WorkWave™ General Terms and Conditions
These General Terms and Conditions (“General Terms”) are applicable to the sale, license, use and access to Subscription Service, the Licensed Software, the sale of Hardware Devices and the provision of Maintenance and Support Services, Consulting Services, Training or Marketing Services, or such other services as applicable,provided by WorkWave, LLC(“WorkWave”) or its designee to Customer, as specifically described in the applicable Order Form. Customer’s signature on the applicable Order Form shall signify Customer’s agreement to access, use or purchase the Products set forth in the Order Form, as well as Customer’s agreement to these General Terms, which together with the Order Form shall constitute a binding agreement between WorkWave and Customer (collectively, the “Agreement”). CUSTOMER AGREES THAT WORKWAVE MAY CHANGES THESE GENERAL TERMS AND CONDITIONS FROM TIME TO TIME, WITH OR WITHOUT NOTICE TO CUSTOMER AND THAT CUSTOMER IS RESPONSIBLE FOR REVIEWING THE WORKWAVE DATA SYSTEMS GENERAL TERMS AND CONDITIONS AVAILABLE AT WWW.WORKWAVE.COM/GENERAL-TERMS-AND-CONDITIONS.
“Consulting Services” means the optional consulting services provided by WorkWave, which may include, but are not limited to, data conversions, customizations, program modifications, training and other related services as further defined in the Order Form. WorkWave data conversion services descriptions and additional applicable terms are detailed in the Order Form.
“Customer” means the entity identified on the applicable Order Form, and is the entity receiving the Services described in the applicable Order Form.
“Customer Data” means any data or information provided to WorkWave by Customer specific to the Services and used by Customer in the course of implementing and/or using the Products.
“Documentation” means WorkWave’s then current published electronic and on-line help made generally available to its customers for the applicable Products.
“Hardware Devices” means any physical device, which may include software but is not primarily software based, sold or made availableto Customer by WorkWave. Examples of Hardware Devices may include GPS or handheld devices. The specific devices purchased or made available will be specified in the applicable Order Form.
“Lead Information” means the name and related information of a particular consumer or business entity obtained via WorkWave’s Marketing Services, who expresses interest in Customer’s products or services. Lead Information shall not be considered Customer Data.
“Marketing Services” means the optional marketing services provided by WorkWave, which may include, but are not limited to, website development and hosting, lead generation services,search engine optimization and social media content creation as listed and described in the Order Form.
“Order Form” means the ordering document that specifies the Productslicensed or purchased by Customer, and shall set forth information, including but not limited to, the Software, Hardware, Service/s type, quantity, description, duration, price, payment terms (if different than those set forth in these General Terms) and any other special or supplemental terms applicable to the specific Product.
“Products” means the Subscription Service, Licensed Software, Hardware Devices and the provision of Maintenance and Support Services, Consulting Services, Marketing Servicesor any other services which may be provided or resold by WorkWave and specified in the applicable Order Form.
“Software Products” means the software applications made available to Customer by WorkWave either (1) as a service via the internet to specified webpages for Customer use combined with other web based services and solutions provided or resoldby WorkWave(the “Subscription Service”); or (2) on a Licensed Software basis whereby the computer software programs in executable object code form, either shipped to Customer or made available via electronic download for Customer installation and operation on computers located on the premises of, or under the control of, Customer. The Software Products shall include any revisions, releases, updates and upgradesgenerally made available by WorkWave to its customers. The applicable Order Form shall specify whether the Software Products are being made available as a Subscription Service or on a Licensed Software basis.
“Subscription Term“ means the period identified in the Order Form during which Customer is authorized to use or access the Service or the Licensed Software pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 13.
“Third Party Products” means products or services that are provided by WorkWave to Customer or accessed or used by Customer via the WorkWave Products and which are obtained from or provided by a third party (“Third Party Product Provider”). Third Party Products including Hardware Devices and supplemental third party software products when purchased or licensed by Customer are identified in the Order Form.
