VDI Subscription Agreement
Last Updated June 1, 2016.
This Subscription Agreement (the “Agreement”) will govern the use and acquisition of the Workspot Platform and services by the company you represent as identified in this registration form (“Company”).
YOUR ACCEPTANCE OF THIS AGREEMENT BY CLICKING THE ACCEPTANCE BOX OR BY EXECUTING AN ORDER FORM REFERENCING THIS AGREEMENT REPRESENTS THAT YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF COMPANY. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE WORKSPOT SERVICES.
This Agreement is between Workspot, Inc. with its principal place of business at 1601 S. De Anza Blvd. Suite 230, Cupertino, CA 95014 USA (“Workspot”) and Company. The terms of this Agreement are as follows:
Section 1. Definitions
In addition to terms defined elsewhere in this Agreement, the following terms will have the following specified meanings:
“Administrative User(s)” means (an) individual(s) designated by Company who is authorized to have administrative access to and control over the Hosted Service.
“Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with a party, where “control” means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interests of a subject entity.
“Client Application” means Workspot’s proprietary software application (in object code form) called “Workspot Client” that Workspot makes generally available for downloading and installation by End Users on End User Devices that are currently supported by Workspot and such other devices or operating system releases that Workspot determines to support in its sole discretion that enable an End User to access and utilize any or all of the functionality of the Hosted Service.
“Company Data” means all electronic data or information submitted, uploaded or stored by End Users and Administrative Users in the Hosted Service.
“Documentation” means the applicable data sheet(s) provided with the Workspot Platform, as may be updated by Workspot from time to time.
“End User” means an individual who is authorized and identified by Company to Workspot to use the Client Application and/or Hosted Service and/or whose information is stored on the Hosted Service.
“End User Device” means the End User device (i.e., laptop, tablet, PC, mobile phone) on which the Client Application is installed.
“Effective Date” means the date Company begins the use of the Hosted Service and thereby accepts this Agreement or the date of this Agreement, whichever is earlier.
“Fees” means the amounts payable by Company to Workspot for the subscriptions to the Workspot Platform or other agreed upon charges as stated in the applicable Order Form.
“Free Trial” means access or subscriptions to the Workspot Platform, or other designated applications which Workspot provides to Company or a permitted Affiliate, without charge for a limited period of time.
“Hosted Service” means the generally available and implemented modules of Workspot’s proprietary hosted service called “Workspot Control,” including updates thereto, that are accessible through a web browser and, as and when such functionality is made available by Workspot in its sole discretion, allow Company’s Administrative Users to configure, manage and monitor the Client Application.
“Implementation Services” means any professional services related to the implementation of the Hosted Service and Client Application as requested by Company and agreed to by Workspot, as more fully described in Section 3.
“Intellectual Property Rights” means 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.
“Laws” means all applicable laws, regulations, statutes, rules, orders and other requirements of any applicable international, federal, state or local governmental authority.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents programs, or the like.
“Order Form” means the ordering documents for Company’s purchase of the subscriptions to the Hosted Service hereunder. Each Order Form shall include the following: Services (software) purchased; subscription term for the services purchased, the number of end users purchased or permitted; Implementation Services purchased (optional); professional services purchased (as defined in the Order Form) (optional); the fees, payment terms and manner of payment; contact information for notices; contact information for performance. Orders will be deemed accepted by Workspot upon the earlier of when the requested access to the Hosted Service has been provisioned by Workspot or when Workspot otherwise informs Company in writing of Workspot’s acceptance of such Order, whichever is earlier (“Order Form Effective Date”). Order Forms shall be deemed incorporated herein by reference.
“Purchased Services” means access or subscriptions to the Workspot Platform, or other designated applications (including, without limitation, Workspot’s mobile and desktop applications and email client plug-ins) that Company or a permitted Affiliate purchases under an Order Form.
“Purchased Services Term” means the subscription term for the Purchased Services specified in an Order Form.
“Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction.
“Third Party Software” means third party software that is embedded in or otherwise provided with the Client Application and/or the Hosted Service. As used in this Agreement, Third Party Software is expressly excluded from the defined terms “Client Application ” and “Hosted Services.”
