Last Update: 26th April 2012
HOSTED SOFTWARE SERVICES AGREEMENT
WORKETC PTY LTD, A CORPORATION CHARTERED IN AUSTRALIA (“WORK[etc]”) IS WILLING TO PROVIDE THE SERVICES DESCRIBED IN THE ATTACHED PURCHASE ORDER ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON “I ACCEPT”, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND YOUR ENTITY TO THESE TERMS, IN WHICH CASE “CUSTOMER” SHALL REFER TO YOUR ENTITY. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN WORK[etc] IS UNWILLING TO PROVIDE THE SERVICES TO YOU.
1.1 “Services.” The web services described and specified on the applicable Purchase Order and any updates or upgrades to such services which may be generally released by WORK[etc] to all customers from time to time.
1.2 “WORK[etc] Technology.” The computer hardware, software and other tangible equipment and intangible computer code necessary to deploy and serve the Services via the Site.
1.3 “Site.” WORK[etc]’s worketc.com website including the WORK[etc] Technology.
1.4 “Authorized Users.” The number of identifiable unique persons consisting of Customer’s personnel and outside consultants for whom subscription fees are paid for the use of the Services, as specified in the applicable Purchase Order(s). Authorized Users may include Customer’s third party consultants, outsourcers, contractors and other service providers.
1.5 “Affiliate.” With respect to Customer, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with Customer, which agrees in writing to be bound by all the obligations of Customer hereunder.
1.6 “Internet Data Centers.” Any of the facilities owned or controlled by WORK[etc] and used by WORK[etc] to provide the Services. These facilities house the WORK[etc] Technology used for the provision of Services.
1.7 “Customer Data.” Customer’s information or other data processed, stored or transmitted by, in or through the Services, including without limitation personal information relating to the Customer’s personnel, customers, and prospective customers such that the identity of such persons is apparent or can reasonably be determined from such personal information.
1.8 “Purchase Order.” A document indicating that it is a “purchase order” which incorporates the terms of this Agreement either (i) in written form if mutually agreed upon and duly executed by the parties, or (ii) by email if the email is transmitted and received between email addresses previously designated by the parties for purposes of Purchase Orders and the email consists of at least one message from each party that indicates complete agreement on all terms described in the email and the intention to be bound by such terms. In order to be binding, a “purchase order” must comply with the above requirements.
1.9 “Proprietary Rights.” Any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
2. Subscription License Grant. Subject to the terms and conditions hereof, during the term hereof, WORK[etc] hereby grants to Customer and its Affiliates only to the extent of Authorized Users and solely for Customer’s internal business purposes a non-exclusive, non-transferable, worldwide right and license to access the Site and use the Services. All rights not expressly granted to Customer herein are expressly reserved by WORK[etc].
3. Use Restrictions.
3.1 Customer covenants and agrees that its use of the Services will be in a manner consistent with this Agreement and with all applicable laws and regulations, including trade secret, copyright, trademark, and export control laws.
3.2 Without limiting the generality of the foregoing, Customer shall not, nor shall it permit or assist others: (i) to abuse or fraudulently use the Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Services; (iii) to attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codes of any part of the WORK[etc] Technology; (iv) to access, alter, or destroy any information of any customer of WORK[etc] by any fraudulent means or device, or attempt to do so; (v) to upload or post infringing materials; (vi) to verbally abuse WORK[etc] personnel; or (vii) to hack or intentionally or harm or overload the Site or Service.
3.3 Any customer that ranks in the top 0.5% (one half of one percent) in either of storage space consumed or available bandwidth consumed, as calculated against all customers ranked from
most to least, for any period of time that exceeds 2 calendar months may, at WORK[etc]’s sole discretion, be required to terminate their account and delete all data from the WORK[etc] Internet Data Center, provided 28 days notice is provided by WORK[etc] and unless alternative arrangements are agreed to prior in writing.
