1. Definitions. In addition to the capitalized terms defined upon first use herein, certain capitalized terms are defined in the Schedule of Definitions included at the end of these Terms of Service.
2. Scope of Agreement.
2.1 The capitalized term “Agreement” when used herein refers to the terms of an Order Form (insofar as such terms pertain to SaaS Services), together with these Terms of Service. If the Parties enter into more than one Order Form, then each additional Order Form shall be deemed to form a new and separate Agreement between the Parties (and the phrase “this Agreement” shall be deemed to reference the particular Agreement required by the context, independently of and separately from each other agreement between the Parties), unless the additional Order Form specifically states that it is supplementing and amending an existing Order Form.
3. Provision and Use of Purchased Services.
3.1 During the applicable Subscription Period, WorkSpace shall make available the Purchased Services to Customer on the terms and subject to the conditions set forth in this Agreement.
3.2 WorkSpace is responsible for the deployment, operation, management and hosting of the Purchased Services, including the provisioning and maintenance of all server-side hardware, software and telecommunications capacity. Customer is responsible for all hardware, software, connectivity and related infrastructure required for Customer and Authorized Users to access and use the Purchased Services. Notwithstanding the foregoing, to the extent Customer has entered into a separate agreement with a third-party integrator for the integration of your or a third-party’s systems with the Purchased Services, the terms of that agreement (and not these Terms of Service) govern your rights and remedies with respect to the such integration and other services performed by such third-party.
3.3 WorkSpace shall use commercially reasonable efforts to ensure that the Purchased Services are available for use by Authorized Users 24 hours per day, seven days per week, excluding any periods of time during which the Purchased Services are not available for use due to scheduled maintenance, emergency maintenance or Force Majeure Events.
3.4 Customer is solely responsible for the security and proper creation, use and termination of all Authorized User IDs, passwords and other security devices used in connection with the Purchased Services and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to unauthorized Persons. Customer shall immediately inform WorkSpace if there is any reason to believe that a user ID, password, or any other security device has or is likely to become known to any Person not authorized to use it, or is being or is likely to be used in an unauthorized way. WorkSpace reserves the right (at its sole discretion) to require Customer to change any or all of the user IDs, passwords or other security devices used by Customer in connection with the Purchased Services, and Customer shall promptly comply with any such requirement.
3.5 Customer is solely responsible for its relationships with all Authorized Users and Affiliates of Customer, for their use of the Purchased Services, and for ensuring that they comply with all the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by an Authorized User or Affiliate of Customer shall be deemed to be a violation by Customer of such terms and conditions.
3.6 WorkSpace shall maintain administrative, physical, and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data. WorkSpace shall not access or use Customer Data except in connection with providing, supporting and maintaining the Purchased Services. Customer is solely responsible for all other aspects of Customer Data, including its sourcing, inputting, management, accuracy, quality, results and the privacy of protected personal information.
3.7 The Purchased Services may contain features designed to function with software applications, online services or other products and services offered by third parties (such third-party applications, services, or products, “Third-Party Offerings”). Any acquisition, access or use by or on behalf of Customer of Third-Party Offerings, including the availability and performance of any Third-Party Offerings and the exchange of Customer Data between Purchased Services and Third-Party Offerings, is solely between Customer and the applicable third-party provider. WorkSpace makes no representations or warranties, express or implied, as to the availability or performance of any Third-Party Offerings. The foregoing shall apply notwithstanding any recommendations, suggestions, certifications, referrals (including integration referrals) or other marketing efforts on the part of WorkSpace related to any Third-Party Offering. By making use of any functionality between the Purchased Services and any Third-Party Offering, Customer authorizes WorkSpace and its subcontractors to access the relevant Customer Data.
4. Rights and Limitations of Use.
4.1 Subject to the terms and conditions of this Agreement (including Customer’s payment obligations hereunder), WorkSpace grants to Customer a limited, non-exclusive, non-transferable right and license during the applicable Subscription Period: (a) to access and use, and permit Authorized Users to access and use, the Purchased Services and Documentation solely for the Permitted Purpose; and (b) to the extent WorkSpace makes available to Customer, by way of download or other form of distribution, any pre-defined report formats, software components, tools, materials or technology intended for use in connection with the Purchased Services, to store, install, execute and use the same internally within Customer’s organization, solely in connection with Customer’s authorized use of the Purchased Services.