“Workspot Platform” means, collectively, the Hosted Service and the Client Application.
Section 2. License, Use and Restrictions
2.1 License Grant.
(a) Client Application. During the Purchased Services Term, subject to the terms and conditions of this Agreement, the applicable Order Form and Company’s payment of Fees, Workspot hereby grants to Company a worldwide, nonexclusive, non-transferable, non-sublicensable, limited license, solely for Company’s internal business purposes, to permit the number of End Users designated on an Order Form to download and use the Client Application on the End User’s designated End User Devices. End User subscriptions are for designated End Users and cannot be shared or used by more than one named End User but may be reassigned by Company via the Hosted Services to new End Users replacing former End Users who no longer require use of the Client Application. Company is responsible for such End Users’ compliance with the terms and conditions of this Agreement.
(b) Hosted Service. During the Purchased Services Term, subject to the terms and conditions of this Agreement, the applicable Order Form and Company’s payment of Fees, Workspot hereby grants to Company a worldwide, nonexclusive, non-transferable, non-sublicensable, limited license, solely for Company’s internal business purposes, for Company to access and use the Hosted Service in connection with the administration of the Client Application.
2.2 Company’s Use of Hosted Service and Client Application.
(a) Use of Hosted Service. Through the Hosted Service, Company will access and use the Client Application. The Hosted Service will provide an administration capability allowing Administrative Users to add and delete End Users and set and modify associated access and security policies. Company is responsible (a) for administering End User names and passwords and for all activities conducted under Company’s End Users’ usernames and passwords; (b) for Company’s End Users’ compliance with this Agreement; (c) for the content, accuracy, quality, integrity and legality of the Company Data and of the means by which Company acquired the Company Data; (d) for using commercially reasonable efforts to prevent unauthorized access to or use of the Hosted Service, and notifying Workspot promptly of any such unauthorized access or use; and (e) for any third party products or services used or exchanged by Company in connection with the Hosted Service.
(b) Use of Client Application. Through the Hosted Service, an Administrative User will allow any End User to download the Client Application onto the End User Device after authorizing that End User’s email address. The End User’s use of the Client Application is subject at all times to the terms of this Agreement, including without limitation the terms of Section 2.1(a) and 2.2(c).
(c) Restrictions on Use of Hosted Service and Client Application. Company shall use the Workspot Platform solely for Company’s business purposes, in compliance with all applicable Laws, and shall not: (i) sell, resell, rent, lease, sublicense, distribute, lease, time-share, modify, translate or create derivative works of the Workspot Platform; (ii) make the Workspot Platform available to any third party that is not an End User of the Workspot Platform or make available to any third party any information or functionality that is made available through the Workspot Platform; (iii) send through or store infringing or unlawful material in or using the Workspot Platform; (iv) knowingly send through or store Malicious Code in or using the Workspot Platform; (v) attempt to gain unauthorized access to, or disrupt or interfere with the integrity or performance of, the Workspot Platform, or the data contained therein; (vi) modify, copy or create derivative works based on the Workspot Platform or any information or functionality that is made available through it; (vii) decompile, reverse engineer or reverse assemble any portion of the Workspot Platform (or any part thereof) or any functionality that is made available through the Workspot Platform or attempt to discover any source code or underlying ideas or algorithms of the Workspot Platform; (viii) access or use the Workspot Platform for the purpose of building a competitive product or service or copying its features, functions, graphics or user interface or otherwise using or exploiting any intellectual property rights of Workspot underlying the Workspot Platform in a manner that is not authorized herein; or (ix) use the Workspot Platform, or permit either to be used, for purposes of product evaluation, benchmarking or other comparative or competitive analysis intended for publication without Workspot’s prior written consent. The Documentation may include additional restrictions or limitations to the use of the Workspot Platform, and Company agrees to comply with any such restrictions or limitations. In the event of a conflict between the Documentation and this Agreement, this Agreement shall control. Workspot reserves the right to immediately suspend Company’s access to and use of the Hosted Service if Workspot determines, in its reasonable discretion, that Company is violating (or has violated) any of the provisions set forth in this Section.