3.4 Violation of any of the foregoing restrictions may lead to immediate suspension or termination of this Agreement and cancellation of your accounts; however, WORK[etc] may provide warning notices in its discretion.
3.5 If in WORK[etc]’s judgment Customer is requesting an unreasonable level of customer support that rises to the level of training, and Customer is unwilling to pay for the required training, then WORK[etc] reserves the right to limit or cease providing ongoing support and training.
4. Email Restrictions; No-Spam Policy.
4.1 Customer may engage in general email promotions; provided, however, Customer agrees to comply strictly with WORK[etc]’s No-Spam Policy of only sending emails to recipients who have specifically granted Customer permission to email them. For purposes of clarification, WORK[etc]’s No-Spam Policy provides that if you purchased, rented, or otherwise obtained all or part of your email list from a third party, you Customer shall not send emails to that list through the Services or the WORK[etc] Technology. In addition to the foregoing, Customer agrees to comply strictly with all other applicable laws (country specific, United States (U.S. CAN-SPAM Act of 2003, as amended), state, and otherwise) that govern marketing email.
4.2 Violation of our No-Spam Policy or any of these laws may lead to immediate suspension or termination of this Agreement and cancellation of your accounts; however, WORK[etc] may provide warning notices in its discretion. Customer agrees to defend and indemnify WORK[etc] from and against any claim by a third party in connection with your failure to comply with WORK[etc]’s No-Spam Policy.
4.3 WORK[etc] is not designed as a mass email marketing tool. Each WORK[etc] account allows for a maximum of 5000 outbound emails, per paid user, per month. This is not a hard limit and WORK[etc] reserves, at its sole discretion, the right to impose this limit on any account that regularly exceeds this limit or if Spam complaints are received as the result of an accounts’ email activity. Alternatively an account is able to send email from WORK[etc], via their own mail server and as such email volume limits would not be applicable.
5. Security. Customer shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. As part of the Services, WORK[etc] shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data from unauthorized access (the “Security Standard”). Provided that WORK[etc] is in compliance with the Security Standard, the parties agree that WORK[etc] shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to WORK[etc] at the time. WORK[etc] will promptly report to Customer any unauthorized access to Customer Data promptly upon discovery by WORK[etc], and WORK[etc] will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such Customer Data is required, Customer shall be solely responsible for any and all such notifications at its expense.
6. Set-Up of Services. WORK[etc] will complete all tasks required to make the Services accessible to Customer, including (i) implementing in the WORK[etc] Technology any interfaces required in the applicable Purchase Order, (ii) delivering to Customer any proprietary software and related documentation necessary to access the WORK[etc] Technology to access and use the Services, (iii) assigning all security access, passwords and user IDs necessary to access the WORK[etc] Technology to access and use the Services, and (iv) preparing data that may be specified on the applicable Purchase Order for use with the Services.
7. Access Codes For Services. WORK[etc] will permit access to the Services only over the Internet using access codes assigned by WORK[etc]. Access codes will be deemed the Confidential Information of both parties.
8. Technical Requirements For Services.
8.1 Capacities. The Services shall be rendered in a manner that will support the Authorized User requirements and other requirements provided in the applicable Purchase Order.
8.2 Internet Data Centers. The Services will be provided through Internet Data Centers that are configured consistent with prevailing industry standards for fireproofing, power and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions. In addition, the facility shall be secured against physical and electronic intrusion in a manner consistent with prevailing industry standards. WORK[etc] may outsource its Internet Data Center operations to subcontractors; provided, however, that WORK[etc] shall be responsible for the performance of such subcontractors, and WORK[etc] shall be liable for any action or inaction by such subcontractors as if performed by WORK[etc].
9. Monitoring of Customer’s Use. WORK[etc] reserves the right to internally monitor Customer’s usage of the Site and Services.