4.2 Except for the rights granted in Section 4.1, no other rights in or to any SaaS Services or WorkSpace IP, express or implied, are granted to Customer. Without limiting the foregoing, except to the extent expressly authorized by this Agreement, Customer may not: (a) transfer to any other Person any of its rights to use Purchased Services; (b) sell, rent, lease or share any Purchased Services; (c) permit any Person who is not an Authorized User to use or access any Purchased Services; (d) use any Purchased Services other than for the Permitted Purpose; (e) use any Purchased Services to provide outsourcing, service bureau, hosting, application service provider or online services to third Persons; (f) create any derivative works based upon any Purchased Services or WorkSpace IP; (g) copy any feature, design or graphic in any Purchased Services or WorkSpace IP; (h) attempt to circumvent any security device or access or derive the source code or architecture of any Purchased Services or WorkSpace IP; (i) use or access any Purchased Services or WorkSpace IP in order to build a competitive solution or to assist someone else to build a competitive solution; (j) load or penetration test the Purchased Services or otherwise use any Purchased Services in any way that is, or could reasonably be expected to be, detrimental to WorkSpace’s ability to provide services to any other customer; (k) use any Purchased Services to access the data of any other customer of WorkSpace; (l) alter, remove or conceal any government restricted rights notice or any copyright, trademark, trade name or other proprietary marking or notice that may appear in or on the Purchased Services, the Documentation or any other WorkSpace IP; (m) use the Purchased Services in a manner that violates any applicable law, ordinance, regulation or administrative order; or (o) permit any other Person to do any of the foregoing.
4.3 WorkSpace will have the right to review, extract, compile, synthesize and analyze any non-personally identifiable data or information derived from Customer’s, its Affiliates and Authorized Users’ use of the Purchased Services (“WorkSpace Data”). By way of example, WorkSpace Data may include information about dates and times Authorized Users access the Purchased Services, the portions of the Purchased Services visited, the performance of the Purchased Services, and aggregated, anonymized and de-identified information based on Customer Data; however, no data or information that identifies Customer, any Affiliate of Customer, any Authorized User or any other individual shall be included in the WorkSpace Data. WorkSpace shall own all right, title and interest in and to the WorkSpace Data upon creation and may freely use and otherwise exploit the WorkSpace Data for any lawful business purpose.
5.1 WorkSpace shall make available to Customer standard web and email based technical support with respect to the Purchased Services. Technical support shall only be provided to a maximum of two (2) Customer Designated Representatives who have been appropriately trained with respect to the use of the Purchased Services. Other Authorized Users shall use the Documentation and rely on the Customer Designated Representatives for support. WorkSpace shall not be obligated to provide technical support to other Authorized Users or outside of WorkSpace’s normal support hours.
5.2 Customer acknowledges that the SaaS Services were not designed or produced to Customer’s individual requirements and that Customer is solely responsible for confirming that the Purchased Services meet such requirements. Customer further acknowledges that the SaaS Services are based on a standardized service platform made available by WorkSpace to a variety of customers. WorkSpace will make available to Customer as part of the Purchased Services the error corrections and improvements that WorkSpace makes available to its customers generally as part of their subscription to the Purchased Services, but specifically excluding any new products, offerings, modules, functionality or features for which WorkSpace charges a separate fee, unless Customer separately purchases a license or subscription thereto. WorkSpace reserves the right to make changes to the Purchased Services. If any such changes materially diminishes the functionality and value of the Purchased Services as a whole, then: (a) WorkSpace shall notify Customer at least sixty (60) days prior to implementing such change (except in cases where WorkSpace determines that expedited implementation is required); and (b) if Customer disapproves of any such change that materially diminishes the functionality and value of the Purchased Services as a whole, Customer shall have the right, exercisable no later than thirty (30) days after such change has been implemented, as Customer’s sole remedy, to terminate this Agreement upon notice to WorkSpace and recover a refund of prepaid subscription fees pursuant to Section 10.6(d). Customer agrees that its subscription to the Purchased Services is not contingent on the delivery of any future functionality or features, or dependent on any statements made by WorkSpace regarding possible future functionality or features.
6. Fees and Payment.
6.1 Customer shall pay all fees and charges as specified in each Order Form. Except as otherwise set forth in this Agreement, all payment obligations under an Order Form are non-cancelable and amounts paid are non-refundable. Unless otherwise specified in an Order Form, all fees and charges for the initial Subscription Period are due upon the effective date of such Order Form, and Customer shall pay all other fees and charges within thirty (30) days of the date of WorkSpace’s invoice therefor.
