processes used by Workshare to operate, support, and provide the Services. Workshare may use third parties to provide all or a part of the Workshare Systems.
2. Registration and Account Information
Customer must register and create an account with Workshare as a condition to using the Service. In order to register with Workshare, Customer must provide complete and accurate information as requested in the registration process which includes: (a) a valid email address, which will be used as a unique identifier for Customer's account, (b) Customer's name, (c) the postal address of Customer's principal place of business, and (d) a password. Customer will maintain and update all information provided by Customer during registration as required to keep it current, complete and accurate. If Customer intentionally provides any inaccurate information or fails to keep such information current, complete and accurate, or if Workshare has reasonable grounds to suspect that Customer's use of the Services is fraudulent, Workshare may suspend or terminate Customer's account and Customer's right to use the Services. Customer shall maintain the security and confidentiality of all passwords issued to Customer. Subject to section 3.1 where access may be provided to Named Users, Customer agrees not to transfer or share Customer's user name or password, or lend or otherwise transfer Customer's use of or access to the Services, to anyone. Customer is responsible for any and all activities that occur under Customer's account. Customer shall notify Workshare as soon as reasonably practicable of any unauthorized use of Customer's account or any other breach of security related to Customer's account or the Services.
3. Grant of Rights
4. Obligations of Customer
4.1 Customer Systems. Customer is solely responsible for providing and maintaining, at its own expense, all equipment, facilities and services necessary to access and use the Services, including, without limitation, computer hardware and software, modems, telephone service and Internet access.
4.2 Customer Content. Customer is solely responsible for all Customer Content, including without limitation the accuracy, quality, integrity, completeness, legality, reliability, appropriateness, and intellectual property ownership of such Customer Content. Workshare shall not be responsible or liable in any manner for such Customer Content. Customer shall not, and shall not permit any Named User to, upload, transmit, use, or post on or in connection with the Services, any Customer Content that (i) infringes upon or violates any third party's Intellectual Property Rights, rights of publicity, rights of privacy, contract or other rights; (ii) is defamatory obscene, pornographic, indecent, harassing, threatening, inflammatory, or fraudulent; (iii) violates any Applicable Law, or (iv) that would otherwise create liability for Workshare or its Service Providers or cause any harm to anyone. Workshare reserves the right to delete or block access to any Customer Content at any time in its sole discretion if it receives any notices or otherwise believes that such Customer Content may be in violation of Applicable Law or these Terms or Use or may otherwise violate the rights of, or cause any harm or liability of any kind to, Workshare or any third party. Customer shall make sure that the Customer Content does not exceed the specified storage limits. If specified storage limits are exceeded by the Customer, Workshare reserves the right to charge the Customer for the storage used (including using the stored credit or debit card details of the Customer, if applicable) and the Customer will pay such sums when required by Workshare. Irrespective of the specified storage limits Workshare reserves the right to implement limits on the amount of storage available to a Customer and the number of users with whom the Customer may share content.
4.3 License to and Treatment of Customer Content. Customer hereby grants to Workshare a nonexclusive, non-transferable, royalty-free, worldwide license to reproduce, distribute, display, perform, and modify the Customer Content solely as necessary to provide the Services as set forth in this Agreement. Except for the licenses granted in this Agreement, Customer reserves ownership of all right, title, and interest in and to all Customer Content. Workshare undertakes that it will only use the Customer Content to provide the Services to the Customer and that it will take reasonable technical and organisational measures to protect the Customer Content from unauthorised access, damage or destruction.
4.4 Customer Support. Workshare agrees that it will provide the same level of support to the Customer as provided to other customers of Workshare of a similar standing who have purchased the same subscription as the Customer. Workshare further agrees that it will provide the Customer with reasonable support to enable the Customer to recover the Customer Content upon termination or expiry of this Agreement, to the extent described in Section 9.3.
4.5 Compliance with Laws. In using the Services, Customer shall comply, and shall make sure that it's Named Users comply, with all Applicable Laws.
6. Intellectual Property Ownership
6.2 Customer Rights. As between the parties, Customer owns all right, title and interest in and to: (i) the Customer Content, including all Personal Information; (ii) all modifications to the Customer Content; (iii) all derivative works of the Customer Content; and (iv) any and all Intellectual Property Rights embodied in any of the foregoing.
Each party agrees not to use or disclose to third parties any Confidential Information of the other party, except that Workshare may use and disclose Customer's Confidential Information as necessary to carry out the Services, including to Service Providers and others who assist Workshare in providing the Services. Notwithstanding the foregoing, either party may disclose the other party's Confidential Information in response to a judicial or governmental order, provided that such party shall where reasonably practicable: (i) provide the other party at least thirty (30) days prior notice of any intended disclosure; and (ii) assist the other party in obtaining a protective order if requested. Each party will take reasonable measures to protect the confidentiality of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information. Each party shall as soon as reasonably practicable notify the other party in the event of any unauthorized use or disclosure of the Confidential Information of which it becomes aware.
8. Payment Terms
8.1 Services Purchase Online. If the Customer has purchased the Services online, Customer will be charged on or around the Effective Date for the License Fees for the first 12 months of the applicable subscription plans selected by the Customer. Thereafter, for subsequent years, the applicable License Fees will be automatically charged in advance by Workshare to the Customer's credit or debit card on file on or around the anniversary of the Effective Date until the right to use the Services is terminated. The Customer agrees that submitting its credit or debit card details the Customer expressly consents to the charge of any recurring applicable License Fees. If payment of such fees cannot be processed using the stored credit or debit card, Customer agrees to promptly provide another accepted payment method to Workshare, otherwise Section 8.4 shall be applicable.