10. No Commingling of Customer Data. The Services shall be operated in an environment where (i) all Customer Data shall be stored on files totally separate from those of other customers of WORK[etc], or (ii) all files containing Customer Data are partitioned sufficient to protect the security and privacy of Customer Data.
11. Purchase of Additional Services. Customer may elect to purchase rights for additional Authorized Users and/or additional services by Purchase Order from time to time. Such additional purchases shall be governed by the terms and conditions hereof. Customer agrees that, absent WORK[etc]’s express written acceptance thereof, the terms and conditions contained in any purchase order or other document issued by Customer to WORK[etc] for the additional purchases, shall not be binding on WORK[etc] to the extent that such terms and conditions are additional to or inconsistent with those contained in this Agreement.
12. Subscription Fees. Customer shall pay to WORK[etc] periodic subscription fees for the Services and technical support services provided hereunder in accordance with the applicable Purchase Order. All fees are non-refundable.
13. Taxes. All fees are exclusive of taxes or duties. If WORK[etc] is required to pay or collect any federal, state, local, value added, tax or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on WORK[etc]’s net income, then such taxes and/or duties shall be billed to and paid by Customer immediately upon receipt of WORK[etc]’s invoice and supporting documentation for the taxes or duties charged.
14. Technical Support, Training, and Consulting Services. During the term hereof, WORK[etc] shall provide technical support in the form of responses to questions by email or telephone at no additional charge. If additional services are required for the proper use and operation of the Services or if training or consulting services are requested, WORK[etc] shall provide such services on a time and materials (“T&M”) basis; that is, (i) Customer shall pay WORK[etc] for all the time spent performing such services (including all travel time), plus materials, taxes, and reimbursable expenses; and (ii) the rates for such services shall be WORK[etc]’s then-current standard rates when such services are provided. Any monetary limit stated in an estimate for T&M services shall be an estimate only for Customer’s budgeting and WORK[etc]’s resource scheduling purposes. If the limit is exceeded, WORK[etc] will cooperate with Customer to provide continuing services on a T&M basis. WORK[etc] shall invoice Customer monthly for T&M services. Charges shall be payable upon receipt of invoice by Customer. WORK[etc] reserves the right to require a non-refundable fee and/or cost deposit prior to commencement of services as well as a work order.
15. Technical Contacts. Customer shall designate one of its employees as its principal contact for communicating with WORK[etc] regarding technical issues hereunder. Customer may change its technical contact from time to time by written notice to WORK[etc].
16. Proprietary Rights Ownership. Ownership of the Proprietary Rights embodied in the Site, Services, and WORK[etc] Technology shall remain exclusively vested in and be the sole and exclusive property of WORK[etc] and its licensors. In addition Customer hereby transfers and assigns to WORK[etc] any rights Customer may have to any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer personnel relating to the Service. The worketc.com domain name, product names and logos associated with the Services are trademarks of WORK[etc] or third parties, and no right or license is granted to use them.
17. Mutual Exchange of Confidential Information. The parties anticipate that each may disclose confidential information to the other. Accordingly, the parties desire to establish in this Section terms governing the use and protection of certain information one party (“Owner”) may disclose to the other party (“Recipient”).
17.1 Definition of Confidential Information. For purposes hereof, “Confidential Information” means (i) the terms and conditions hereof, (i) non-public aspects of WORK[etc]’s Site and the operation thereof, WORK[etc] Technology, and the Services and additional services provided by WORK[etc], and WORK[etc]’s business and technical information, and data, (iii) Customer Data, and non-public aspects of Customer’s technology, computer programs, and business and technical information, and data. In addition, Confidential Information includes information which, although not related to the Services or this Agreement, is nevertheless disclosed hereunder, and which, in any case, is disclosed by an Owner or its affiliate to Recipient in document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure.
17.2 Restrictions on Use and Disclosure. Recipient may use Confidential Information of Owner only for the purposes of this Agreement and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under this Agreement and only to its employees who have a need to know for such purposes and who are bound by signed, written agreements to protect the received Confidential Information from unauthorized use and disclosure.
