This WorkJam Subscription Agreement (“Agreement”) governs any order form (“Order Form”) signed by the customer identified in that Order Form (“Customer” or “Subscriber”) and the WorkJam company identified in that Order Form (“WorkJam”). Each Order Form and this Agreement, form the entire agreement that applies to WorkJam’s services. If any conflict exists between any of these documents, this Agreement will govern, followed by the Order Form.
1. Services, Payment & Taxes
Customer and its Affiliates may order WorkJam’s services by signing an Order Form. An “Affiliate” means an entity that controls, is controlled by, or under common control with, a party. WorkJam improves its services from time to time, and Customer may use these improvements for no additional fee. WorkJam provides some Services in the form of a software-as-a-service (“SAAS”) offering that does not require the use of WorkJam-provided Hardware. If Customer elects to order this SAAS offering, as further described in the applicable Order Form, upon WorkJam’s acceptance of the Order Form, WorkJam will provide a means for the Customer to directly activate the Service or will deliver to the email address specified by Customer on the Order Form a link to the SAAS offering for purposes of enabling Customer to activate the Service (“Activation Link”). WorkJam considers the Order Form accepted by WorkJam for this Service as a firm order and, therefore, the Service Commencement Date for these Services is the date on which the Activation Link is sent to Customer as Customer is then in control of initiating the service, regardless of whether Customer actually initiates the Service. If no Activation Link is sent to Customer, the Service Commencement Date is on the first day that the Service is made available to the Customer. The services may not always be available due to system maintenance or internet service disruptions. The services may be subject to additional requirements, limitations and restrictions depending on the specific services purchased by Customer. Customer will pay the fees for the services included in, and in accordance with, the Order Form. Unless otherwise indicated in the Order Form, Customer will pay WorkJam the amount stated in an Order Form within 30 days of the invoice date. Except as set forth in Section 5 below, Customer’s payment for services is non-refundable and the parties may not cancel any signed Order Form. Customer will maintain complete and accurate billing and contact information with WorkJam. Customer’s payments are subject to applicable governmental regulations and rulings, including withholding of taxes. Upon WorkJam’s request, Customer will provide WorkJam with copies of documents related to any withholding. WorkJam’s fees do not include any taxes, duties, assessments and similar charges, including sales, usage, excise, value added, and ad-valorem taxes based on the Agreement, any Order Forms executed hereunder, or use or receipt of the WorkJam services (collectively, “Taxes”). Customer shall be responsible for the payment of any such Taxes, including any interest or penalties assessed on such Taxes, and agrees to hold WorkJam harmless from all claims and liability arising from Customer’s failure to report or pay any such Taxes. Nothing in this section requires either party to pay income taxes or similar charges of the other party. All payments will be made in the currency indicated on the invoice. If no currency is indicated, payments will be made in U.S. dollars.
2. Customer’s Responsibilities
2.1 Use of Services. Customer may use WorkJam’s services only for its own use and for use by its employees. Customer will not directly or indirectly provide the services to any third party, except to its Affiliates. Customer is responsible for its Affiliates, and its and their employees and consultants, including their compliance with this Agreement. Customer will comply with all laws, orders, codes and regulations, including all privacy laws, in its use of the services.
2.2 Customer User. A “Customer User” is an employee or contractor that Customer authorizes to access the services. A Customer User must be a WorkJam registered user. Customer will designate through the service one Customer User for each seat it purchases. Customer will not, and will not permit a Customer User to, share a Customer User’s access with any other individual.
3. Confidential Information
“Confidential Information” means information provided by a party to the other party that is designated as confidential or reasonably should be considered confidential, excluding information that becomes public through no fault of the receiving party. Each party will use reasonable efforts to prevent the disclosure of the other party’s Confidential Information that are at least as strong as those it uses to protect its own confidential information, and will include disclosing confidential information only as required by law or under an obligation of confidentiality and only on a need-to-know basis.
4. Intellectual Property Rights and Ownership
The parties acknowledge that this Agreement does not transfer any right, title or interest in any intellectual property right to the other, except for Customer’s ability to access and use information regarding WorkJam registered users as expressly set forth in this Agreement but only for the time period set forth in the applicable Order Form. All Services (and any associated work product resulting therefrom) shall remain the property of WorkJam, and any Customer license to any Services (or associated work product), if any, shall be as provided for in the applicable Order Form. Customer and Customer Users are not obligated to provide WorkJam or its Affiliates with any suggestions, enhancement requests, recommendations or other feedback about the services or otherwise. If, however, Customer or a Customer User provides this type of feedback to WorkJam, WorkJam may use and modify this feedback without any restriction or payment.
5. Term and Termination
This Agreement is effective on the date the first Order Form is fully signed by Customer and WorkJam and remains in effect until terminated. Either party may terminate this Agreement or an applicable Order Form if the other party materially breaches this Agreement and fails to cure the breach within 30 days after receiving notice of the breach. Moreover, WorkJam may immediately suspend Customer’s access to and use of the services if Customer is in breach of Section 2 of this Agreement, provided that the suspension will continue only for as long as reasonably necessary for Customer to remedy the breach. In addition, WorkJam reserves the right to immediately terminate this Agreement (including Customer’s access to and use of the services), if WorkJam determines, in its sole business judgment, that the services are being used (a) fraudulently, (b) maliciously, or (c) by any person other than Customer. If Customer terminates this Agreement or an applicable Order Form due to WorkJam’s uncured breach, WorkJam will refund a pro-rata share of pre-paid fees. If all Order Forms under this Agreement have expired or been terminated, either party may terminate this Agreement for convenience by providing written notice to the other party. Upon termination of this Agreement or an Order Form, Customer will notify Customer Users that their access to the services has terminated, and WorkJam may withhold, remove or discard any content, data, or other information that Customer Users post or upload into WorkJam’s system while using the services. WorkJam is not obligated to store, maintain or provide a copy of any content, data or other information that Customer or Customer Users made available or provided when using the services. Sections 2 through 10 survive any termination or expiration of this Agreement.