2.3 Demonstration of Services or Trial.
The terms of this Agreement apply also to a Free Trial. If Company registers for access to a Free Trial, Workspot will make portions or all of the Hosted Service available to Company on a limited trial basis free of charge until the earlier of (a) the end of the Free Trial period for which Company has registered to use the applicable Workspot service or (b) the start date of any Purchased Services Term. Services provided under the Free Trial shall be subject to the terms of this Agreement except that the following restrictions will apply: (i) notwithstanding any warranties implied or set forth in this Agreement, the Workspot Platform is provided “as-is” without any warranty whatsoever; (ii) the license for use of the Workspot Platform during the Free Trial period is limited to being solely for the purpose of internally evaluating the suitability of the Workspot Platform for Company’s internal business purposes; (iii) Workspot has the right to terminate a Free Trial at any time in Workspot’s sole discretion with or without notice. Any data Company enters into the Workspot Platform, and any customizations made by or for Company during the Free Trial period will be permanently lost unless Company purchases a subscription to the same or upgraded services as those covered by the trial.
Section 3. Implementation Services.
3.1 Description. Upon mutual written agreement of the parties, Workspot will perform Implementation Services for Company as described in an Order Form or a mutually executed statement of work referencing this Agreement. Fees for the Implementation Services will be set forth in an Order Form. For such Implementation Services, to the extent any software, hardware, documentation or other tangible deliverables results from such Implementation Services (“Deliverables”), such Deliverables and all Intellectual Property Rights therein remain the exclusive property of Workspot, and Workspot grants Company a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license during the Purchased Services Term to use the Deliverables for Company’s internal business purposes solely in connection with Company’s use of the Workspot Platform.
Section 4. Fees and Payment
4.1 Fees. During the Purchased Services Term, Company shall be responsible for Fees specified in the applicable Order Form. Except as otherwise specified herein or in an Order Form: (a) Fees are quoted and payable in United States dollars; and (b) Company’s obligation to pay all Fees is non-cancelable, and Fees paid are non-refundable.
4.2 Fee Increases. In the event that the parties mutually agree in writing to any extension of a Purchased Services Term or upgrade in the Purchased Services, Company shall be responsible for issuing payment to Workspot based upon the then-current list price for such extension or services upgrade, unless otherwise set forth in the applicable Order Form. Notwithstanding the foregoing, Company acknowledges that Workspot may, from time to time, add additional services, upgrades, features or functionality to the Hosted Services that Workspot does not make generally available without payment of additional Fees, and that Company’s access to and use of such additional services, upgrades, features and functionality may require payment by Company of additional Fees.
4.3 Invoicing and Payment Terms. All Fees payable to Workspot under this Agreement shall be set forth in an invoice in accordance with the terms and conditions set forth in this Section. Manner of Payment shall be specified in the Order Form., if Company is making payments for Fees via credit card, Company shall provide accurate payment information, and Company hereby authorizes Workspot to charge such credit card for all Fees in an applicable Order Form for the initial Purchased Services Term and any renewal thereof. In the event that Company chooses a non-automatic charging method, Company shall pay all Fees via credit card or by other means specified by Workspot in an applicable Order Form within thirty (30) days of the date of the applicable invoice issued by Workspot or within such period as otherwise specified in the applicable Order Form. Such payment shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. In the event Company disputes in good faith any invoiced Fees, Company will provide written notice of the disputed amount within thirty (30) days of receiving such invoice and timely pay any undisputed portion of such invoice. The parties will cooperate in good faith to resolve any disputed invoice or portion thereof within 30 days of notice of dispute. If Company has elected to pay Fees via credit card and the credit card is charged back to Workspot, or if any Fees invoiced to Company are not paid within thirty (30) days of invoice, Workspot may: (i) with respect to chargebacks, cease charging Company’s credit card and invoice Company for the amount charged back and any future Fees; (ii) accelerate the payment of any Fees payable; (iii) immediately suspend the Hosted Service until payment is made; (iv) impose a late payment charge of the lower of one and one half percent (1.5%) per month and the highest interest rate permitted by applicable law; and/or (v) immediately terminate the applicable Order Form for which Fees were due and/or terminate this Agreement.
