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.
“Cloud Services” means WorkJam’s proprietary digital frontline workforce management platform, available online and as web and mobile applications, as well as ancillary online services, as described in the Documentation.
“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 setting forth the details of the Cloud Services subscription, 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.
“Professional Services” means the technology-related professional services in relation to the Cloud Services, including, without limitation, implementation, training, consulting, designing, developing and the delivery of industry expertise.
“Services” means the Cloud Services and Professional Services that are ordered by Customer under an Order Form or Statement of Work, and as described in the Documentation. The term “Services” excludes all 3rd-Party Applications.
“Statement of Work” means a document setting forth the non-recurring Professional Services to be provided by WorkJam to Customer, including any addenda and supplements thereto. By entering into a Statement of Work hereunder, and Affiliate agrees to be bound by the terms of this Agreement as if it were an original party thereto.
“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.
2.1 Provision of Services. WorkJam will make the Services available to Customer pursuant to this Agreement, any applicable Order Form or Statement of Work, and in accordance with laws and government regulations applicable to WorkJam, and subject to Customer’s and Users’ use of the Services in accordance with this Agreement, the Documentation, the applicable Order Form and/or Statement of Work.
2.2 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Cloud Services are purchased as subscriptions, (b) subscriptions for additional features, modules or aspects of the Cloud 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 Cloud Services will terminate on the same date as is provided for in the initial Order Form entered into by and between Customer and WorkJam. 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.
2.3 Support. WorkJam will provide applicable WorkJam standard support for the Cloud 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.
2.4 Interoperability with 3rd-Party Applications. For greater certainty, the Services are fully functional without any 3rd-Party Application and do not require the interoperation with any 3rd-Party Application. Consequently, the interoperability with any 3rd-Party Application and the Services is at the exclusive request of Customer. WorkJam cannot guarantee the continued availability of such interoperability if, for example and without limitation, the provider of a 3rd-Party Application ceases to make the 3rd-Party Application available for interoperation with the corresponding Service in a manner acceptable to WorkJam. In such circumstance, WorkJam may cease providing the Services without entitling Customer to any refund, credit, or other compensation for the Services.
3.1 Use of Customer Data. WorkJam will use Customer Data only as necessary to perform the Services pursuant to this Agreement and as further specified in the Documentation, and as instructed by Customer in its use of the Services. WorkJam will not sell, share, use, cache or disclose Customer Data outside of the provision of the Services to Customer as set forth in this Agreement and the Documentation, and as instructed by Customer in its use of the Services. Customer shall have the right upon notice to take reasonable and appropriate steps to stop and remediate unauthorized use of PII contained in Customer Data by WorkJam.
3.2 Administrative, Physical, and Technical Safeguards. WorkJam will maintain administrative, physical, and technical safeguards designed for the protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access, use, modification or disclosure of Customer Data by WorkJam personnel except: (a) to provide the Services, prevent or address service or technical problems, and as otherwise provided in the Agreement, (b) as required by applicable law, or (c) as Customer expressly permits in writing. For information on WorkJam’s current privacy practices, please review the WorkJam privacy policy at https://www.workjam.com/privacy-policy. 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.
3.3 Transfer of Customer Data. If Customer’s use of the Services involves utilizing 3rd-Party Applications, Customer consents to the transfer to and processing by providers of those 3rd-Party Applications of 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.
3.4 Customer Responsibilities Relating to Customer Data. Customer will: (i) obtain all necessary consents to use, upload or otherwise submit any Customer Data, including PII, to WorkJam through the Services, and (ii) be responsible for the continued accuracy, quality and legality of all Customer Data, how Customer acquired Customer Data, and for Customer process of Customer Data with the Services. 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.
3.5 Customer Data Portability and Deletion. WorkJam will process Customer Data for the duration of the Agreement, unless otherwise agreed upon in writing by the parties. 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.
3.6 Customer Data Incident Management and Notification. WorkJam maintains security incident management policies and procedures and shall notify Customer promptly after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Customer Data, including PII, transmitted, stored or otherwise processed by WorkJam of which WorkJam becomes aware (a “Customer Data Incident”). WorkJam shall make reasonable efforts to identify the cause of such Customer Data Incident and take such steps as WorkJam deems necessary and reasonable to remediate the cause of such a Customer Data Incident to the extent the remediation is within WorkJam’s reasonable control. The obligations herein shall not apply to incidents that are caused by Customer or Users.
3.7 Access to Certifications and Audits Information. Upon Customer’s written request at reasonable intervals, and subject to the confidentiality obligations set forth in the Agreement, WorkJam shall make available to Customer information regarding WorkJam’s compliance with applicable data protection obligations by way of submission of third-party audits information and certifications.
4.1 Usage Limitations. The Cloud Services are subject to usage limitations, including, for example, the subscription term and quantities specified in Order Forms, and Documentation. Unless otherwise specified, Customer agrees to the following:
a) a quantity in an Order Form refers to Users, and Customer may not permit the Cloud 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 Cloud 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 may 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 Cloud 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.
4.2 Other 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 or Statement of Work;
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, Order Form, or Statement of Work 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.