6.2 WorkSpace may charge Customer interest at the rate of 1.5% per month (or the highest rate allowable by law, if less) for any past due amounts, from the date payment was due until the date paid, other than with respect to any amount disputed by Customer in good faith where Customer is cooperating diligently to resolve the dispute. Customer shall bear any costs (including attorneys’ fees and costs) incurred by WorkSpace in collecting any amounts due hereunder.
6.3 WorkSpace reserves the right to increase any fees at any time, provided that no increase of the subscription fee payable by Customer for the Purchased Services shall take effect until the start of the next Subscription Period following WorkSpace’s notice to Customer of such fee increase, sent no later than sixty (60) days prior to the start of such Subscription Period.
6.4 Customer shall pay any sales, use, value added and other taxes and import duties (other than corporate income taxes payable by WorkSpace) due as a result of any amounts paid by Customer to WorkSpace under any Order Form.
6.5 Customer shall not charge any fee to WorkSpace related to invoice processing, and shall pay or reimburse WorkSpace for any such fee charged by any third party that Customer requires WorkSpace to use in connection with processing WorkSpace’s invoices to Customer.
7.1 Each Party represents and warrants to the other Party that: (a) it has the full power and authority to enter into this Agreement and perform its obligations, provide the Customer Data, and receive the Purchased Services under this Agreement; and (b) the execution, delivery and performance of this Agreement by it does not violate, conflict with or constitute a default under any agreement or instrument to which it is a party or by which it is bound, or any applicable law, regulation or order of any court or other tribunal, except where such violation, conflict or default would not materially impair such Party’s performance of its obligations or the other Party’s enjoyment of its rights under this Agreement.
7.2 WorkSpace further warrants to Customer that: (a) the Purchased Services will function substantially in accordance with the applicable Documentation; and (b) it will use a generally commercially available virus detection or scanning program to test the Purchased Services for the presence of viruses. In the event of any nonconformance with any of the warranties specified in this Section 7.2, Customer will promptly (and in no event later than thirty (30) days after the non-conforming services were provided) notify WorkSpace of such nonconformance and WorkSpace will, following receipt of such notice from Customer, use commercially reasonable efforts to make available to Customer a conforming version of the Purchased Services. If WorkSpace fails to do so within thirty (30) days, and such nonconformance has the effect of materially diminishing the functionality and value of the Purchased Services as a whole, then Customer shall have the right to terminate this Agreement upon notice and recover the subscription fees paid to WorkSpace, pursuant to Section 10.6(d); provided, however, that such termination shall not be permitted if, within such thirty (30) day period, WorkSpace has provided Customer with reasonable assurances that such nonconformance will be remedied within a reasonable period of time. The foregoing sets forth the exclusive remedies of Customer, and the sole liability of WorkSpace, in the event of any nonconformance with any of the warranties set forth in this Section 7.2 or otherwise with respect to any errors, service interruptions or other problems with the Purchased Services.
7.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, WORKSPACE IS PROVIDING THE PURCHASED SERVICES “AS IS” AND WORKSPACE DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WITH RESPECT TO THE PURCHASED SERVICES OR THEIR PERFORMANCE HEREUNDER, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, WORKSPACE DOES NOT WARRANT THAT THE PURCHASED SERVICES WILL MEET CUSTOMER’S EXPECTATIONS OR BE SECURE, ACCURATE, ERROR-FREE, OR OPERATE ON AN UNINTERRUPTED BASIS. WITHOUT LIMITING THE FOREGOING, WORKSPACE WILL NOT BE LIABLE FOR ANY PROBLEMS WITH THE PURCHASED SERVICES ATTRIBUTABLE TO THE INTERNET, THIRD-PARTY OFFERINGS, FORCE MAJEURE OR CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK OR ABILITY TO ACCESS THE INTERNET OR ANY THIRD-PARTY OFFERING.