4.4 Taxes. Unless otherwise stated in an Order Form or invoice, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes“). Company is responsible for paying all Taxes (except those based on Workspot’s income) associated with the Workspot Platform or Implementation Services purchased hereunder, and will pay, indemnify and hold Workspot harmless from any Taxes and any costs associated with the collection or withholding thereof, including penalties and interest.
Section 5. Intellectual Property Ownership and Consent to Use of Data
5.1 Intellectual Property Ownership. As between the parties and subject to the license grants under this Agreement, Workspot shall own and retain all right, title, and interest in and to the Workspot Platform (and all information made available through the Workspot Platform (excluding Company Data)), and all Intellectual Property Rights in and to any of the foregoing. As between the parties, Company shall own and retain all right, title and interest in and to the Company Data, and all intellectual property rights in and to any of the foregoing. Company may export Company Data from the Hosted Service at any time during the applicable subscription term.
5.2 Feedback. Company hereby agrees to assign and hereby does assign to Workspot all Intellectual Property Rights in and to any suggestions, enhancement requests, recommendations or other feedback provided by Company or its Administrative Users or End Users relating to the Workspot Platform.
5.3 Rights Reserved. All rights or licenses not expressly granted herein are reserved.
5.4 Consent to Use of Data. Company grants and agrees to grant Workspot (a) a non-exclusive, royalty-free license during the Purchased Services Term to use the Company Data, including technical information about the device on which the Hosted Service is accessed, solely to facilitate the provision of the Purchased Services and provide Implementation Services (if any), product support and other services to Company related to the Workspot Platform, and (b) a non-exclusive, royalty-free perpetual license to use the Company Data for statistical, analytical and other aggregate non-personally identifiable use.
Section 6. Representations and Warranties
6.1 Company Warranties. Company represents and warrants that Company (i) shall not infringe the Intellectual Property Rights of any third party; and (ii) will comply with all applicable employment data privacy and protection laws, including without limitation any required notifications to End Users, while using the Hosted Service and collecting, maintaining and handling personal data.
6.2 Workspot Warranties. Workspot represents and warrants that (i) the Hosted Service, Implementation Services, and any support services will be performed in a professional and workmanlike manner; and (ii) for thirty (30) days from the date of delivery to Company (“Client Application Warranty Period”), the Client Application, when used in accordance with the Documentation and the terms of this Agreement, will perform in material conformance with the applicable Documentation; and (iii) the Workspot Platform and the Purchased Services will comply with Third Party Software licenses.
Company’s sole and exclusive remedies, and Workspot’s sole and exclusive obligations for breach of the warranties set forth in Section 6.2 are as follows: (a) if Company promptly notifies Workspot of a breach of the warranty set forth in Section 6.2(i), Workspot will promptly reperform such Implementation Services or the Hosted Service, as applicable, at no additional cost to Company, and (b) if Company notifies Workspot of a breach of the warranty set forth in Section 6.2(ii) within the Client Application Warranty Period, Workspot will either fix the Client Application to remedy the defect or terminate the applicable Order Form and (i) if the subscription to the Hosted Services was purchased directly from Workspot, provide Company with a pro-rata refund of any pre-paid Fees for the remainder of the Purchased Services Term and (ii) if the subscription for the Hosted Services was purchased through a reseller, promptly provide a certification to such reseller that Company is qualified for a pro rata refund. This warranty is null and void to the extent the Client Application: (i) fails to conform with this warranty as a result of its use with any third party hardware or software; or (ii) is used for an unintended purpose, is used other than in accordance with its Documentation, or is otherwise used in breach of this Agreement.
