Last Updated: July 23, 2019
THESE TERMS OF SERVICE (“Agreement“) CONSTITUTES A BINDING CONTRACT BETWEEN THE APPLICABLE WORKIZ ENTITY (“Workiz“) AND THE CUSTOMER ENTITY (“Customer“) THAT ENTER(ED) INTO THE SALES ORDER (DEFINED BELOW).
A “Sales Order” means as the case may be: (a) the offline sales order form (in)to which this Agreement is attached or incorporated, and which is executed by both parties (“Offline Form“); or (b) the Workiz online sales web form, which is submitted by Customer (“Online Form“). References herein to the “Agreement” shall be deemed to include the Sales Order.
BY ENTERING INTO THE SALES ORDER, OR BY OTHERWISE ACCESSING OR USING THE SERVICE (DEFINED BELOW), CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date“):
(a) THIS AGREEMENT, AND
(b) OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE STATED TO BE INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.
For the avoidance of doubt, in the case of the Sales Order being an Online Form, then:
(a)references herein to “Workiz” shall mean Workiz, Inc.;
(b)the individual who submitted the Online Form represents that he/she has the authority to act on behalf of the Customer, and to bind the Customer to this Agreement; and
Workiz reserves the right to make changes to these terms and conditions at any time by posting the changed version at https://workiz.com/terms-service/. (Workiz may – but is not obligated to – also provide notice through a pop-up or banner within the Software, by sending an email to any address Customer may have used to register for the Software, or through other similar mechanisms.) Such changes will be effective ten (10) days after such posting, and Customer’s continued use of the Service thereafter shall constitute Customer’s acceptance of such changes. In such cases, Workiz will also update the “Last Updated” date and “Version” number set forth above. Please check the above webpage regularly for any changes to this these terms and conditions.
These Terms contains a range of capitalized terms, some of which are defined in these Section, and some of which are defined elsewhere. The Section and sub-Section headings in these Terms are for convenience of reading only, and may not to be used or relied upon for interpretive purposes.
“Affiliate” means, with respect to either party, any person, organization or entity controlling, controlled by, or under common control with, such party, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
“Content” means any text, data, information, files, images, graphics, sounds, videos, code, audio clips, links, and/or other similar materials.
“Customer Content” means any Content inputted or uploaded to the Service, or transmitted through the Service, by or on behalf of Customer (such as SMS messages sent by Customer to its clients).
“Feature” means any module, tool, functionality, or feature of the Service (including without limitation the voicemail services, text messages services, transcription services, call recording and tracking services, and phone masking services) provided or made available directly by Workiz or via a Third Party App (defined below).
“Free User” means an employee or contractor of Customer who does not have Pro User access to the Service, but can be assigned to jobs, receive and respond to notifications, and view job reports.
“Intellectual Property” means any and all inventions, invention disclosures, discoveries, improvements, works of authorship, technical information, data, databases, know-how, show-how, designs, ideas, drawings, logos, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, software (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property or technology, in any format and media, anywhere in the world.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to Intellectual Property, including without limitation patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
“Pro User” means an employee, contractor, agent, representative or consultant of Customer whom the Customer authorizes to access and use the Service via the Account (defined below), and to perform administrative tasks such as scheduling, dispatching, and invoicing.
“Service” means Workiz’s proprietary field service management (FSM) software-as-a-service, as operated by Workiz’s proprietary platform and other Intellectual Property.
“Service Package” means the volume (such as number of Pro Users) and Feature permissions purchased under (and specified in) the Sales Order.
“Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor Law; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA“), and Customer also agrees that Workiz is not acting as Customer’s Business Associate or subcontractor (as such terms are defined under HIPAA); (iii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (iv) other information subject to regulation or protection under specific Laws, such as the United States’ Gramm-Leach-Bliley Act (or related Laws); (v) social security numbers, national insurance numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic Laws.
“Site” means https://workiz.com/
“Third Party Apps” means those third party online applications and platforms that are offered via the Services, or to which Customer integrates the Service (if applicable).
“Update” means an upgrade or update (such as a fix or patch) to or of the Service, excluding new Features.
“Workiz App” means Workiz’s proprietary mobile application for use in connection with the Service.
“Workiz Content” means any Content (excluding Customer Content) appearing or made available on or in the Service. Unless the context requires otherwise, references herein to the “Service” shall be deemed to include the Workiz App.