8.2 Services Purchase Offline. If the Customer has purchased the Services offline, the Customer will be invoiced for the License Fees for the first 12 months of the applicable subscription plans selected by the Customer on or around the Effective Date. Thereafter, for subsequent years, the Customer will be invoiced for the applicable License Fees on or around the anniversary of the Effective Date until right to use the Services is terminated. All invoices issued by Workshare will be due and payable within thirty (30) days of the date of invoice.
8.3 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 Site. The Customer is advised to check the Site regularly for such changes. Workshare may also give email notice of such changes to the email address provided by the Customer during registration, as may be updated by the Customer.
8.4 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 the Customer's default for late payment. In addition, failure of the Customer 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 the Customer's use of the Services and Software. Any such suspension shall not relieve the Customer of its obligation to pay any amounts due, plus late fees as provided for herein. The Customer shall reimburse Workshare for all collection expenses incurred by Workshare, including, without limitation, agency fees, attorneys' fees, and costs.
8.5 Payment Currency. All payments hereunder will be made in the currency stated on the Site at the time of the order on in the invoice (as applicable).
9. Term; Termination
9.2 Termination. This Agreement will automatically renew for subsequent one-year terms, at the then-current standard terms and conditions, Subject always to Section 8, 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 8.3 and unless otherwise agreed between the parties, upon any such automatic renewal for any one-year term in accordance with this Section 9.2, 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 the Customer does not abide by the terms and conditions contained herein.
Customer may terminate this Agreement if Workshare does not remedy any breach of a material term of this Agreement within 30 days after having received notice from the Customer requiring the remedy of such breach.In such circumstances, the Customer shall be entitled to a pro-rated refund (to the nearest whole month) of any License Fees which have been paid in advance but for which Services have not been provided.
9.3 Procedure Upon Termination. Upon termination of the Services for any reason (i) Customer will cease all use of the Services; and (ii) Workshare shall make the Customer Content remaining within Workshare's possession or control available for a single download by the Customer for a period of at least twenty-eight (28) days. Following expiry of such twenty-eight (28) day period, Workshare may delete all of the Customer Content that may be stored in connection with the Services.
10. Suspension of Services.
Workshare may suspend Customer's right to access or use any or all of the Services immediately upon notice to the Customer if Workshare believes in good faith that:
(a) Customer's use of the Services (i) poses a security risk to the Services or any third party, (ii) may adversely impact the Services or the systems or content of any other Workshare customer, or (iii) may subject Workshare or its Service Providers, affiliates or any third party to liability; or
11. Discontinuation or Modification of Services.
Workshare reserves the right to modify or discontinue elements of the Services at any time, including adding, changing or removing any features or functionality of the Services. If the Customer can demonstrate that such modification or discontinuation has a material adverse effect on the Customer, Customer shall be entitled, by providing notice to Workshare within fourteen (14) days the modification or discontinuation, to terminate this Agreement and receive a pro-rated refund (to the nearest whole month) of any License Fees which have been paid in advance but for which Services have not been provided..
12. Representations and Warranties
12.1 No Workshare Warranties. Customer acknowledges that Customer is participating in the Software and the Services and that the Software and the Services may contain bugs, errors and defects. ACCORDINGLY, THE SOFTWARE AND THE SERVICES ARE PROVIDED BY WORKSHARE 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 SOFTWARE, THE SERVICES, 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 SOFTWARE OR THE SERVICES 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 SOFTWARE OR THE SERVICES, ANY INABILITY TO USE THE SOFTWARE 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) THE SERVICES SHALL BE COMPATIBLE WITH ANY PARTICULAR CUSTOMER PLATFORM, SOFTWARE OR INTERFACES, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES 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 THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE; OR (F) THE SERVICES OR THE SERVERS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
12.3 Customer Responsibility. Customer assumes full responsibility for (i) the selection of the Services; (ii) the proper use of the Services; (iii) verifying the results obtained from the use of the Services; and (iv) taking appropriate measures to prevent loss of data, protect against software viruses, and protect against software security breaches.
13.1 Workshare Indemnity. Workshare shall defend, indemnify, and hold 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 Services (excluding any Customer Content or other third party components) of a valid U.S. copyright or trade secret. If the Services, or any component thereof, are found to be infringing, or if Workshare believes that the Services may be found to be infringing, Workshare may, at its option, (a) obtain the right for Customer to continuing use of the infringing component of the Services, (b) replace or modify the infringing Service so that it becomes non-infringing, or (c) refund to Customer any Fees prepaid by Customer for future Services, prorated relating only to the infringing portion of the Services. Customer shall cease using the infringing portion of the Services. THE PROVISIONS OF THIS SECTION SET FORTH THE ENTIRE LIABILITY OF WORKSHARE AND THE EXCLUSIVE REMEDY OF CUSTOMER FOR ACTUAL OR ALLEGED INFRINGEMENT OF PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR ANY OTHER INTELLECTUAL PROPERTY RIGHT.
13.2 Customer Indemnity. 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 Content; (ii) Customer's misuse of the Services; or (ii) any violation by Customer of Applicable Law.
14. Limitation of Liability
15.6 Export Control. Workshare provides Services 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. Customer acknowledges and agrees that the Services 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.
15.7 Third Party Rights. No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
15.8 Customer Acknowledgment on Use of Information. Workshare may use the Customer’s name and reproduce its 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 Customer’s agreement that notwithstanding any provision to the contrary in any agreement with Workshare and/or its affiliates.