“Usage Basis”means the measure or identifier used to determine and track quantity, access, licensing rights and payment obligations incurred in connection with the use of the Products. The Usage Basis may vary by the Product and may include, but is not limited to, usage limited by number of Concurrent Users, unique Office Locations, Office Branches, Technicians, unique Users, unique Hardware Devices or other unique identifier as described in the applicable Order Form. If the Usage Basis designates a per User basis, it shall any individual person employed by Customer who possesses a valid, unique identification number (“User ID”), username and password (“Password”) with which to access the Products. Unless another Usage Basis is specified in the applicable Order Form, Customer is required to obtain a user license for each User accessing the WorkWave Subscription Service.The User ID and password that WorkWave assigns to each User shall only be used by one individual named User at any time and shall not be shared or used by other Customer personnel. Customer usage is limited to the Usage Basis specified in the Order Form. The Usage Basis may be increased at any time, subject to the payment of additional fees per each additional user as set forth in the Order Form. If Customer uses in excess of the Usage Basis specified in the Order Form, the additional Usage Basis shall become the new minimum Usage Basis for the remainder of the Subscription Term and Customer shall pay all fees associated with the increased minimum Usage Basis.
“Work Product” means any works (copyrightable or not, patentable or not), products, discoveries, developments, designs, work product, deliverables, improvements, inventions, processes, techniques, modifications and know-how made, conceived, reduced to practice or learned by WorkWave (either alone or jointly with Customer or others) that result from Consulting or Marketing Services performed by WorkWave, or its designee, and provided to Customer hereunder.
2. PROVISION OF SOFTWARE PRODUCTS.
2.1 Software Products available as a Subscription Service. If the Software Products are made available to Customer as a Subscription Service as specified in the Order Form, then subject to the terms and conditions of this Agreement, WorkWave grants to Customer a limited non-exclusive, non-transferable, non-sublicensable license to access and use the applicable Subscription Service during the Subscription Term solely for Customers own internal business. Customers access to the Subscription Service shall be limited by the quantity and type of Usage Basis set forth in the Order Form.
2.1.1 Service Availability. The Subscription Service may be interrupted from time to time for both scheduled and emergency update and maintenance service. Whenever possible, WorkWave will notify Customer in advance via email of the time, date and expected length of time when the Subscription Service will be unavailable. It is anticipated that the Subscription Service will be brought down once a week for a period of up to two (2) hours, for regular maintenance. Whenever possible, in the event that the Subscription Service becomes unavailable for an extended period of time due to technical difficulties, WorkWave will notify Customer via email of the status and expected time of resolution.
2.1.2 Back up Policy and Fees. WorkWave’s Customer Data back up policy and associated fees are available upon request.
2.1.3 Customer Use of the Subscription Service. In order to access the Subscription Service, Customer, at its sole expense, shall be responsible for providing its users computer equipment, telecommunications, data connections and other equipment necessary to access the internet. Customer shall (i) be responsible for all activities that occur under Customer’s user accounts; (ii) identify two Authorized Users for the coordination of support; (iii) prevent unauthorized access to, or use of, the Subscription Service, and shall notify WorkWave of any unauthorized use and (iv) shall comply with all applicable local, state and federal laws in using the Subscription Service. Customer agrees that it shall not (i) interfere, or attempt to interfere, with the Subscription Service in anyway; (ii) engage in spamming, spoofing or any fraudulent, illegal or unauthorized use of the Subscription Service; (iii) knowingly or negligently introduce into or transmit through the Subscription Service any virus, worm, trap door, or any other type of limiting routine, instruction or design or fail to take reasonable steps to prevent the foregoing; (iv) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the Subscription Service; (v) modify, frame, link to the Subscription Service except as may be permitted in the Documentation; or (v) engage in or allow any action involving the Subscription Service that is inconsistent with the Agreement.
2.1.4 Additional Terms Applicable to the Executive Dashboard Subscription Program. In order for Customer to access and receive the benefits of the Executive Dashboard Subscription product offering Customer must agree to the inclusion of Customer Data within WorkWave’s benchmark reports (“Benchmark Reports”) provided as part of the Executive Dashboard Subscription Program. All data collected from all customers subscribing to the Executive Dashboard Subscription program shall be aggregated and anonymized (“Benchmark Data”) so that no one customer’s data is individually linked to said customer. If Customer at any time elects to opt-out of the Executive Dashboard Subscription Program, Customer right to access the Benchmark Reports and Benchmark Data shall immediately cease. If after opting out, Customer later elects to participate in the Program, Customer may be required to remain a subscription term for a minimum period of one year. Customer acknowledges and agrees that the Benchmark Data and Benchmark Reports (in whole or in part) may not be sold, shared, communicated or disseminated in any form, nor access granted, to any third party or to any subsidiary, associated or holding company (whether direct or indirect) of the Customer. The Customer agrees that in the event of any prohibited usage or access by others as detailed above, that it will remit to WorkWave in full the license fees for such usage at the WorkWave’s then current rates.