3.1 Subscription. Subject to the terms and conditions of this Agreement, Workiz grants Customer a limited, non-exclusive, non-assignable, non-sublicensable license and right, during the Term (defined below), to do the following (collectively, the “Subscription“):
(a) access and use the Service for Customer’s own internal end-use business purposes; and
(b) download and use the Workiz App on devices owned or controlled by Pro Users.
The Subscription shall be subject to the corresponding Service Package, as well as any other limitations or conditions specified in the Sales Order. Use of the Workiz App may be subject to additional licensing terms (“App EULA“).
3.2 Free Trial. For each Subscription, Workiz may offer a free trial period (the default is 14 days, unless configured otherwise by Workiz) (“Free Trial” and “Free Trial Period“) prior to charging for the Fees. The Free Trial, if any, shall commence on the date that Customer commences access or use of the Service, and will terminate at the end of the Free Trial Period, or sooner if: (a) Customer proceeds to begin paying the applicable Fees, (b) Customer requests to cancel the Subscription, or (c) the Free Trial is terminated by Workiz, in its sole discretion. Upon termination of the Free Trial, and unless Customer has cancelled the Subscription or Workiz has terminated the Free Trial, the Fees shall become immediately due and payable (and if no payment or billing information have been provided, Customer shall, and may be required, to provide such information). Free Trials are permitted solely for Customer to determine whether to proceed to a paid Subscription. Free Trials may not include all Features. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WORKIZ AND WORKIZ AFFILIATES WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO FREE TRIALS, AND WORKIZ HAS THE RIGHT TO TERMINATE A FREE TRIAL AT ANY TIME AND FOR ANY REASON.
3.3 Restrictions. As a condition to the Subscription, Customer shall not do (or permit or encourage to be done) any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, alter, adapt, arrange, or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of devices or users that directly access or use the Service (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the Subscription; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Service by Customer; or (l) take any action that imposes or may impose (as determined in Workiz’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure. References in this paragraph to the “Service” shall also be deemed to include Workiz Content.
3.4 Reservation of Rights. For the avoidance of doubt, the Service (including any copies thereof) is only licensed hereunder, and no title in or to the Software (or such copies) passes to Customer. Any rights not expressly granted herein are hereby reserved by Workiz and its licensors, and, except for the Subscription, Customer is granted no other right or license to the Service, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
3.5 Hosting and Availability. The Service will be hosted by a third party hosting services provider selected by Workiz from time to time (each, a “Hosting Provider“), and accordingly the availability of the Service shall be in accordance with the Hosting Provider’s then-current uptime commitments. In the event Workiz decides to host the Service internally on Workiz’s own servers under this Agreement, then, at the written request of Customer, the parties agree to negotiate in good faith an addendum to this Agreement to address Service uptime availability.
The Service is not intended to, and will not, operate as a data storage or archiving product or service, and Customer agrees not to rely on the Service for the storage of any Customer Content whatsoever. Customer is solely responsible and liable for the maintenance and backup of all Customer Content.
As between Customer and Workiz, Customer is solely responsible and liable for (and agrees to hold harmless and release Workiz and all Workiz Affiliates from) all Customer Content, and for its use of the foregoing, as well as for the consequences of inputting, uploading, or transmitting Customer Content (including without limitation, for obtaining any licenses, permissions, consents, approvals, and authorizations from individuals appearing therein), and for the way in which it is used by others. Customer hereby represents and warrants that: (a) its Customer Content does not, and will not, infringe, misappropriate, or violate any third party’s Intellectual Property Rights, privacy rights, or any Law; (b) its Customer Content is not, and will not be, disparaging, libelous, threatening, offensive, harassing, deceptive, abusive, promoting of violence, illegal drugs, illegal arms trafficking, or illegal gambling, and does not, and will not, contain obscenity or pornography, create any risk to a person’s safety or health, impersonate another person, compromise national security, or interfere with an investigation by law enforcement; (c) its Customer Content does not, and will not, contain any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; (d) it has obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, approvals, and authorizations required in connection with Customer Content; and (e) the content, type and quantity of Customer Content has not been authorized by Workiz and is uploaded to the Service at Customer’s sole risk and discretion. Unless specifically requested by the Service, or strictly required for use of the Service, Customer represents and warrants that Customer Content will not include any Sensitive Data.