8.1 WorkSpace shall indemnify, defend and hold harmless Customer and its employees and agents from and against any loss, cost, damage or expense (including reasonable attorneys’ fees and costs) in respect of any claim, demand, action, suit or other judicial proceeding asserted, brought or threatened by a third Person (each a “Claim”) alleging that the Purchased Services as provided by WorkSpace hereunder infringe any third Person’s rights in any copyright, trademark or United States or European Union patent, except to the extent the Claim (a) relates to Customer Data or other materials provided by or on behalf of Customer or its Authorized Users; (b) relates to the actual or alleged infringement of inventions, technologies or methods in widespread unlicensed use by third Persons at the time the Purchased Services have been used by Customer; or (c) is otherwise subject to Customer’s indemnification obligations under Section 8.2. In the event of any actual Claim of infringement or if WorkSpace has reason to believe that such a Claim may be brought, WorkSpace may at its option and sole expense either obtain the rights necessary to extinguish or avoid the infringement, or make any modifications to the Purchased Services that are recommended by WorkSpace’s counsel to avoid infringement of third Person rights, provided that if any such modification materially diminishes the functionality and value of the Purchased Services as a whole, Customer may within ninety (90) days following WorkSpace’s implementation of such modification terminate this Agreement by notice to WorkSpace and recover a refund of prepaid fees pursuant to Section 10.6(d). This Section 8.1 states Customer’s sole remedy and WorkSpace’s entire liability for any losses and damages of any nature arising out of or relating to any actual or alleged infringement of any copyright, patent, trade secret or other Intellectual Property Rights of any third Person.
8.2 Customer shall indemnify, defend and hold harmless WorkSpace and its Affiliates and their respective employees and agents from and against any loss, cost, damage or expense (including reasonable attorneys’ fees and costs) in respect of any Claim that relates to (a) Customer Data or any other content or materials provided by Customer or its Affiliates or Authorized Users, and Customer’s ability to report on the same, or (b) the use by Customer or its Affiliates or Authorized Users of the Purchased Services or WorkSpace IP in breach of this Agreement or in violation of applicable law or third party rights.
8.3 As a condition to the obligations of the indemnifying party under either of Sections 8.1 or 8.2 above, the indemnified Person shall: (a) promptly notify the indemnifying Party of any Claim for which indemnity will be sought; provided that no delay in providing such notice shall relieve the indemnifying Party of any liability or obligations hereunder except to the extent the indemnifying Party has been prejudiced by such delay; (b) permit the indemnifying Party to assume control of the defense and settlement of such Claim with counsel of its choosing; and (c) provide cooperation reasonably requested by the indemnifying Party in investigating and defending such Claim, at the indemnifying Party’s expense (provided that the indemnified Person shall not be entitled to compensation for time spent providing such cooperation). The indemnified Person shall have the right to participate in (but not control) the defense of any such Claim, at its sole cost and expense, using counsel of its choosing.
9. LIMITATIONS OF LIABILITY.
9.1 EXCEPT FOR LIABILITY ARISING FROM A WILLFUL OR INTENTIONAL BREACH OF SECTION 11 (CONFIDENTIALITY), OR FROM A BREACH OF SECTION 12 (PROPRIETARY RIGHTS), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF DATA, LOSS OF BUSINESS OR PROFITS, OR ANY OTHER SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
9.2 IN NO EVENT WILL WORKSPACE’S AGGREGATE LIABILITY TO CUSTOMER ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL SUBSCRIPTION FEES ACTUALLY PAID BY CUSTOMER TO WORKSPACE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM OCCURRED.
9.3 THE LIMITATIONS OF LIABILITY AND DAMAGE EXCLUSIONS CONTAINED IN THIS AGREEMENT WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS (OR LACK THEREOF) OF ANY REMEDIES PROVIDED HEREIN. THESE LIMITATIONS AND EXCLUSIONS ARE REFLECTED IN THE PRICING OF THE PURCHASED SERVICES, AND THEY REPRESENT AN AGREED ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL PART OF THIS AGREEMENT.
9.4 EACH PARTY SHALL TAKE, AND CAUSE ITS AFFILIATES TO TAKE, ALL REASONABLE STEPS TO MITIGATE ANY DAMAGES UPON BECOMING AWARE OF ANY EVENT OR CIRCUMSTANCE THAT WOULD BE REASONABLY EXPECTED TO, OR DOES, GIVE RISE TO AN INDEMNIFICATION CLAIM OR OTHER DAMAGES CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT.
10. Subscription Period, Renewals, Termination and Suspension.
10.1 WorkSpace makes the SaaS Services available on a subscription basis, and Customer is purchasing a subscription to access and use the Purchased Services upon the terms and conditions set forth in this Agreement, for the Subscription Period specified in the Order Form. Unless otherwise specified in the Order Form, neither Party may terminate any Purchased Services for convenience prior than the end of its Subscription Period.
10.2 Upon expiration of a Subscription Period, Customer’s subscription to the applicable Purchased Services and the term of this Agreement shall automatically renew for consecutive renewal periods each of the same duration as the initial Subscription Period or one (1) year, whichever is shorter, at WorkSpace’s then-current subscription price (subject to Section 6.3), unless either Party notifies the other Party no later than thirty (30) days prior to the scheduled renewal date that it is electing not to renew this Agreement, in which case the subscription and the term of this Agreement shall end upon the expiration of the then-current Subscription Period.
