These Terms of Service (these "Terms of Service") set forth the terms and conditions upon which Worksoft, Inc. ("Worksoft") offers you, our third party customers (each, a "Customer"), access to Worksoft’s proprietary application software service hosted at AWS (the "Service") solely for the purposes of performing software output testing and analytics services in an online, software as a service environment. By clicking “I Agree” or by accessing or otherwise using the Service, you agree to be bound by these Terms. If you do not agree to these Terms of Service, do not access or use the Services. This is a legally enforceable contract.
1. LICENSE
1.1 Limited License to Use the Service. Subject to Customer’s compliance with the terms and conditions of these Terms of Service, Worksoft hereby grants to Customer a limited, personal, non-exclusive, non-transferable, license to access and use the Service solely for the purposes of performing software output testing and analytics services in an online, software as a service environment and for other related functions that the Service is designed to perform. Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by Worksoft to Customer hereunder, by implication, estoppel or otherwise. All such other licenses and rights are reserved unto Worksoft.
1.2 Browser Plug-In. Certain features of the Service may allow or require Customer to install a local browser plug-in to access certain functionality in the Service (the "Plug-In"). In such event, Worksoft hereby grants to Customer a limited, personal, non-exclusive, non-transferable, license to use any Worksoft intellectual property rights embedded in such Plug-In solely in connection with Customer’s use of the Service. Any Worksoft intellectual property rights embedded in such Plug-In are licensed, not sold, and any use of such intellectual property rights except in connection with the Service is expressly prohibited.
1.3 Other License Restrictions. Customer shall not (i) copy or modify the Service or any Plug-In for any purpose; (ii) reverse engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Service or any Plug-In; or (iii) distribute, disclose, market, rent, lease or otherwise transfer the Service or the Plug-In to any other person or entity.
2. FEES
2.1 Fees. In consideration of Worksoft providing access to the Service, Customer shall pay Worksoft the fees as agreed upon in writing or pursuant to an authorized promotion offered by Worksoft (the “Service Fees”). Worksoft may modify the Service Fees at any time in its sole discretion by posting such modified Service Fees on its website, provided, however, that any such modifications shall not apply to any Service Fees received from you prior to the date of such modification. Your continued use of the Service following any modification of the Service Fees shall constitute your acceptance to any modified Service Fees.
2.2 Payment. Full payment of the Service Fee shall be made by Customer to Worksoft through the payment method established in your user profile. You hereby authorize Worksoft to charge you the applicable Service Fee using such payment method.
2.3 Taxes. The Service Fee does not include any foreign, federal, state or local sales, use, value added, or other similar taxes, however designated, levied against the licensing, delivery or use of the Service. Customer shall pay, or reimburse Worksoft for, all such taxes imposed on Customer or Worksoft, provided, however, that Customer shall not be liable for any taxes based on Worksoft's net income.
3. INTELLECTUAL PROPERTY RIGHTS
3.1 Service. Worksoft retains all intellectual property rights in and to the Service (including any intellectual property rights embedded into any Plug-Ins) and all related documentation interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation. Except for rights specifically provided in this Agreement, Customer hereby assigns to Worksoft all other intellectual property rights it may now or hereafter possess in the Service (including any intellectual property rights embedded into any Plug-Ins) and related documentation, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights. Customer also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the Service, any Plug-In, and any related documentation delivered to Customer by Worksoft and all whole or partial copies thereof.
3.2 Customer Content. “Customer Content” means any code, data or other content uploaded to the Service or otherwise used in connection with the Customer’s use of the Service . Customer (or its licensors) shall own and continue to own all right, title and interest in and to the Customer Content. Customer hereby grants to Worksoft a royalty-free license to use the Customer Content solely in connection with the use thereof through the Service.
4. WARRANTIES AND LIMITATIONS OF LIABILITY
4.1 Warranty. Worksoft warrants that the Service will operate in substantial conformance its published documentation. Worksoft’s sole obligation and Customer’s sole remedy with respect to any failure of the Service to substantially conform to the documentation therefore is for Worksoft to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for Customer to terminate these Terms of Service pursuant to Section 7.2.
4.2 Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 4.1, WORKSOFT DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WORKSOFT DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT ALL FAILURES OF THE SERVICE TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED. WORKSOFT MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CUSTOMER CONTENT PROCESSED BY THE SERVICE.
4.3 Limitations of Liability. IN NO EVENT SHALL WORKSOFT BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. The aggregate liability of Worksoft for any and all claims arising under or in connection with these Terms of Service or its subject matter shall not exceed the amounts paid by Customer for the Service during the twelve (12) month period prior to when such claim arose.
4.4 Essential Part of the Bargain. The parties acknowledge that the disclaimers and limitations set forth in this Section 4 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.
5. INDEMNIFICATION; UNAUTHORIZED USE
5.1 Indemnification. Customer hereby agrees to indemnify and hold harmless Worksoft from any and all damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by Worksoft in connection with any claims that Worksoft is required to pay to third parties to the extent such damages, settlement amounts, costs and expenses are attributable to: (a) claims that the Customer Content infringes or misappropriate any patent, copyright, trademark, trade secret or other intellectual property right of a third party, or (b) Customer’s use of the Service to violate any applicable law or to otherwise violate any third party terms of use or acceptable use policies or other policies or agreements. Customer is responsible to secure all rights in and to all Customer Content.