Workiz reserves the right to remove, modify, and/or add Features at any time, without any notice or obligation to Customer, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Workiz in its sole discretion or required by the applicable third party provider. Moreover, if Workiz determines that Customer is in breach of any provision of this Agreement, Workiz reserves the right to block or suspend Customer from certain Features. Workiz may in its sole discretion charge for Features as part of the Fees and/or require additional personal information. Customer acknowledges and agrees that just because Workiz makes a Feature available, it does not mean Workiz endorses, or can otherwise control, every manner in which such Feature is used. Each Feature may be accompanied by separate or additional terms and conditions, as well as additional fees (in each case, “Feature Specific Terms“). Unless stated otherwise in Feature Specific Terms, all Feature Specific Terms apply in addition to (and not instead of) this Agreement.
8.1 Updates. All references herein to the “Service” shall include the Updates provided by or on behalf of Workiz under this Agreement. Workiz may from time to time provide Updates, but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current internal policies Workiz may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Workiz in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to Customer, and Customer consents to any such automatic updating or upgrading of the Service. In some cases, Customer may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, as well as additional fees (in each case, “Update Specific Terms“). Unless stated otherwise in Update Specific Terms, all Update Specific Terms apply in addition to (and not instead of) this Agreement.
8.2 Support. Workiz (and/or a Workiz Affiliate or subcontractor) will use commercially reasonable efforts to provide Service-related technical support via any helpdesk or online portal offered via the Service or Site. For further information on such technical support see https://workiz.com/support/. If a problem or error relates to a Feature provided via a Third Party App, then technical support may be provided by the applicable third party provider.
9.1 Service; Feedback. Customer acknowledges that the Service is or may be protected by Intellectual Property (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by Workiz and its licensors. As between Customer and Workiz, Workiz is the sole and exclusive owner of all Intellectual Property Rights in and to the Service and all Workiz Content. For the avoidance of doubt, “Workiz” (and its respective logos) are trademarks of Workiz and/or Workiz Affiliates, and all other trademarks appearing on or in the Service are the trademarks of their respective owners. If Customer provides Workiz with any ideas, suggestions, or similar feedback about performance of the Service or for improving the Service (“Feedback“), Customer hereby grants to each of Workiz and all Workiz Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable, and perpetual license, to access, use, reproduce, distribute, publish, broadcast, make available to the public, modify, adapt, edit, create derivative works of, publicly display, publically perform, and otherwise commercially exploit such Feedback, in any media format and through any media channels (now known or hereafter developed) (the “Feedback License“).
9.2 Customer Content Ownership and Licenses. As between Customer and Workiz, Customer is the sole and exclusive owner of Customer Content. Notwithstanding such ownership, Customer hereby grants to each of Workiz and all Workiz Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels (now known or hereafter developed) to do the following (collectively, the “Customer Content License“):
(a) to process Customer’s Customer Content to perform under this Agreement, including without limitation to provide Customer with the functionality of the Service and any support; and
(b) to process Customer’s Customer Content and Customer’s usage of the Service on an aggregated or otherwise anonymous basis, for the purposes of improving the Service, analytics, and generally research and development.
10.1 Fees. Customer shall pay all fees stated in the applicable Sales Order (“Fees“). Fees are based on the Service Package purchased, regardless of actual usage. In the event Workiz increases pricing (for Pro Users and/or Features), such increased pricing will take effect at the next Billing Cycle (and Workiz shall use commercially reasonable efforts to give Customer at least thirty (30) days’ prior notice of such increase). Service Packages can either be the ‘default’ packages offered via the Site (“Default Service Packages“) or ‘customized’ packages separately negotiated with Workiz (“Customized Service Packages“). Service Packages may be upgraded (e.g. adding Pro Users or Features) (“Package Upgrades“) or downgraded (e.g. removing Pro Users or Features) (“Package Downgrades“) in accordance with this Section 10.
10.2 Default Service Package Changes. The following applies to Default Service Packages: Customer is only entitled to Package Downgrades if the Billing Cycle is calendar monthly (i.e. not Package Downgrades are permitted for annual Billing Cycles). Customer is entitled to Package Upgrades. To the extent entitled, Package Downgrades and Package Upgrades may be configured by Customer at any time, via the functionality offered in the Service, or, in the absence of such functionality, via written request to Workiz.
10.3 Customized Service Package Changes. The following applies to Customized Service Packages: Customer is not entitled to Package Downgrades. Customer may request a Package Upgrade at any time, but not later than five (5) business days prior to subsequent Billing Cycle, by submitting Workiz a request in writing or via any functionality offered (“Modification Request”). Each Modification Request shall include: (a) current, complete and accurate information on Customer’s Service Package; and (b) details of the required Package Modification. Approval of a Modification Request is in Workiz’s sole discretion. Following Workiz’s receipt of the Modification Request, Workiz shall promptly confirm in writing to the Customer: (i) whether the Modification Request has been approved or rejected; (ii) when the applicable Package Upgrade will be implemented; and (iii) any changes to Customer’s Fees due to the applicable Package Upgrade. Changes to Customer’s Fees (if any) shall be reflected in accordance with Section 10.3 (Payment Terms).