10.3 Either Party may terminate this Agreement by notice if the other Party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting Party. Any such termination shall be without limitation of any other right or remedy available to the terminating Party.
10.4 Upon ten (10) days’ notice to Customer, WorkSpace may suspend the Purchased Services in whole or in part if Customer fails to make when due any payment required under this Agreement or under any other agreement entered into by the Parties. Upon receipt of payment in full of all overdue amounts, provided Customer is not otherwise in breach of this Agreement or any other agreement entered into by the Parties, WorkSpace shall promptly restore the suspended Purchased Services. WorkSpace may also suspend the Purchased Services in whole or in part if Customer otherwise breaches any term of this Agreement or any other agreement entered into by the Parties and fails to cure such breach within thirty (30) days after receipt of notice of the breach from WorkSpace, until such time as the breach is cured. Notwithstanding the foregoing, WorkSpace may immediately suspend the Purchased Services, with or without prior notice to Customer, in order to avoid or mitigate irreparable harm to WorkSpace. Any suspension hereunder shall be without limitation of any other right or remedy available to WorkSpace.
10.5 Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business in the ordinary course, files a petition in bankruptcy or has a petition filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.
10.6 Upon the termination or expiration of this Agreement for any reason:
WorkSpace will terminate access to the Purchased Services, and all rights and licenses granted by WorkSpace pursuant to this Agreement shall terminate.
Customer shall pay all amounts that have accrued and are owed hereunder within ten (10) days following any termination or expiration of this Agreement.
Upon written request by Customer made within thirty (30) days after the effective date of expiration or termination and provided Customer has complied with Section 10.6(b), WorkSpace shall make available to Customer for download one or more electronic files of any Customer Data stored in the Purchased Services. After such thirty (30)-day period, WorkSpace shall have no obligation to maintain or provide any Customer Data.
If this Agreement is validly terminated by Customer pursuant to either of Sections 5.2, 8.1 or 10.3 and Customer is in full compliance with all material terms and conditions of this Agreement, WorkSpace shall within ten (10) days following the effective date of such termination refund to Customer all subscription fees previously paid by Customer for the Purchased Services with respect to the then-remaining portion of any prepaid Subscription Period.
If requested by a Party, the other Party shall promptly destroy or return to the requesting Party, as directed, all of the requesting Party’s Confidential Information, and other materials of the requesting Party in such other Party’s possession or under its control. Notwithstanding the foregoing, each Party shall be entitled to retain any records to the extent it has been advised in writing by counsel that such retention is required to comply with applicable law or regulation.
Any provision of this Agreement which, by its nature, would survive termination or expiration of this Agreement shall survive any such termination or expiration.
11.1 Each Party that receives Confidential Information of the other Party agrees that, unless the disclosing Party gives its prior written authorization, it shall not: (a) use such Confidential Information other than for the purposes of this Agreement; or (b) disclose any such Confidential Information to any third Person except those directors, officers, employees, Consultants and agents of the receiving Party who are required to have such Confidential Information in order to carry out the purposes of this Agreement and who have signed a non-disclosure agreement or are otherwise bound by confidentiality obligations in substance similar to the provisions hereof. The receiving Party shall prevent the unauthorized use, disclosure, dissemination or publication of such Confidential Information using at least the same degree of care that the receiving Party uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.
11.2 The obligations of the Parties under Section 11.1 shall not apply to the extent of any disclosure required pursuant to a duly authorized subpoena, court order, or government authority, provided that the receiving Party has provided prompt notice and assistance to the disclosing Party prior to such disclosure, so that such Party may seek a protective order or other appropriate remedy to protect against disclosure.
11.3 Any breach of the confidentiality obligations set forth in this Section 11 would constitute a material breach of this Agreement, which the breaching Party acknowledges would cause irreparable harm to the non-breaching Party, leaving it without an adequate remedy at law. As such, any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other remedies, without necessity of posting of a bond or other security in connection therewith. The preceding sentence is not intended, nor shall it be construed, to limit a Party’s right to dispute the factual basis underlying any contention that it has committed any breach.
11.4 This Section 11 will remain in effect during the term of this Agreement and for a period of five (5) years following termination or expiration of this Agreement for any reason, except with respect to any Confidential Information of WorkSpace contained in or constituting WorkSpace Software, for which this Section 11 will remain in effect indefinitely.