6.3 No Warranty. EXCEPT AS PROVIDED IN THIS SECTION 6, WORKSPOT PLATFORM, THE IMPLEMENTATION SERVICES, AND ANY SUPPORT SERVICES ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WORKSPOT MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES THAT MAY ARISE BY OPERATION OF LAW. WITHOUT LIMITING THE FOREGOING, WORKSPOT DOES NOT WARRANT THAT THE WORKSPOT PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. Company assumes total responsibility and risk for Company’s use of the Workspot Platform. The Workspot Platform is provided on an “as available” basis, and Workspot will not be responsible for any loss of Company Data or any data related thereto.
Section 7. Confidentiality
7.1 Confidentiality. As used herein, “Confidential Information” means all confidential and proprietary information of either party, whether oral or written, that is designated or identified as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including the terms and conditions of this Agreement, the Workspot Platform, End User mobile device activation key codes, business and marketing plans, Company Data, technical information, product designs, trade secrets and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party without restriction on use or disclosure prior to its disclosure by the receiving party; (iii) was independently developed by the receiving party without breach of any obligation owed to the disclosing party as evidenced by documentation; or (iv) is rightfully received from a third party without restriction on use or disclosure.
7.2 The receiving party shall not use or disclose any Confidential Information other than to exercise its rights and/or perform its obligations under this Agreement, except with the disclosing party’s prior written consent or as otherwise required by law or legal process. Notwithstanding the foregoing, the receiving party may disclose Confidential Information to its Affiliates or other agents who have a bona fide need to know such Confidential Information; provided, that each such Affiliate or agent is bound by confidentiality obligations at least as protective as those set forth herein. The receiving party shall protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). The receiving party shall promptly notify Workspot if it becomes aware of any actual or reasonably suspected breach of confidentiality of Confidential Information.
7.3 If the receiving party is compelled by law or legal process to disclose Confidential Information, it shall provide the disclosing party with prompt prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s expense, if the disclosing party wishes to contest the disclosure.
7.4 If the receiving party discloses (or threaten to disclose) any Confidential Information in breach of this Section, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies may be inadequate.
7.5 Upon any termination of this Agreement, the receiving party shall continue to maintain the confidentiality of the Confidential Information for five (5) years and, upon request, return to the disclosing party or destroy (at the disclosing party’s election) all materials containing such Confidential Information, with the exception of information required to be retained by law or for internal archival and procedural purposes, provided that Company’s final export of Company Data shall be conducted in accordance with this Agreement. Notwithstanding the foregoing, any Confidential Information relating to a trade secret of a party shall be maintained as confidential by the other party for so long as such Confidential Information remains protected as a trade secret.
Section 8. Indemnification
8.1 Company Indemnification. Company agrees to defend, indemnify and hold Workspot and its employees, contractors and agents harmless from and against any and all actual or threatened third party claims, suits, actions or proceedings (collectively, “Workspot Claims”), including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) arising out of or relating to a Workspot Claim that (i) the Company Data or Workspot’s transmission, providing of access, hosting, or otherwise processing thereof infringes or violates the Intellectual Property Rights of such third party,; (ii) Company’s use of the Workspot Platform in violation of this Agreement infringes or violates the rights of such third party; or (iii) Company’s failure to comply with applicable Laws (including without limitation all applicable data privacy and protection laws (including, without limitation, any required notifications to End Users)), rules or regulations in its performance of this Agreement. Company shall pay Workspot any damages and expenses finally awarded against Workspot and settlements agreed to in writing by Company and reasonable costs and expenses (including reasonable legal fees) incurred by Workspot that are directly attributable to such Workspot Claim.