17.3 Exclusions. The restrictions of this Agreement on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, (iv) is independently developed by a party as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure.
18. General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, Customer agrees that WORK[etc] is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of WORK[etc].
19. Customer Representations and Warranties.
19.1 Customer represents and warrants that (i) the performance of its obligations and use of the Services (by Customer and its Authorized Users) will not violate any applicable laws, or regulations, including without limitation any and all laws and regulations regarding the transfer of personal information of residents of the European Union outside the European Union, or (ii) cause a breach of any agreements with any third parties or unreasonably interfere with the use by other WORK[etc] customers of WORK[etc] services.
19.2 Customer acknowledges that (i) WORK[etc] does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance, and (ii) Customer will use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force.
19.3 In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, WORK[etc] will have the right to suspend immediately any Services if deemed reasonably necessary by WORK[etc] to prevent any harm to WORK[etc] and its business. WORK[etc] will provide notice to Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, WORK[etc] will promptly restore the Services.
20. WORK[etc] Representations and Warranties. WORK[etc] represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations and delivery of the Services to Customer will not violate any applicable laws or regulations of the United States or cause a breach of any agreements between WORK[etc] and any third parties. In the event of a breach by WORK[etc] of the foregoing warranties, Customer’s sole remedy is termination of this Agreement upon written notice to WORK[etc].
21. Limited Warranty. WORK[etc] represents and warrants that the Services will: (i) conform to all material operational features as described in the applicable Purchase Order, and (ii) be free of errors and defects that materially affect the performance of such features (“Limited Warranty”), provided that Customer notifies WORK[etc] of any non-conformity, error, or defect. Customer’s sole and exclusive remedy for breach of this Limited Warranty shall be the prompt correction of non-conforming Services at WORK[etc]’s expense.
22. Warranty Disclaimers. EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, NEITHER WORKETC NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND WORKETC AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. SOME STATES DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE SERVICE, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT. WORKETC DOES NOT WARRANT THAT THE SERVICE OR SITE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICE OR SITE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, OR THAT THE OPERATION OF THE SERVICES OR SITE WILL BE UNINTERRUPTED, OR ERROR-FREE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT THAT WORKETC HAS NO CONTROL OVER THE INTERNET, AND THAT WORKETC IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICES.
23. Disclaimer of Actions of Third Parties. WORK[etc] does not and cannot control the flow of data to or from WORK[etc]’s Technology and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although WORK[etc] will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, WORK[etc] cannot guarantee that such events will not occur. WORKETC DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES WHICH ARE NOT WORKETC’s SUBCONTRACTORS
24. Intellectual Property Indemnity. Except for third party software including without limitation open source software, WORK[etc] will indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense arising out of a third-party claim made against Customer that the WORK[etc] Technology or Services infringe on any U.S. intellectual property right of a third party; provided, however, that WORK[etc] is notified in writing of such claim promptly after such claim is made upon Customer. WORK[etc] shall have the right to control any defense of the claim. In no event shall Customer settle any such claim without WORK[etc]’s prior written approval. WORK[etc] shall have no liability or obligation if the claim arises from (i) any alteration or modification to the WORK[etc] Technology or Services other than by WORK[etc], (ii) any combination of the WORK[etc] Technology or Services by Customer with other programs or data not furnished by WORK[etc], or (iii) any use by Customer of the WORK[etc] Technology or Services that is prohibited by this Agreement or otherwise outside the scope of use for which the WORK[etc] Technology or Services are intended.