11.5 In the event that the provisions of this Section 11 are inconsistent with the provisions of any applicable non-disclosure (or comparable) agreement separately executed by the Parties, then the terms of this Section 11 shall govern with respect to Confidential Information disclosed in connection with the subject matter of this Agreement.
12. Proprietary Rights.
12.1 As between the Parties, all Intellectual Property Rights in and to any Customer Data are and shall remain the sole property of Customer and its Affiliates, as applicable, and WorkSpace shall acquire no right of ownership or use with respect thereto, except that WorkSpace and its Affiliates and their respective employees and agents shall have the right to reproduce, modify, use, host, transmit and display the same in connection with WorkSpace’s provision of the Purchased Services.
12.2 As between the Parties, all Intellectual Property Rights in and to the WorkSpace IP are and shall remain the sole property of WorkSpace and its Affiliates and their respective licensors, as applicable, and Customer shall acquire no right of ownership or use with respect to any WorkSpace IP except for the limited license right specified in Section 4. Without limiting the foregoing, Customer acknowledges that the WorkSpace Software and SaaS Services and the inventions, know-how and methodology embodied therein are proprietary to, and are the valuable trade secrets of, WorkSpace and its Affiliates and licensors, as applicable, and that the WorkSpace Software constitutes Confidential Information of WorkSpace.
12.3 Customer, Customer’s Affiliates or Authorized Users may from time to time provide WorkSpace with suggestions, comments, recommendations and/or feedback regarding the SaaS Services and/or WorkSpace’s related technologies (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily and without compensation. As between the Parties, all Feedback shall be exclusively owned by WorkSpace and WorkSpace shall be freely entitled to reproduce, prepare derivative works of, disclose to third Persons, display and perform (publicly or otherwise), sell, lease, license, distribute, and otherwise use and exploit any and all such Feedback, at its sole discretion, without obligation or liability of any kind to Customer or to any other Person.
12.4 The provision by WorkSpace of Purchased Services for use by or on behalf of any unit or agency of the United States Government (the “Government”) are subject to the following: The Purchased Services and related WorkSpace Software and Documentation constitute “commercial computer software” and/or “commercial computer software documentation,” respectively, and the Government’s rights with respect to the same are, in the case of civilian agency use, and if for the Department of Defense use, limited by the terms of this Agreement, pursuant to FAR 12.212 and/or DFARS §227.7202-1 through §227.7202-4 as applicable. The use of any Purchased Services, WorkSpace Software or Documentation hereunder by the Government constitutes acknowledgment by the Government of WorkSpace’s proprietary rights therein and thereto. If the Government has a need for rights not granted under these Terms of Service, it must negotiate with WorkSpace to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
13. Evaluation Offerings. Notwithstanding anything to the contrary contained herein, if Customer has obtained any Evaluation Offerings, then: (a) Customer may access and use such Evaluation Offerings solely for internal evaluation purposes (and not for any other purpose including production operations of any kind) for a period not to exceed [thirty (30)] days (or such other evaluation period as may be specified in an Order Form for Evaluation Offerings) unless Customer purchases a full subscription prior to the expiration of the evaluation period; (b) WorkSpace may terminate this Agreement as it pertains to Evaluation Offerings at any time during any evaluation period, for any reason or no reason, upon notice to Customer; and (c) all Evaluation Offerings are provided solely on an “as is” basis and none of the covenants, obligations, representations or warranties of WorkSpace forth in Sections 5, 7.2 and 8.1 shall apply to Evaluation Offerings.
14. Force Majeure. If either Party is unable to perform any obligation (excluding any payment obligation) under this Agreement because of any matter beyond that Party’s reasonable control, such as lightning, flood, pandemic, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of either Party), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond a Party’s reasonable control (each, a “Force Majeure Event”), that Party will have no liability (including any obligation to issue refunds or credits) to the other for such failure to perform; provided, however, that such Party shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event.
15. Publicity. Customer hereby grants WorkSpace the right to issue a press release announcing that Customer has become a customer of WorkSpace, and to reproduce and display Customer’s name and logo on WorkSpace’s website and in brochures, social media and other marketing materials for the purpose of identifying WorkSpace’s relationship with Customer. Except as provided in the preceding sentence, all media releases, public announcements and public disclosures by either Party relating to this Agreement or its subject matter shall require the mutual approval of the Parties.