10.4 Payment Terms. The payments made to Workiz shall be made in advance and on a recurring basis (each, a “Billing Cycle”). Billing Cycles are based on the Subscription term specified in the Sales Order (i.e. calendar monthly basis or annual basis). For the avoidance of doubt, it is agreed that:
(a) In respect of a calendar monthly Billing Cycle, if the Effective Date is after the 1st day of a given calendar month, the Fees for that calendar month will be pro-rated.
(b) The increased Fees for a Package Upgrade becomes immediately due when the Package Upgrade takes effect, and if the Package Upgrade takes effect during the then-current Term, there will be a pro-rated adjustment of the Fees for the remainder of the then-current Term.
(c) In the event of a Package Downgrade taking effect after the 1st day of a given calendar month, Customer will not be entitled to a pro-rated refund of that calendar month’s Fees, but will instead receive a pro-rated credit against the subsequent calendar month’s Fees.
All Billing Cycles are renewed automatically at the commencement of each Renewal Term (defined below). Unless expressly stated otherwise in the Sales Order: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are payable in advance; (c) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of: (i) the rate of one and a half percent (1.5%) per month; and (ii) the highest amount permitted by applicable Law.
10.5 Taxes. Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Workiz’s net income. In the event that Customer is required by any Law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Workiz shall be increased by the amount necessary so that Workiz receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Customer not made any such withholding or deduction.
10.6 Payment Processing. Customer shall provide Workiz accurate and complete billing information including without limitation full name, address, state, zip code, telephone number, and a valid payment method information. Customer agrees to promptly notify Workiz of any changes to the Customer’s billing information. Customer authorizes Workiz (either directly or through third parties) to request and collect payment on a recurring basis (or otherwise charge or take any other billing actions) from the Customer. In case Customer pays with a credit card, Customer hereby authorizes Workiz to charge the credit card on a recurring basis for all applicable Fees and to store the credit card information on Workiz’s (and its third parties’ payment processing providers’) servers. Payment of Fees may be processed through a third-party payment processing service, and additional terms may apply to such payments.
11.1 THE SERVICE, ANY WORKIZ CONTENT, AND ANY THIRD PARTY CONTENT AND THIRD PARTY APPS ARE PROVIDED AND MADE AVAILABLE TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY WORKIZ AND ITS LICENSORS AND SUPPLIERS.
11.2 CUSTOMER AGREES THAT WORKIZ WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF WORKIZ’S OR SERVICE-RELATED SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
11.3 IN ADDITION, NEITHER WORKIZ NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
(A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE SERVICE, WORKIZ CONTENT, THIRD PARTY APPS, OR THIRD PARTY CONTENT;
(B) THAT CUSTOMER’S USE OF, OR RELIANCE UPON, THE SERVICE, WORKIZ CONTENT, THIRD PARTY APPS, OR THIRD PARTY CONTENT WILL MEET ANY REQUIRMENTS OR EXPECTATIONS;
(C) THAT THE SERVICE, WORKIZ CONTENT, THIRD PARTY APPS, OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED; OR
(D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
12.1 IN NO EVENT SHALL WORKIZ, ANY WORKIZ AFFILIATE, OR ANY OF THEIR RESPECTIVE LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT FOR:
(A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
(C) ANY LOSS OF, THEFT OF, OR DAMAGE TO, CUSTOMER CONTENT, DATA, NETWORKS, HARDWARE, REPUTATION, OR GOODWILL; AND/OR
(D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
12.2 THE COMBINED AGGREGATE LIABILITY OF WORKIZ AND ALL WORKIZ AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER (IF ANY) TO WORKIZ OR A WORKIZ AFFILIATE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
12.3 THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF WORKIZ OR A WORKIZ AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STATUTORY BREACH, STRICT LIABILITY, CONTRACT OR TORT.
12.4 NO ACTION, REGARDLESS OF FORM, MAY BE BROUGHT BY CUSTOMER AFTER THE EARLIER OF: (A) 12 MONTHS AFTER THE DATE ON WHICH CUSTOMER BECOMES AWARE THAT A CAUSE OF ACTION HAS ARISEN, OR (B) THE PERIOD SET FORTH UNDER THE APPLICABLE LAW.
