MASTER SOFTWARE SUBSCIPTION AGREEMENT
Last update: August 10th, 2023
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN WORKJAM INC. (“WORKJAM,” “WE,” “US,” AND “OUR”) AND THE LEGAL ENTITY FOR WHICH YOU ARE ACTING (“CUSTOMER” AND “YOU”) AND SUPERSEDES ANY AND ALL PRE-PRINTED OR STANDARD TERMS THAT MAY APPEAR ON ANY OTHER DOCUMENT. NOTWITHSTANDING ANYTHING ELSE STATED HEREIN, IF YOU AND WORKJAM HAVE EXECUTED A WRITTEN AGREEMENT FOR THE ACCESS TO OR USE OF THE SERVICES (“SIGNED AGREEMENT”), THEN THE TERMS OF THE SIGNED AGREEMENT SHALL GOVERN AND CONTROL AND THIS AGREEMENT SHALL HAVE NO EFFECT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT ACCEPT THIS AGREEMENT AND DO NOT ACCESS OR USE THE SERVICES. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE ON WHICH YOU ENTER INTO AN ORDER FORM OR, IF EARLIER, WHEN YOU USE THE SERVICES (THE “EFFECTIVE DATE”).
In consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree that this Agreement applies to the Services ordered by you from us.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control” is defined as owning more than 50% of the voting shares of such entity.
“Customer Data” means electronic data and information input and/or uploaded by Customer or Users directly to the Services, excluding 3rd-Party Applications.
“Documentation” means the documentation applicable to the Services, including but not limited to policies and usage guides, in whatever form, which are provided by WorkJam and made available to Customers, as updated by WorkJam from time to time.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“3rd-Party Application” means any non-WorkJam web-based, mobile, offline or other software process or functionality that is used by Customer or contracted by Customer and interoperates with the Services, including, for example, an application that is developed by or for Customer.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and WorkJam, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Personally Identifiable Information” or ‘PII” refers to any information about an individual maintained by a party including: (a) any information that can be used to distinguish or trace an individual’s identity, and (b) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information. In this Agreement, an individual means a User. For clarity, PII includes, but is not limited to: full name, home or email addresses, any government-issued identification number (e.g., social security, passport, vehicle registration plate, driver’s license), face, fingerprints or any other biometric data, handwriting, telephone number, credit card numbers, digital identity, date of birth, birthplace, genetic information, login name, screen name or nickname.
“Services” means the WorkJam products and services that are ordered by Customer under an Order Form, and made available online by WorkJam, including mobile components, as described in the Documentation. The term “Services” excludes all 3rd-Party Applications.
“User” means, an individual who is registered with WorkJam by Customer and therefore authorized to use the Services under an active subscription, for whom the Services have been provisioned, with a log in-ready user account. Users may include, for example, Customer’s employees, consultants, contractors and agents, and third parties with which Customer transact business.
2. WorkJam Responsibilities
2.1 Provision of Services. WorkJam will make the Services available to Customer pursuant to this Agreement and any applicable Order Forms.
2.2 Support. WorkJam will provide applicable WorkJam standard support for the Services to Customer at no additional charge, in accordance with the then-current Service Level Agreement, accessible via https://www.workjam.com/service-level-agreement/, which support may be provided from locations and/or through use of its Affiliates or subcontracts, worldwide.
2.3 Protection of Customer Data.
2.3.2 WorkJam shall have the right to modify its security and privacy practices as it sees fit, provided that WorkJam will not materially decrease the overall security of the Services. If Customer’s use of the Services involves utilizing 3rd-Party Applications to access the Services, then Customer acknowledges that WorkJam may allow providers of those 3rd-Party Applications to access Customer Data as may be required for the interoperation of the Services with such 3rd-Party Applications. WorkJam shall not be responsible for any unauthorized access, use, modification or disclosure of Customer Data by or through the 3rd-Party Applications.
2.3.3 Customer agrees that it and its Users shall not use or otherwise include any sensitive PII (such as health, social security numbers or payment card information) in the Services. Customer represents that it has obtained all necessary consent, notice and authority to use, upload or otherwise submit any PII to WorkJam through the Services.
2.4 WorkJam Personnel. WorkJam will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with WorkJam’s obligations under this Agreement, except as otherwise specified herein.
3. Customer Responsibilities.
3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Services are purchased as subscriptions, (b) subscriptions for additional features, modules or aspects of the Services may be added during a subscription term, subject to Customer and WorkJam entering into a new Order Form, and (c) any added subscriptions for additional features, modules of aspects of the Services will terminate on the same date as is provided for in the initial Order Form entered into by and between Customer and WorkJam.