8.2 Workspot Indemnification. Workspot agrees to defend, indemnify and hold Company and its employees, contractors and agents harmless from and against any and all actual or threatened third party claims, suits, actions or proceedings (collectively “Company Claims”, including all related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees) arising out of or relating to a Company Claim that Company, a permitted Company Affiliate or an End User’s or an Administrative User’s use of the Workspot Platform as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party. Notwithstanding the foregoing, Workspot shall have no such indemnification obligation under this Section, to the extent such infringement or misappropriation is related to or arises from: (i) Company’s use of the Workspot Platform with software, data products, processes, or materials not provided or authorized by Workspot (including, without limitation, Company Data) and the infringement or misappropriation would not have occurred but for such use with other software, data products, processes, or materials (including the Company Data); (ii) modifications to the Workspot Platform made by Company (including Company Affiliates, Administrative Users and/or End Users) and not authorized by Workspot; or (iii) modifications to the Workspot Platform undertaken by Workspot at Company’s specific direction. If Workspot’s right to provide the Workspot Platform is enjoined for claims of infringement, or in Workspot’s opinion is likely to be enjoined, Workspot may at its election and expense, either: (a) replace or modify the Workspot Platform, as applicable, so that it no longer infringes or misappropriates, while still providing equivalent functionality; (b) obtain a license for Company to continue to use the Workspot Platform, in accordance with this Agreement; or (c) immediately terminate this Agreement and any Order Form then in effect, and upon Company’s return of the Client Application and discontinuation of the use of the Hosted Service, (i) if the subscription to the Hosted Services was purchased directly from Workspot, provide Company with a pro-rata refund of any pre-paid Fees for the remainder of the Purchased Services Term and (ii) if the subscription for the Hosted Services was purchased through a reseller, promptly provide a certification to such reseller that Company is qualified for a pro rata refund. Notwithstanding Workspot’s indemnification obligations, the foregoing shall be Company’s sole and exclusive remedy and Workspot’s sole and exclusive obligation with respect to any claim of intellectual property infringement.
8.3 Procedure. The indemnifying party shall have the control of the defense and related settlement of any claims. The indemnified party shall provide the indemnifying party with prompt written notice of the claim. Counsel that the indemnifying party selects for the defense or settlement of a claim must be consented to by the indemnified party prior to counsel being engaged to represent the indemnifying party on behalf of the indemnified party (such consent not to be unreasonably withheld or delayed). The indemnified party and its counsel will cooperate as fully as reasonably required, and provide such information as reasonably requested, by the indemnifying party in the defense or settlement of any claim. The indemnifying party shall not in any event, consent to any judgment, settlement, attachment, or lien, or any other act adverse to the interests of any indemnified party without the prior written consent of each relevant indemnified party (such consent not to be unreasonably withheld or delayed).
Section 9. Limitation of Liability
9.1 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL WORKSPOT HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF CUSTOMER DATA (OR ANY DATA RELATED THERETO) OR ANY INTERRUPTION OF BUSINESS OR FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT TO THE EXTENT OF WORKSPOT’S FRAUD, GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT. THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.2 Limitation of Liability. CUSTOMER AGREES THAT IN THE EVENT OF ANY CLAIM OR CAUSE OF ACTION BY CUSTOMER ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT, THE WORKSPOT PLATFORM, THE IMPLEMENTATION SERVICES, OR ANY SUPPORT SERVICES, THE MAXIMUM AMOUNT OF WORKSPOT’S LIABILITY TO CUSTOMER, AND REGARDLESS OF THE NATURE OF THE CLAIM ASSERTED BY CUSTOMER, SHALL BE THE FEES PAID BY CUSTOMER TO WORKSPOT WITHIN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, PROVIDED, HOWEVER, THAT WITH RESPECT TO WORKSPOT’S INDEMNIFICATION OBLIGATION, WORKSPOT’S MAXIMUM LIABILITY SHALL BE LIMITED TO THREE TIMES (3X) THE FEES PAID BY CUSTOMER TO WORKSPOT IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
THE FOREGOING DISCLAIMER WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE SERVICES AVAILABLE TO CUSTOMER, AND THAT, WERE WORKSPOT TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
Section 10. Term and Termination
10.1 Term of the Agreement. This term of this Agreement shall commence on the Effective Date and continue until all Purchased Services Terms have expired or been terminated. Except as otherwise specified in the applicable Order Form, all Purchased Services Terms shall automatically renew for additional periods equal in duration to the expiring Purchased Services Term or one (1) year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant Purchased Services Term.