If any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Workiz, a Workiz Affiliate, and/or any of their respective directors, officers, employees, or representatives (each, an “Indemnitee“), and it is based upon or arises from:
(a) Customer’s use of the Service;
(b) Customer’s breach of any provision of this Agreement; and/or
(c) any demand, claim, suit, action, or proceeding brought by, or loss or damage incurred or suffered by, any Free User, Pro User, or client of Customer
(each of the foregoing, an “Indemnity Claim“) then, upon written request by Workiz (to be decided in its sole discretion), Customer agrees to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (c) Workiz reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases Customer agrees to reasonably cooperate with Workiz’s defense activities at Customer’s own cost and expense; and (d) Customer shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
In addition, and regardless of whether (or the extent to which) Customer controlled or participated in the defense and/or settlement of an Indemnity Claim, Customer agrees to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
14.1 Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the Subscription term stated in the applicable Sales Order (the “Initial Term“), following which this Agreement shall automatically renew for successive periods of equal length (each, a “Renewal Term“, and together with the Initial Term, the “Term“).
14.2 Termination by Workiz for Convenience. Workiz reserves the right to terminate this Agreement for convenience, at any time, and without notice or obligation to Customer, and Customer agrees that Workiz shall have no liability to Customer for any such termination; provided, however, that if terminated, then Workiz shall refund to Customer a pro-rated amount of any pre-paid and unused Fees based on the remainder of the Term.
14.3 Termination by Workiz for Cause. Workiz may terminate this Agreement immediately upon notice to Customer (which may be via email or via the functionality of the Service): (a) if Customer commits a material breach under this Agreement (and default of any payment obligations shall be deemed a material breach); and/or (b) upon the occurrence of any of the following events in respect of Customer: (i) a receiver is appointed for Customer, which appointment is not dismissed within sixty (60) days; (ii) Customer makes a general assignment for the benefit of its creditors; (iii) Customer commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) Customer is liquidating, dissolving or ceasing normal business operations.
14.4 Termination by Customer. Customer may terminate this Agreement for convenience or for any other reason, at any time, by sending a termination notice to firstname.lastname@example.org, in which case termination will take effect at the end of the then-current Billing Cycle, and Customer will not be charged for the subsequent Billing Cycle. For the avoidance of doubt, any pre-paid Fees will not be refunded. If Customer objects to any provision of this Agreement, or becomes dissatisfied with the Service in any way, Customer agrees that its sole remedy, and Workiz’s sole liability, is for Customer to terminate this Agreement as aforementioned.
Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement: (a) the Subscription will automatically terminate and be deemed revoked, and Customer will immediately lose all access to and use of the Service; (b) Customer’s Account (and related Pro User access credentials) shall be terminated, and Customer shall be responsible for download or backing up any Customer Content, and Workiz may permanently delete Customer’s Customer Content from Workiz’s databases and servers hosting the Service; and (c) Customer shall promptly pay any unpaid amounts that are outstanding as of termination. Sections 9 (Ownership and Licenses) and 11 (Disclaimers) through 17 (General) inclusive, as well as any other provision which is intended to survive termination of this Agreement, shall survive termination.
This Agreement (including its validity) shall be governed by, and construed in accordance with, the laws of the State of California, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to this Agreement and are hereby disclaimed.
Any claim, dispute or controversy under, or otherwise in connection with, this Agreement (a “Dispute“) shall be subject to the exclusive jurisdiction and venue of the courts located in San Diego County, California. Customer hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waives any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Notwithstanding the foregoing, Workiz reserves the right to seek equitable relief in any court worldwide of competent jurisdiction. Furthermore, the parties hereby irrevocably and unconditionally waive the right to litigate such Disputes in court before a jury.
17.1 Entire Agreement. This Agreement represents the entire agreement between Workiz and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and Workiz with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the Site. To the extent of any conflict or inconsistency between these terms and conditions on the one hand, and the Sales Order on the other hand, the former shall prevail (unless the Sales Order expressly overrides a provision herein).