3.2 Usage Limitations. The Services are subject to usage limitations, including, for example, the subscription term and quantities specified in Order Forms, and Documentation. Unless otherwise specified:
a) a quantity in an Order Form refers to Users, and Customer may not permit the Services to be accessed by more than that number of Users;
b) a User’s password may not be shared with any other individual;
c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Services; and
d) Customer shall provide first level support for its Users, and in no event shall any User contact WorkJam directly regarding support issues.
If Customer exceeds a contractual usage limitation, WorkJam will work with Customer to seek to reduce Customer’s usage so that it conforms to that limitation. If, notwithstanding WorkJam’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services promptly upon WorkJam’s request, and/or pay any invoice for excess usage in accordance with its payment obligations as set forth in the initial Order Form entered into by and between Customer and WorkJam.
3.3 Other Usage Restrictions. Customer will not:
a) make the Services available to anyone other than Users, or use the Services for the benefit of, anyone other than Customer, unless expressly stated otherwise in an Order Form;
b) sell, resell, license, sublicense, distribute, make available, rent or lease the Services, or include the Services in a services bureau or outsourcing offering;
c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
d) use the Services Application to store or transmit Malicious Code;
e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein;
f) attempt to gain unauthorized access to the Services or its related systems or networks;
g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limitation, or to access or use any of WorkJam’s intellectual property except as permitted under this Agreement, an Order Form, or the Documentation;
h) modify, copy, or create derivative works based on the Services or any part, feature, function or user interface thereof, frame or mirror any part of the Services; or disassemble, reverse engineer, or decompile the Services.
Any use of the Services in breach of this Agreement, Documentation, or Order Forms, by Customer or Users that in WorkJam’s reasonable judgment, and in WorkJam’s sole discretion, threatens the security, integrity or availability of the Services, may result in WorkJam’s immediate suspension of the Services.
3.4 Other Customer Responsibilities. Customer will:
a) be responsible for the accuracy, quality and legality of all Customer Data, the means by which Customer acquired Customer Data and Customer use of Customer Data with the Services;
b) notify WorkJam promptly of any unauthorized access or use of the Services;
c) use Services only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and for the avoidance of doubt, Customer shall be deemed responsible for Users’ compliance with this Agreement, Documentation and Order Forms and responsible for any non-compliance on the part of Customer and/or Users; and
d) comply with terms of service of any 3rd-Party Applications which interoperate with the Services.
4. Fees and Payment.
4.1 Fees. Unless otherwise set forth in an Order Form, WorkJam will invoice Customer quarterly in advance and each invoice will be due and payable within thirty (30) days of receipt by Customer.
4.1.1 Fees payable by Customer are based on subscriptions purchased by Customer, as set forth in an Order Form, and are not based on actual usage.
4.1.2 Customer’s payment obligations are non-cancelable, and fees paid are non-refundable.
4.1.3 Quantities purchased, both in regard to functionalities and the total number of Users, as set forth in an applicable Order Form, cannot be decreased during the relevant subscription term set forth in that Order Form.
4.2 Customer Billing Information. Customer is responsible for providing timely, complete and accurate billing and contact information, including an approved purchase order if required, to WorkJam and notifying WorkJam of any changes to such information.
4.3 Suspension of Service and Acceleration. If any amount owing by Customer under this or any other agreement for the Services is thirty (30) or more days overdue, WorkJam may, without limiting WorkJam’s other rights and remedies, accelerate Customer unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend WorkJam’s Services to Customer until such amounts are paid in full. WorkJam will give Customer at least five (5) days prior notice that Customer account is overdue. WorkJam may not exercise WorkJam’s rights under this Section 4.3 if Customer: (a) disputes the applicable charges in good faith, timely, with detailed explanations and cooperating diligently to resolve the dispute in accordance with Section 11.7 below, and (b) timely pays any undisputed charges in full.
4.4 Taxes. WorkJam’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on WorkJam’s income.
4.5 Audit. WorkJam shall have the right to conduct a verification audit to determine that Customer is in compliance with the terms of this Agreement and any applicable Order Form. Customer shall reasonably cooperate with WorkJam and its third-party auditors, as applicable, including by making all books, facilities and systems pertaining to the use of the Services available. If such verification audit reveals unlicensed use, Customer shall promptly pay WorkJam the fees associated with such unlicensed use at WorkJam’s then current rates.
5. Proprietary Rights and Licenses.
5.1 Reservation of Rights. WorkJam reserves all of WorkJam’s right, title and interest in and to the Services, including all of WorkJam’s related intellectual property rights inherent therein, and all improvements, enhancements or modifications made by any party. No rights are granted to Customer hereunder other than the limited use rights as expressly granted to Customer as set forth herein.