6. EXPRESS OR IMPLIED WARRANTY
THE SERVICES ARE PROVIDED “AS IS”. WORKJAM MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SERVICES, INCLUDING ANY REPRESENTATION THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WORKJAM DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Third-Party Indemnity
7.1 Indemnification. Subject to Section 7.2 below, WorkJam will defend Customer, its Affiliates, and their respective directors, officers and employees (and pay any final court awards and settlements) from and against any third party claims directly resulting from the WorkJam services (if properly and lawfully used by Customer and Customer Users) infringing any copyright, trademark, trade secret or license right of a third party. Customer will defend and indemnify WorkJam, its Affiliates, and their respective directors, officers and employees from and against all third party claims to the extent resulting from or alleged to have resulted from (a) the infringement of a third party’s intellectual property right by content, data or other information posted or uploaded into WorkJam’s system by Customer (b) unauthorized use of the services, or (c) Customer’s breach of this Agreement.
7.2 Indemnification Procedures. Each party will promptly notify the other in writing of any third party claim when it receives any such claim. The indemnifying party will control the defense of the claim. The indemnifying party will obtain the other party’s prior written approval of the indemnifying party’s choice of legal counsel and any settlement or compromise of a claim. The indemnified party will not unreasonably withhold or delay its approval of the indemnifying party’s selection of counsel or of the request for settlement or compromise. The indemnified party will assist and cooperate in the defense as reasonably requested by the indemnifying party and at the indemnifying party’s expense. If the indemnifying party fails to notify the indemnified party of indemnifying party’s intent to take any action within 10 business days after receipt of a notice of a claim from the indemnified party, or to proceed in good faith with the prompt resolution of the claim, the indemnified party, with prior written notice to the indemnifying party and without waiving any rights to indemnification, may defend or settle the claim without the indemnifying party’s prior written consent. In this event, the indemnifying party will reimburse the indemnified party on demand for all damages incurred by the indemnified party in defending or settling the claim, including legal fees and costs.
8. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, WORKJAM, INCLUDING ITS AFFILIATES, WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT FOR (A) ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE OR LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID TO WORKJAM BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE 6-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT GIVING RISE TO THE LIABILITY. WORKJAM WILL NOT BE LIABLE FOR ANY UNAUTHORIZED THIRD PARTY ACCESS TO CUSTOMER’S OR CUSTOMER USERS’ CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK, OR SYSTEMS. THE PARTIES ACKNOWLEDGE THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS, AND FURTHER AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. Dispute Resolution; Governing Law
The parties will attempt to resolve any dispute related to this Agreement through good faith, informal negotiation. If initial negotiation does not resolve the dispute, each party will escalate the dispute to the executive sponsor of this Agreement to attempt to resolve the dispute. If the parties are unable to resolve the dispute through negotiation, the parties will select a mutually agreed mediator in a mutually agreed location to attempt to resolve the dispute. This Agreement is governed by the laws of the Province of Quebec, Canada, and any action or proceeding related to this Agreement must be brought in a court in the Province of Quebec, Canada. Each party irrevocably submits to the jurisdiction and venue of the applicable courts. 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. Customer will not seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Customer’s use of the service or the terms of this Agreement or any Order Form must be filed by Customer within one (1) year after such claim or cause of action arose or was reasonable discovered, whichever is later, or be forever barred.
Except as expressly stated in this Agreement, the parties will provide notices under this Agreement in writing and will deliver them by personal delivery or commercial overnight courier to the address of the other party set forth on the Order Form. Notices are effective on the date of delivery as indicated in the records of the courier. This Agreement does not create a partnership, agency relationship, or joint venture between the parties. Any assignment of this Agreement by Customer in whole or in part without WorkJam’s prior written consent will be null and void, except an assignment to a successor that is not a competitor of WorkJam’s made in connection with a merger or sale of all or substantially all of Customer’s assets or stock or to an Affiliate. Customer is responsible for any agents and contractors it uses in connection with the services, including compliance with this Agreement, and will notify WorkJam in writing of agencies that it uses in connection with the services. If this Agreement is translated into a language other than English, the translation is for convenience only, and the English language version will govern. WorkJam may monitor Customer’s use of the services to ensure compliance with this Agreement, and may conduct a reasonable audit of Customer, including Affiliates, if WorkJam reasonably believes that Customer is in breach of this Agreement. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect the parties’ intention and the remaining provisions will not be affected. The services may contain hyperlinks to websites that are not controlled by WorkJam. WorkJam is not responsible for and does not endorse or accept any responsibility over the contents or use of these websites, including, without limitation, the accuracy of any information, data, opinions, advice or statements made on these websites. The terms of this Agreement do not create rights enforceable by third parties and no third party is an intended beneficiary of this Agreement. WorkJam may change the terms of this Agreement from time to time. Upon any change in the terms of this Agreement, WorkJam will notify Customer by posting the changes on the WorkJam.com site. Customer’s continued use of the service constitutes an affirmative agreement by Customer to abide and be bound by the terms of this Agreement and its modifications.
WorkJam Confidential and Proprietary
Rev. February 14, 2017