25. Options for Infringement Claims. If any party is enjoined from using the WORK[etc] Technology, or if WORK[etc] believes that the WORK[etc] Technology may become the subject of a claim of intellectual property infringement, WORK[etc], at its option and expense, may: (i) procure the right for Customer to continue to use the Services; (ii) replace or modify the WORK[etc] Technology so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided in the applicable Purchase Order; or (iii) terminate this Agreement, in which case WORK[etc] shall refund to Customer any and all subscription fees paid in advance by Customer for those Services not provided by WORK[etc] and provide, at Customer’s request and free of charge, the Customer Data in a database document format. This Section and the preceding Section sets forth the entire liability of WORK[etc] to Customer for any infringement by the WORK[etc] Technology or Services of any intellectual property right of any third party. Notwithstanding the foregoing, this Section does not apply to third party software including without limitation open source software.
26. Disclaimer of Incidental and Consequential Damages. EXCEPT FOR INDEMNITY OBLIGATIONS ESPRESSLY PROVIDED HEREIN AND ANY VIOLATION OF CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
27. Liability Cap. Except for WORK[etc]’s indemnity expressly provided herein and WORK[etc]’s confidentiality obligations, in no event shall WORK[etc]’s aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, shall not exceed the total of subscription fees payable by Customer for the three (3) billing periods immediately preceding the claim for such liability.
28. Term of Agreement. The initial term of this Agreement and all Purchase Orders shall be one calendar month, after which the term of shall automatically renew from month to month. Both the initial term and any renewal term are subject to earlier termination as otherwise provided herein. Either party may choose not to renew this Agreement without cause for any reason.;
29. Automatic Termination. Unless WORK[etc] promptly after discovery of the relevant facts notifies Client to the contrary in writing, this Agreement and all Purchase Orders will terminate immediately without notice upon the institution of insolvency, bankruptcy, or similar proceedings by or against WORK[etc], any assignment or attempted assignment by WORK[etc] for the benefit of creditors, or any appointment, or application for such appointment, of a receiver for WORK[etc].
30. Termination For Cause. If either party fails to comply with any of the material terms and conditions of this Agreement or Purchase Order, including without limitation the payment of any subscription license fee or reimbursement due and payable to WORK[etc] under this Agreement, the non-defaulting party may terminate this Agreement and/or any or all Purchase Orders and any and all license rights upon fifteen (15) days’ written notice to the defaulting party specifying any such breach, unless within the period of such notice, all breaches specified therein shall have been remedied.
31. Termination by WORK[etc] for End of Life. WORK[etc] intends to continue to provide and support the Services for so long as Customer renews in accordance with the applicable Purchase Order; provided, however, if, WORK[etc] determines in its sole discretion that it is no longer feasible to support the Services, WORK[etc] may terminate this Agreement for end of life at any time by providing one hundred eighty (180) days written notice to Customer.
32. Return of Materials. Within ten (10) days of the expiration or termination of any license under any Purchase Order, Customer shall return to WORK[etc] any materials provided by WORK[etc].
33. Transition Services. If Customer is current in all payments due to WORK[etc] at the time of expiration or termination hereof, WORK[etc] shall provide to Customer its Customer Data in a standard database document format readily available to WORK[etc] at no additional charge. If Customer requests the Customer Data in a non-standard format, Customer shall pay to WORK[etc] a reasonable fee for technical services as determined by WORK[etc].
34. Arbitration. Except for actions to protect Proprietary Rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration will take place only by telephone or online. The arbitrator shall apply the laws of the State California USA to all issues in dispute. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Legal fees shall be awarded to the prevailing party in the arbitration.
35. Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by email or facsimile (provided delivery is confirmed), or U.S. Mail (registered or certified only), return receipt requested, in each case to the address set forth on the initial page hereof or at such other addresses as shall be designated in writing by either party to the other in accordance with this Section. Such notice will be deemed to be given when received.
36. Assignment. This Agreement shall inure to the benefit of, and be binding upon, any successor to all or substantially all of the business and assets of each party, whether by merger, sale of assets, or other agreements or operation of law. Except as provided above, Customer shall not assign this Agreement or any right or interest under this Agreement, without WORK[etc]’s prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective.