5.2 Notification of Unauthorized Use. Customer shall promptly notify Worksoft in writing upon its discovery of any unauthorized use or infringement of the Service or the related documentation, or Worksoft 's intellectual property rights with respect thereto. Worksoft shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Worksoft brings such an action or proceeding, Customer shall cooperate and provide full information and assistance to Worksoft and its counsel in connection with any such action or proceeding.
6. CONFIDENTIALITY
6.1 Confidential Information. In connection with these Terms of Service, Customer has received, developed or been given access to, and shall in the future receive, develop or be given access to, certain information and materials deemed confidential and/or proprietary by Worksoft, including, without limitation, trade secrets, know-how, technical data and/or other information and materials pertaining to (i) these Terms of Service and its terms and conditions; (ii) the Service; (iii) other computer programs or computer systems of Worksoft; or (iv) Worksoft’s products, services, employees, operating methods, sources of supply, potential sources of supply, distribution methods, sales, sales plans, sales methods, profits, markets, financing or plans for future development (collectively, “Confidential Information”).
6.2 Exclusions. Confidential Information shall not include any information or materials which: (i) prior to disclosure, are or were known or generally available to the public; (ii) after disclosure, become known to the public through no act or omission of Customer or any other person with an obligation of confidentiality to Worksoft; (iii) are or were independently developed by or for Customer, as evidenced by written records of Customer; (iv) are required to be disclosed pursuant to an applicable law, rule, regulation, government requirement or court order, or the rules of any stock exchange (provided, however, that Customer shall advise Worksoft of such required disclosure promptly upon learning thereof in order to afford Worksoft a reasonable opportunity to contest, limit and/or assist Customer in crafting such disclosure); (v) as agreed to in writing by the parties hereto; or (vi) were submitted by Customer for distribution through the Service.
6.3 Protection of Confidential Information. Customer shall take all reasonable steps to prevent Worksoft’s Confidential Information from being disclosed to any other person. Upon termination of these Terms of Service, or at any other time upon the written request of Worksoft, all tangible Confidential Information of Worksoft (including, without limitation, all copies, synopses and summaries thereof, regardless of the form in which such information is stored), but excluding any Confidential Information prepared by or for Customer pursuant to these Terms of Service, shall be, at Customer’s option, promptly returned to Worksoft or destroyed.
7. TERM AND TERMINATION
7.1 Term. Customer’s access to the Services shall begin on the date Customer purchases such access and shall continue in force for the term specified in the pricing plan chosen by Customer, unless terminated earlier under the provisions of this Article 7.
7.2 Termination for Cause. In the event of any material breach of these Terms of Service, the non-breaching party may terminate this Agreement by giving 30 days' prior written notice to the other party; provided, however, that this Agreement shall not terminate if the other party has cured the breach prior to the expiration of such 30 day period, or if such breach cannot be cured within such 30 day period, the other party has taken steps within such 30 day period to cure the breach and thereafter cured such breach as soon as practicable.
7.3 Termination for Convenience. Worksoft may terminate Customer’s use of the Service at any time, provided, however, that in the event Worksoft terminates Customer’s use of the Service without cause, Worksoft shall refund any pre-paid but unused Service Fees paid prior to such termination which shall be determined in Worksoft’s reasonable discretion.
7.4 Termination for Insolvency. Either party may terminate this Agreement immediately, (a) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (and if such proceeding is instituted against it, such proceeding is not dismissed within sixty (60) days), (b) upon the other party's making an assignment for the benefit of creditors, or (c) upon the other party's dissolution or ceasing to do business.
7.5 Effect of Termination. Upon the expiration or sooner termination of these Terms of Service, all license rights of Customer under these Terms of Service shall automatically and immediately cease and Customer shall promptly cease all uses of the Service. Sections 3, 4.2, 4.3, 4.4, 5, 6, 7.5, and 8 shall survive the expiration or sooner termination of these Terms of Service.
8. PRIVACY
We are strongly committed to protecting the privacy of your personal information. Worksoft’s Privacy Policy (“Privacy Policy”), explains what information Worksoft collects about you and why, what we do with that information, how we share it, and how we handle the content you place in our products and services. It also explains the choices available to you regarding our use of your personal information and how you can access and update this information.
Worksoft Privacy Policy is part of and incorporated into this Terms of Service.
9. GENERAL
9.1 Export Compliance. The Service may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to access the Service without prior written permission from Worksoft once granted by the appropriate jurisdiction. The rights and obligations of Customer shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. Customer each shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. Customer shall indemnify and hold harmless Worksoft from and against any and all losses, claims and expenses incurred by Worksoft as a result of the breach of Customer's obligations under this Section.
9.2 Independent Contractors. In making and performing these Terms of Service, the parties are acting and shall act as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
9.3 Force Majeure. In the event that Worksoft is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, Worksoft shall not be liable to the Customer for any damages resulting from such failure to perform or otherwise from such causes.
9.4 Governing Law. These Terms of Service and its subject matter shall be governed in accordance with the law of the State of Delaware, without reference to its conflict of laws principles.
9.5 Public Statements. Either party may disclose the existence of these Terms of Service but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other.
9.6 Assignment. Customer may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder to any third party without the prior written consent of Worksoft. Any purported assignment in contravention of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
9.7 Notices. All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of Worksoft, to the address set forth on the Worksoft website to the attention of the President; and (b) in the case of Customer, to the address set forth in its account information.
9.8 Entire Agreement; Amendment. These Terms of Service constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof. These Terms of Service may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both parties and attached hereto.
9.9 Waivers. A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.