17.2 Modifications to Agreement. Workiz may, from time to time and in its sole discretion, modify these terms and conditions, with notice to Customer via email or via the Service. Except as otherwise indicated below, modifications to these terms and conditions will automatically take effect under this Agreement and apply to Customer as of the next Renewal Term (if any). Notwithstanding the foregoing, in some cases (for example, to address compliance with Laws, or as necessary for new Features) Workiz may specify that such modifications become effective during the then-current Term. If the effective date of such modifications is during the then-current Term, and Customer objects to the modifications, then, as Customer’s sole remedy, and Workiz’s sole liability, Customer may terminate the affected Sales Order upon written notice to Workiz and receive a pro-rated refund of any pre-paid Fees hereunder based on the remaining period of the then-current Term; provided, however, that in order to exercise this right, Customer must provide Workiz with written notice of its objection and termination (which notice must include an explicit reference to the modification to which Customer objects) within thirty (30) days of Workiz’s notice of the modification.
17.3 Language; Electronic Contract. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement, Customer hereby irrevocably waives, to the maximum extent legally permitted, any Law applicable to Customer requiring that the Agreement be localized to meet Customer’s language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. Workiz may be able (but is not obligated) to provide Customer with copies of this Agreement on written request; however, please be sure to print a copy of this Agreement for Customer’s own records.
17.4 Workiz Affiliates. At Workiz’s sole discretion, any Workiz obligation hereunder may be performed (in whole or in part), and any Workiz right or remedy may be exercised (in whole or in part), by a Workiz Affiliate. Without limiting the generality of the foregoing, Workiz may assign its right to invoice and receive payments under this Agreement to a Workiz Affiliate.
17.5 Assignment. Workiz may assign this Agreement (or any of its rights and/or obligations hereunder) without Customer’s consent, and without notice or obligation to Customer. This Agreement is personal to Customer, and Customer shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without Workiz’s express prior written consent. Any prohibited assignment shall be null and void.
17.6 GDPR. Customer hereby represents and warrants that it will: (i) provide all appropriate notices, (ii) obtain all required informed consents and/or have any and all ongoing legal bases, and (iii) comply at all times with any and all applicable privacy and data protection Laws (including, without limitation, the EU General Data Protection Regulation (“GDPR”)), for allowing Workiz to use and process Customer Content in accordance with this Agreement (including, without limitation, the provision of such Customer Content to Workiz (or access thereto) and the transfer of such Customer Content by Workiz to its Affiliates, and subcontractors, including transfers outside of the European Economic Area), for the provision of the Service and the performance of this Agreement. To the extent that Customer needs a data processing agreement, Customer shall download Workiz’s Data Processing Agreement (“DPA”) available on the Site and return it signed to Workiz as described therein. In the event Customer fails to comply with any data protection or privacy Law (such as the GDPR) and/or any provision of the DPA, and/or fails to return an executed version of the DPA to Workiz, then: (a) to the maximum extent permitted by Law, Customer shall be solely and fully responsible and liable for any such breach, violation, infringement, and/or processing of personal data without a DPA by Workiz and/or its Affiliates (including, without limitation, their respective employees, officers, directors, subcontractors and agents); (b) in the event of any claim of any kind related to any such breach, violation, or infringement, and/or any claim related to processing of personal data without a DPA, Customer shall defend, hold harmless and indemnify Workiz and its Affiliates (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees; and (c) any limitations on, or exclusions of, of Customer’s liability under this Agreement shall not apply in connection with the above subparagraphs (a) and (b).
17.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
17.8 Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
17.9 Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by Workiz, the writing must be duly signed by an authorized representative of Workiz), and shall be valid only in the specific instance in which given.
17.10 Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
17.11 Notices. Customer agree that Workiz may send Customer notices by email, via Customer’s Account, by regular mail, and/or via postings on or through the functionality of the Service. Except as stated otherwise in this Agreement or required by Law applicable to Customer, Customer agrees to send all notices to Workiz, to email@example.com.
17.12 No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Workiz Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
17.13 U.S. Government Rights. The Service is “commercial computer software” and the Documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Customer is an agency, department, employee or other entity of the United States Government, then Customer’s access to and use of the Service shall be subject solely to the terms and conditions of this Agreement.
17.14 Third Party Charges. Customer’s use of the Service may require and utilize an internet connection or data access. To the extent that third party service provider or carrier charges for internet or data usage are applicable, Customer shall be solely responsible and liable for those charges.
17.15 Export Compliance. Customer represents and warrants (on behalf of itself and its Pro Users and Free Users) that: (a) it is not a resident of (or will use the Service in) a country that the U.S. government has embargoed for use of the Service, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Customer breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Service, Customer agrees to indemnify and hold harmless Workiz and all Workiz Affiliates (including their respective directors, officers, and employees) for any fines and/or penalties imposed upon Workiz or an Workiz Affiliate (or such persons) as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or Workiz, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.