5.2 License to Host Customer Data and Applications. Customer grants WorkJam a worldwide, limited-term license to host, copy, display and use any (i) 3rd-Party Applications and program code created by or for Customer using the Services or for use by Customer with the Services, and (ii) Customer Data, each as may be necessary for WorkJam to provide, and ensure proper operation of the Services and associated systems in accordance with this Agreement.
5.3 License to Use Feedback. Customer grants to WorkJam a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services, or to create new services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of the Services.
5.4 Aggregated Data. Customer grants WorkJam the right to compile, collect, copy, modify, publish and use data in aggregate form that is generated from, or based upon, Customer’s use of the Services and the Customer Data (“Aggregate Data”); provided that: (1) the Aggregate Data will not include Customer Data in a form that could be used to identify Customer or a User; and (2) WorkJam uses the Aggregate Data solely for data analytics, statistical reporting, research and development, product improvements or other lawful business purposes. Aggregate Data does not constitute Customer Data or PII. WorkJam retains all intellectual property rights in the Aggregate Data.
6.1 “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; WorkJam’s Confidential Information includes the Services and Documentation; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation to the Disclosing Party, (iii) is received from a third party without breach of any obligation to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, WorkJam may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or 3rd-Party Application Provider to the extent necessary to perform WorkJam’s obligations to Customer under this Agreement, under terms of confidentiality materially as protective as set forth herein.
6.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable and actual cost of compiling and providing secure access to that Confidential Information.
7. Representations and Warranties; Disclaimer.
7.1 Authorization. Customer and WorkJam each represent that they both have full power and authority to enter into this Agreement, Documentation and applicable Order Forms, which when executed and delivered, will constitute valid and legally binding obligations.
7.2 Warranty for Services. WorkJam warrants solely to Customer that the Services and will materially conform to the description set forth in this Agreement under normal use and circumstances when used consistently with the terms of this Agreement. As WorkJam’s sole and exclusive liability and Customer’s sole and exclusive remedy for any breach of the warranty set forth in this Section 7.2, WorkJam will use commercially reasonable efforts to modify the Services to correct the non-conformity.
7.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 AND 7.2, WORKJAM MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WORKJAM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WORKJAM DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY HOSTING SERVICES PROVIDERS.
8. Mutual indemnification.
8.1 Indemnification by WorkJam. WorkJam will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the Services, when properly used by Customer in accordance with this Agreement, Documentation and applicable Order Forms, infringe or misappropriate such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of a Claim Against Customer, provided that Customer:
a) promptly provides WorkJam written notice of the Claim Against Customer;
b) gives WorkJam sole control of the defense and settlement of the Claim Against Customer; and
c) gives WorkJam all reasonable assistance in the defense and settlement of any Claim Against Customer, at WorkJam’s expense.
8.1.1 If WorkJam receives information about an infringement or misappropriation claim related to the Services, WorkJam may in WorkJam’s discretion and at no cost to Customer:
a) modify the Services so that they no longer infringe or misappropriate;
b) obtain a license for Customer’s continued use of the Services in accordance with this Agreement; and/or
c) terminate Customer’s subscriptions for the Services, or a component thereof, upon thirty (30) days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions.
8.1.2 The above defense and indemnification obligations do not apply if:
a) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer;
b) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by WorkJam, if the Services or use thereof would not infringe without such combination;
c) a Claim Against Customer arises from Services for which there is no charge;
d) a Claim against Customer is based on traditional functionality that is or was in general use in the industry; or
e) a Claim Against Customer arises from Customer Data, a 3rd-Party Application or Customer use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.
8.2 Indemnification by Customer. Customer will defend WorkJam and WorkJam’s Affiliates against any claim, demand, suit or proceeding made or brought against WorkJam by a third-party alleging infringement or misappropriation of such third party’s intellectual property rights, or arising from:
a) any Customer Data or Customer’s or WorkJam’s use of the Customer Data hereunder;
b) a 3rd-Party Application;
c) the combination of a 3rd-Party Application or any other software, hardware, data or process not provided by WorkJam used with WorkJam’s Services, or arising from Customer use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form; or
d) Customer’s is in breach of Section 2.3 (8.2(a) – (d), each a “Claim Against WorkJam”).
Customer will indemnify and hold WorkJam harmless from any damages, fines, expenses, or costs of any kind (including without limitation reasonable attorney’s fees) arising or resulting from any such claim, including any amounts paid by WorkJam under a settlement approved by Customer in writing of, a Claim Against WorkJam, provided WorkJam:
i. promptly give Customer written notice of the Claim Against WorkJam;
ii. gives Customer sole control of the defense and settlement of the Claim Against WorkJam (except that Customer may not settle any Claim Against WorkJam unless it unconditionally releases WorkJam of all liability); and
iii. gives Customer all reasonable assistance in the defense and settlement of any Claim Against WorkJam, at Customer’s expense.