16. Audit. Customer acknowledges that the Purchased Services may include features designed to monitor Customer’s compliance with applicable usage limitations set forth in the Order Form. In addition, WorkSpace may audit Customer’s use of the Purchased Services upon reasonable advance notice, not more than once per calendar year unless WorkSpace has reasonable cause to believe that Customer is using or permitting the Purchased Services to be used in an unauthorized manner. If any such monitoring or audit reveals that the Purchased Services have been used in excess of the applicable usage limitations set forth in the Order Form or in any other unauthorized manner, Customer will, within thirty (30) days of receipt of WorkSpace’s invoice, reimburse WorkSpace for the reasonable, documented costs of such audit and pay any additional charges that would apply, under WorkSpace’s then-current prices, for such excess or other unauthorized use, without limitation of any other remedies WorkSpace may have under law or this Agreement.
17. General Provisions.
17.1 WorkSpace shall have the right to modify any of the terms or conditions of this Agreement from time to time, provided that no such modification shall take effect until the start of the next Subscription Period following WorkSpace’s notice to Customer of such modification sent no later than sixty (60) days prior to the start of such Subscription Period. Customer’s failure to object to such modification and/or terminate this Agreement pursuant to Section 10.1 within thirty (30) days after its receipt of such modification notice shall constitute Customer’s acceptance of such modification. Except as set forth in this Section 17.1, no waiver or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each Party. Any forbearance or delay on the part of either Party in enforcing any of its rights under this Agreement shall not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence.
17.2 This Agreement shall be governed by, and construed in accordance with, the laws of the State of Michigan, without regard to its choice of law principles. Any litigation between the Parties concerning this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts in the Oakland County, Michigan. Nothing contained in this Section 17.2 shall prevent either Party from seeking injunctive relief from any court of competent jurisdiction.
17.3 Customer shall not assign or otherwise transfer this Agreement, or delegate any duty or assign or otherwise transfer any right hereunder, including by operation of law, without the prior written consent of WorkSpace in each case. Any attempt to do any of the foregoing without WorkSpace’s prior written consent shall be a material breach of this Agreement and any assignment or purported assignment without such consent shall be null and void ab initio. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and permitted assigns.
17.4 Unless otherwise specified in this Agreement, any notice required or permitted to be sent under this Agreement shall be sent, in writing, by certified mail (return receipt requested), overnight courier or personal delivery, to WorkSpace or to Customer at the addresses for notices set forth in the Order Form or as changed from time to time by notice. Such notices shall be effective when received.
17.5 If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the Parties underlying the invalid, illegal or unenforceable provision(s).
17.6 The headings and other captions in this Agreement are for convenience only and shall not be used in interpreting, construing, or enforcing any of the terms of this Agreement. The words “including,” “include” and “includes,” and the phrases “by way of example,” “such as” and “for example” when used in this Agreement shall each be deemed to be followed by the words “without limitation.”
17.7 This Agreement does not create or evidence a partnership, joint venture or any other fiduciary relationship between the Parties. The Parties are independent, and each has sole authority and control of the manner of, and is responsible for, its performance of this Agreement. Neither Party may create or incur any liability or obligation for or on behalf of the other Party, except as described in this Agreement.
17.8 This Agreement constitutes the entire agreement between Parties with regard to the subject matter hereof and supersedes any and all previous communications, whether oral or written, as well as any previous memoranda of understanding and side letters between the Parties with respect to such subject matter. In the event of any conflict, discrepancy or inconsistency between an Order Form and these Terms of Service, the terms of the Order Form shall govern. Neither the course of conduct between Parties nor trade usage shall modify or alter this Agreement.
17.9 Any Order Form may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Any Order Form may be executed and delivered by facsimile or other electronic image transmission.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly is controlled by or under common control with such Person. For purposes of this Agreement, a Person shall be deemed to have “control” over another Person if: (a) such Person directly or indirectly, on its own or acting through one or more Persons, owns, controls or has power to vote at least 50% of the issued and outstanding voting stock or other equity interest of such other Person; or (b) such Person controls or has the power to control the management or operations of such other Person, including by contract.
“Authorized User” means an individual employee or Consultant of Customer or of any Affiliate of Customer, who is authorized by Customer to use the Purchased Services for the Permitted Purpose, regardless of whether or not the individual is actively using the Purchased Services at any given time, provided that no Authorized Users may be, nor work for a direct or indirect competitor of WorkSpace.
“Consultant” means a consultant engaged by Customer or any Affiliate of Customer to provide services to and for the sole benefit of Customer or such Affiliate.