4.3 Other Customer Responsibilities. Customer will:
a) notify WorkJam promptly of any unauthorized access or use of the Services;
b) use Services only in accordance with this Agreement, Documentation, Order Forms, Statement of Work, applicable laws and government regulations, and for the avoidance of doubt, Customer shall be deemed responsible for Users’ compliance with this Agreement, Documentation, Order Forms, Statements of Work and for any non-compliance on the part of Customer and/or Users; and
c) comply with terms of service of any 3rd-Party Applications which interoperate with the Services.
5.1 Subscription Fees. Unless otherwise set forth in an Order Form, fees payable by Customer for the Cloud Services are based on subscriptions purchased by Customer, as set forth in an Order Form. Customer’s payment obligations for Cloud Services are non-cancelable, and fees paid are non-refundable. Subscription Fees will be invoiced quarterly in advance.
5.2 Professional Services Fees. Unless otherwise stated in a Statement of Work, Professional Services are provided on either a time-and-materials basis or a fixed fee, as set forth in a Statement of Work. Any time-and-material Statement of Work estimate is provided in good-faith for Customer’s budgeting and WorkJam’s resource-scheduling purposes, and such estimate could be exceeded. Professional Services Fees will be invoiced as specified in the applicable Statement of Work.
5.3 Billing Information and Payment. 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. Unless otherwise stated in the applicable Order Form or Statement of Work, all invoiced fees are due net thirty (30) days from the invoice date.
5.4 Acceleration and Suspension of Service. Without limiting WorkJam’s other rights and remedies contained herein and at law, if any amount owing by Customer under this or any other agreement for the Services is thirty (30) or more days overdue, WorkJam shall remind Customer of such overdue amount (the “Reminder Notice”). If Customer fails to pay the overdue amount within fifteen (15) days of the Reminder Notice, WorkJam will notify Customer that it shall suspend WorkJam’s Services to Customer (the “Suspension Notice”) unless all overdue amounts are paid in full within fifteen (15) days of such Suspension Notice. WorkJam may not exercise WorkJam’s rights under this Section 5.4 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 12.8 below, and (b) timely pays any undisputed charges in full.
5.5 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.
5.6 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.
6.1 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.
6.2 License by Customer to WorkJam. 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.
6.3 License by Customer 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.
6.4 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.
7.1 “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 and Statement of Works (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.
7.2 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.
7.3 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.
8.1 Authorization. Customer and WorkJam each represent that they both have full power and authority to enter into this Agreement, Documentation and applicable Order Forms or Statements of Work, which when executed and delivered, will constitute valid and legally binding obligations.
8.2 Warranty for Cloud Services. WorkJam warrants solely to Customer that (a) the Cloud Services will perform materially in accordance with the applicable Documentation 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 8.2, WorkJam will use commercially reasonable efforts to modify the Cloud Services to correct the non-conformity.
8.3 Warranty for Professional Services. WorkJam shall provide the Professional Services in a professional and workmanlike manner, in accordance with generally accepted industry standards. For any breach of the warranty set forth in this Section 8.3, Customer’s exclusive remedy and WorkJam’s entire liability will be the re-performance of the applicable Professional Services.
8.4 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, 8.2 AND 8.3, 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.
9.1 Indemnification by WorkJam.
9.1.1 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.
9.1.2 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.
9.1.3 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.
9.2 Indemnification by Customer.
9.2.1 Customer will defend WorkJam and WorkJam’s Affiliates against any claim, demand, suit or proceeding made or brought against WorkJam by a third-party:
a) alleging that the combination of a 3rd-Party Application or configuration provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or
b) arising from (i) Customer’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, (ii) any Customer Data or Customer’s use of Customer Data with the Services, or (iii) a 3rd-Party Application provided by Customer (each a “Claim Against WorkJam”).
9.2.2 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:
a) promptly give Customer written notice of the Claim Against WorkJam;
b) 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
c) gives Customer all reasonable assistance in the defense and settlement of any Claim Against WorkJam, at Customer’s expense.
9.3 Exclusive Remedy. This Section 9 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 9.
10.1 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.
10.2 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 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 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 10 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.
11.1 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.
11.2 Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year terms, unless either party provides written notice to the other party of its election to amend or not to renew no fewer than thirty (30) days prior to the expiration of the then-current Term.
11.3 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.
11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 11.3 (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. If this Agreement is terminated by WorkJam in accordance with Section 11.3 (Termination for Cause) above, in addition to any other potential remedies available to WorkJam elsewhere in this Agreement, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. 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.
11.5 Surviving Provisions. The sections titled “3.5 Customer Data Portability and Deletion”, “5 Fees and Payment”, “6 Proprietary Rights and Licenses”, “7 Confidentiality”, “9 Mutual Indemnification,” “10 Limitation of Liability,” “11.4 Refund or Payment upon Termination”, “11.5 Surviving Provisions” and “12 General Provisions” will survive any termination or expiration of this Agreement.
12.1 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 legal650@workjam.com.
12.2 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.3 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.
12.4 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.
12.5 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.
12.6 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.7 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.
12.8 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 12.8 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.
12.9 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.
12.10 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.
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