10.2 Termination. Either party may terminate this Agreement immediately without further notice if the other party breaches its obligations under this Agreement and does not remedy such breach within thirty (30) calendar days of the date on which the breaching party receives written notice of such breach from the non-breaching party.
10.3 Transition of Company Data. Upon termination or expiration of this Agreement and/or an Order Form, Company shall have the ability to export or retrieve the Company Data from the Hosted Service within one hundred twenty (120) days after the effective date of termination. One hundred twenty (120) days after the effective date of termination, Workspot shall have no obligation to maintain or provide any Company Data and may thereafter, unless legally prohibited, delete all Company Data in its systems or otherwise in its possession or under its control. Company shall cease all use of the Workspot Platform upon termination or expiration of this Agreement, shall uninstall the Client Application from each End User’s End User Device on which it is installed and provide written certification to Workspot that Company has uninstalled the Client Application from each such End User Device, in each case, promptly after any termination or expiration of this Agreement.
10.4 Effect of Termination. Upon any expiration or termination of this Agreement: (a) Company’s right to use the Workspot Platform shall cease, and Workspot shall have no further obligation to make the Hosted Service available to Company; (b) except as otherwise expressly stated herein, all rights and licenses granted to Company under this Agreement will immediately cease; (c) except as provided in Section 10.3, Workspot will have no obligation with respect to any Company Data; and (d) Company will pay immediately any unpaid Fees payable for the remainder of the Purchased Services Term under any applicable Order Form in effect prior to the termination date.
10.5 Survival. Any terms and conditions of this Agreement that by their nature extend beyond expiration or termination hereof, shall survive, including Section 1, Section 5 through 11.
Section 11. Miscellaneous
11.1 Reference and Publicity. Company agrees to consider the following upon reasonable request by Workspot: (i) serving as a reference, (ii) publicizing Company’s name as a client of Workspot, and (iii) collaborating on case studies as Company realizes a return on investment following successful deployment.
11.2 Relationship of Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
11.3 Entire agreement, Amendment and language. Workspot may modify material terms of this Agreement upon written notice to Company at the electronic mailing address provided during Company’s registration. Unless Company opts out in writing within 30 days of receipt of the notice of change of terms, the modified terms will take effect on the date noted in the notice or 30 days following receipt of notice, whichever is later. If there are any conflicting or additional terms in a Company purchase order, the conflicting terms of this Agreement shall control and any additional terms in the Company purchase shall be of no force or effect. All conflicting or additional terms in a Company purchase order are hereby rejected. This Agreement (including all Order Forms) represents the entire agreement between the parties, and supersedes all prior or contemporaneous agreements, proposals or representations, written, oral or otherwise, concerning its subject matter. If Company has executed a written master agreement with Workspot governing the license and use of software, such master agreement will control and prevail over the terms of this Agreement. Questions about the Agreement may be addressed to Contracts@Workspot.com.
11.4 No Waiver. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in full force and effect.
11.5 Notice. All notices to Company will be sent to the electronic address provided by Company during registration unless otherwise set forth in the Order Form and will be considered received within one business day following dispatch. All notices to Workspot must be sent to email@example.com as well as to the Legal contact for notices set forth in the Order Form and will be considered received within one business day following dispatch.
11.6 Construction. The section headings of this Agreement are for convenience only and have no interpretive value. Whenever used in this Agreement, regardless of whether specified, the terms “includes,” “including,” “e.g.,” “for example” and other similar terms are deemed to include the term “without limitation” immediately thereafter. For purposes of this Agreement: (i) the word “or” is not exclusive; and (ii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Any Exhibits, addenda, attachments and the like, referred to herein will be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
11.7 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party’s employees), or any other “force majeure” event.
11.8 Assignment. Neither party may assign any rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party, except that Workspot may assign this Agreement without Company’s prior written consent in the event of a merger, acquisition, or other change of control. Any attempted assignment in breach of this Section 11.6 shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective permitted successors and permitted assigns.
11.9 Governing Law. This Agreement and any claims related thereto shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules, and all disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in San Jose, California. The parties hereby irrevocably consent to the jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.