“Customer” means the Person entering into this Agreement with WorkSpace, as identified in the Order Form.
“Customer Data” means all electronic data or information of Customer or its Affiliates that is input and stored in any system pursuant to Customer’s use of the Purchased Services.
“Confidential Information” means any information, including information, technical data or know-how relating to discoveries, ideas, inventions, concepts, software, equipment, designs, drawings, specifications, techniques, processes, systems, models, data, source code, object code, documentation, diagrams, flow charts, research, development, business plans or opportunities, products, projects or products under consideration, procedures, and information related to finances, costs, prices, suppliers, vendors, customers and employees, which is disclosed by the disclosing Party in connection with this Agreement whether before, on or after the Effective Date, directly or indirectly, in writing, orally or by drawings or inspection of equipment or software, to the receiving Party or any of its employees or designated agents. Confidential Information includes the terms of this Agreement and notwithstanding anything in this Agreement to the contrary, WorkSpace’s Confidential Information includes WorkSpace Software. Confidential Information does not include any of the following: (a) information that is or becomes part of the public domain or otherwise available on an unrestricted basis to one or more third Persons without violation of this Agreement by the receiving Party; (b) information that was known to or in the possession of a receiving Person without breach of the confidentiality obligations in this Agreement, as evidenced by written records; (c) information that was developed independently by or on behalf of the receiving Party, without use of or reference to the Confidential Information; or (d) information that is disclosed to the receiving Party by a third Person without violation of this Agreement by the receiving Party.
“Customer Designated Representative” means the Customer-designated employee(s) or Consultant(s) identified as such on an Order Form or as updated by Customer from time to time by notice to WorkSpace.
“Documentation” means the online instructions and user guides for the SaaS Services as made available by WorkSpace from time to time and accessible via login at http://my.workspace.com/.
“Evaluation Offering” means any software-as-a-service offering (including any “beta” or other pre-release software that has not yet been made generally commercially available by WorkSpace) made available by WorkSpace to Customer or its Affiliates for trial, evaluation or testing purposes.
“Intellectual Property Rights” means all rights throughout the world in any and all of the following: (a) patents, patent applications, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names, Internet domain names and registrations and applications for the registration thereof together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs and mask works) and registrations and applications for registration thereof; (d) trade secrets, know-how and other proprietary information of a like kind; (e) waivable or assignable rights of publicity, waivable or assignable moral rights; and (f) all other forms of intellectual property, such as data and databases, in each case, to the extent protectable under applicable law.
“Order Form” means an order form executed by the Parties with respect to SaaS Services that incorporates by reference these Terms of Service.
“Party” means Customer or WorkSpace and “Parties” means, collectively, both parties to this Agreement.
“Permitted Purpose” means the use, in accordance with the Documentation and the terms of this Agreement (including any applicable usage limits set forth in the Order Form) of the Purchased Services solely for the management of properties owned or managed by Customer or any Affiliate of Customer.
“Person” means any individual, corporation, limited liability company, partnership, trust, joint stock company, business trust, unincorporated association, joint venture or other form of business or legal entity.
“Purchased Services” means the specific SaaS Services to which Customer has purchased a subscription pursuant to an Order Form, and any other services purchased by Customer, which may be reflected in an Order Form.
“SaaS Services” means WorkSpace’s generally commercially available hosted software-as-a-service offerings, the specific features and functionality of which are described in the applicable Documentation.
“Subscription Period” means the initial period for which Customer has contracted to subscribe to the Purchased Services as specified in the Order Form, along with each renewal period of Customer’s subscription pursuant to Section 10.2.
“WorkSpace” means WorkSpace LLC or such other contracting WorkSpace entity as may be specified in the Order Form.
“WorkSpace IP” means the WorkSpace Software, the Documentation and all other software (including both source code and object code, as applicable), documentation, templates, designs (including screen and report designs), data, materials, technology and works created, utilized and/or provided by or on behalf of WorkSpace in connection with the SaaS Services or the performance of this Agreement, and all Intellectual Property Rights related to any of the foregoing.
“WorkSpace Software” means all software forming part of or used by WorkSpace to deliver SaaS Services, including any upgrades, improvements, enhancements or derivatives thereof. WorkSpace Software also includes any and all technology, software (including application programming interfaces, i.e., APIs), code, scripts or materials that are provided by or on behalf of WorkSpace and are used to facilitate Customer Data transmission and reporting to, from, and within the SaaS Services.