8.3 Exclusive Remedy. This Section 8 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 8.
9. Limitation of Liability.
9.1 Consequential Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WORKJAM SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN ANY WAY OUT OF THE SERVICES OR THIS AGREEMENT, NOR FOR ANY LOST PROFITS, LOST REVENUE, LOSS OF DATA OR COSTS OF RECREATING DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT OR SOFTWARE REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND EVEN IF WORKJAM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 General Liability Cap. THE CUMULATIVE, AGGREGATE LIABILITY OF WORKJAM FOR ALL CLAIMS OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY ORDER FORMS HEREUNDER IS LIMITED TO THE TOTAL AMOUNT OF ALL FEES PAID TO WORKJAM FOR THE SERVICES IN THE 6-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.3 IN ALL CASES, CUSTOMER’S EXCLUSIVE REMEDIES ARE SET FORTH IN THIS AGREEMENT WITH REGARD TO THE SERVICES. BOTH CUSTOMER AND WORKJAM HEREBY AGREE THAT THE FOREGOING LIMITATIONS AND WAIVERS SET FORTH IN THIS SECTION 9 APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. FURTHER, ANY ACTION PERMITTED UNDER THIS AGREEMENT AND NOT BROUGHT WITHIN TWELVE MONTHS AFTER THE OCCURRENCE OF THE ACT OR EVENT GIVING RISE TO THE LIABILITY IS BARRED.
10. Term and Termination.
10.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated, as set forth in the applicable Order Form.
10.2 Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form.
10.3 Termination for Cause. A party may terminate this Agreement for cause (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 10.3 (Termination for Cause) above, WorkJam will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to WorkJam for the period prior to the effective date of termination.
10.5 Customer Data Portability and Deletion. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, WorkJam will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, WorkJam will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in WorkJam’s systems or otherwise in WorkJam’s possession or control in accordance with its retention and destruction policies, unless legally prohibited.
10.6 Surviving Provisions. The sections titled “4 Fees and Payment,” “5 Proprietary Rights and Licenses,” “6 Confidentiality”, “8 Mutual Indemnification,” “9 Limitation of Liability,” “10.4 Refund or Payment upon Termination,” “10.5 Customer Data Portability and Deletion,” “10.6 Surviving Provisions” and “11 General Provisions” will survive any termination or expiration of this Agreement.
11. General Provisions.
11.1 Notices. Notices will be sent to the addresses set forth in the appliable Order Form. The notices will be deemed to have been given upon: (i) the date actually delivered in person; (ii) the day after the date sent by overnight courier; (iii) three (3) days following the date such notice was mailed by first class mail; or (iv) the same day sent by email to firstname.lastname@example.org.
11.2 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Customer and WorkJam regarding Customer use the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Customer purchase order or in any other of Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
11.3 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
11.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, WorkJam may assign this Agreement in its entirety (together with all Order Forms), without the Customer’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, consolidation or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.5 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
11.6 Governing Law. This Agreement is governed by the laws of the State of New York, except for its conflict of laws principles. The parties agree that any actions or proceedings relating to the Agreement shall be brought in the courts located in the borough of Manhattan, State of New York. The prevailing party in any litigation may seek to recover its legal fees and costs. Any breach of confidentiality obligations in this Agreement, or any unauthorized use of the Services or a party’s intellectual property by the other, may cause irreparable harm. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Any claim or cause of action by Customer against WorkJam must be filed by Customer within one (1) year after such claim or cause of action arose or be forever barred.
11.7 Dispute Resolution. Initially, in the event of a dispute arising out of or relating to this Agreement, or the breach thereof, Customer and WorkJam will attempt to resolve the dispute. If the parties are unable to resolve the dispute within five (5) business days, or as otherwise mutually agreed, either party will have the right to submit the dispute to the parties’ senior leadership team representatives. In the event the senior leadership representatives cannot resolve the dispute within 60 days from their first meeting, then the parties agree that the dispute shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction as provided herein. The venue for such arbitration shall be the State of New York. The provisions of this Subsection 11.7 will not apply to any dispute relating to the parties’ obligations of non-disclosure and confidentiality, nor to any unauthorized use of a party’s intellectual property.
11.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
11.9 Publicity. WorkJam may on one or more occasions reference Customer in advertisements, brochures, customer lists, presentations, financial reports or other marketing, promotional or related materials. In addition, upon Customer’s approval, which approval will not be unreasonably withheld, WorkJam may issue a press release (or similar public announcement or communication) publicizing the relationship between WorkJam and Customer created by this Agreement.