37. Continuing Obligations. The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (iv) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the Confidential Information of either party, or any remedy for breach thereof, and (v) the payment of taxes, duties, or any money to WORK[etc] hereunder.
38. Force Majeure. Neither party shall be liable for damages for any delay or failure of delivery arising out of causes beyond their reasonable control and without their fault or negligence, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures. Notwithstanding anything to the contrary contained herein, if either party is unable to perform hereunder for a period of thirty (30) consecutive days, then the other party may terminate this Agreement immediately without liability by ten (10) days written notice to the other.
39. U.S. Government End-Users. WORK[etc] Technology and the WORK[etc] software incorporated therein, this Site, and the Services all consist of “commercial items,” as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government end users of this site acquire only those rights set forth herein.
40. Miscellaneous. This Agreement shall be construed under the laws of the State of California USA , without regard to its principles of conflicts of law. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, understandings, and agreements. This Agreement may be modified only by a written agreement signed by the parties. The failure of either party to enforce at any time any of the provisions hereof shall not be a waiver of such provision, or any other provision, or of the right of such party thereafter to enforce any provision hereof. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
PURCHASE ORDER NO. 1
This Purchase Order No. 1 shall be governed by the terms and conditions of a certain Hosted Software Services Agreement.
Capitalized terms used in this Purchase Order and not otherwise defined shall have the same meaning as set forth in the body of the Hosted Software Services Agreement.
1. Effective Date. The effective date of this Purchase Order is indicated on your registration receipt emailed at the time of purchase.
2. SaaS Services.
2.1 General Description. The Services consist of a collection of integrated software tools that provides users with a powerful web-based system ready to improve workflow and management, while automating key tasks to help make certain processes more efficient.
2.2 Services Features. Services features include:
2.3 Email Limitations. Email is limited to 10,000 messages per calendar month per account. Additional email message capacity may be purchased by purchasing additional seats.
2.4 Remote Documents Storage limitations.
2.4.1 The Services include unlimited storage for standard business documents including PDFs, Word processing files, Excel Spreadsheets, Database files, image files, and any other standard business document up to 20MB in size.
2.4.2 We do not offer storage for video files >50MB nor copyrighted material in any format including software applications, movies and music.
3. Special Requirements.
3.1 Operational Requirements. (e.g. supported browsers and browser requirements such as whether browsers should be Java enabled)
3.2 Customer’s Requirements. Customer shall be solely responsible for providing the following materials at its cost and expense: all Internet access, hardware, browsers, and other software necessary to access and login to the Site.
4. Subscription Fees.
4.1 The number of Authorized Users for this Purchase Order is indicated on your registration receipt emailed at the time of purchase.
4.2 Subscription fees are charged monthly, in advance, at the then-current rate published on this Site per Authorized User. This is a “negative option billing plan”, and you hereby agree to be billed monthly as indicated herein.
4.3 Any unused portion of a subscription period, be it monthly, annual or any other time period, is non-refundable and forfeited. Unused subscription periods cannot be applied toward future periods or other Customer accounts.
4.4 Payment of subscription fees may be by credit/debit card online at this site, or by any other method approved by us.Fees are non-refundable, unless expressly provided otherwise on this site. If for any reason we are unable to charge your credit card with the full amount of the fees, or if we are charged back for any fee previously charged to your credit card, you agree that we may pursue all available remedies to pursue payment, including without limitation, suspension or termination of your account and rights to all Services from this site.
4.5 Customer hereby authorize WORK[etc] to charge the credit/debit card used in the registration process as provided above . If the credit card authorization fails, we will request updated credit card information. However, if you do not provide updated credit card information that successfully authorizes within 72 hours after notice, we may terminate your account and rights to all Services from this Site.
4.6 We will email you a notice after each payment that will also notify that you may cancel the Services and terminate this Agreement by logging into your account, clicking on My Settings -> Manage My Account -> Cancel My Account.
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