2.2 Licensed Software. If the Software Products are made available to Customer on a Licensed Software basis as specified in the Order Form, then subject to the terms and conditions of the Agreement, WorkWave grants to Customer a non-exclusive, non-transferable, non-sublicensable license to: (a) execute and use the Licensed Software, in object-code format, solely for Customer's own internal business use in accordance with the Documentation, and (b) and make one (1) copy of the Licensed Software for archival or backup purposes. For Licensed Software which requires an annual license activation or license activation for new, replacement or additional users, Customer’s receipt of such license activation is contingent on Customer remaining current in Software Maintenance and Technical Support subscriptions and payments. All copies of the Licensed Software are subject to the provisions of this Agreement and all titles, trademarks, copyrights and restricted rights notices shall be reproduced in such copies. The Licensed Software license grant may be perpetual or for a limited Subscription Term as stated in the applicable Order Form.
2.2.1 Software Audit and License De-Activation. For Licensed Software products which are licensed on limited Subscription Term Customer expressly grants to WorkWave the right to remotely access Customer’s computer systems for the purpose of (a) conducting periodic limited audits to ensure usage of certain Products do not exceed the Usage Basis purchased by Customer; and (b) de-activating the Products in the event of Customer’s failure to make payment when such payments are due. Customer shall provide all information and access required for WorkWave to conduct the actions set forth in this Section 2.2.1 no later than five (5) days from the Effective Data and provides WorkWave updated information from time to time as needed to allow WorkWave continued access.
2.2.2 Licensed Software Restrictions. In addition to restrictions which may be set forth in the applicable Order Form, Customer shall not, and shall ensure that its employees , agents or anyone Customer provides use of or access to the Licensed Software do not: (1) attempt to decrypt, reverse engineer, disassemble, decompile, or otherwise attempt to discern, discover, copy, or disclose the source code, algorithms, processes, or ideas supporting the Licensed Software; (2) disclose the Licensed Software of Documentation related thereto to any third party, nor allow any third party to access, observe, analyze or view the operation of the Licensed Software except as may be permitted per the Documentation; (3) access or utilize or allow anyone else to access or utilize the Licensed Software remotely except as may be permitted per the Documentation; (4) translate, or create any derivative works of the Licensed Software; (6) remove or alter any WorkWave trademark, logo, copyright or other proprietary notice, legend, symbol from the Licensed Software, or (7) use the Products in any way not expressly provided for in the Agreement or the applicable Order Form.
3. Reservation of Rights; Restrictions for all Products. Except for the limited rights expressly granted to Customer hereunder, WorkWave reserves all rights, title and interest in and to the Products, Work Product, Benchmark Reports and Benchmark Data including all related intellectual property rights inherent therein (“WorkWave IP”). Customer acknowledges and agrees that (i) WorkWave is the exclusive owner (or authorized licensee) of all right, title and interest in and to the WorkWave IP, including, but not limited to, US and international patent, copyright, trademark, trade secret, and trade dress rights and any other intellectual property rights, and (ii) WorkWave owns and hereby retains all right, title, and interest in and to any and all improvements, modifications releases, updates, upgrades and derivative works of such WorkWave IP. Customer shall not copy, license, lease, rent, distribute, sell, make available, assign, sublicense or use the WorkWave IP in a timesharing or service bureau arrangement, or otherwise commercially exploit the WorkWave IP or make the WorkWave IP available to a third party. Customer agrees that it will not, prepare a derivative or compilation work of the WorkWave IP, or develop a competing product based on the WorkWave IP. The Products may incorporate or be licensed in conjunction with third party products. The licenses granted herein do not include the right to use the third party products separate and apart from the Products. Customer’s use of the third party products shall be limited to that use required for use of the Products as set forth in the Documentation. No individual, organization, person or other entity that is a direct competitor of WorkWave may access the Products, except with WorkWave’s prior written consent. In addition, no individual, organization, person or other entity may access the Products for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. WorkWave shall have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback or recommendations provided by Customer or any other party relating to the WorkWave IP.
4.1 Confidential Information. “Confidential Information” includes the Products, Work Products, Benchmark Reports and Benchmark Data (including methods or concepts utilized therein), WorkWave trade secrets and any information disclosed by either party to the other and marked or identified as proprietary or confidential, including but not limited to any business or technical information, software, product plans, designs, costs, product prices (including the pricing and the terms of this Agreement), financial information, marketing plans, business opportunities, personnel, research, development or know-how and Customer Data. If the “Confidential Information is disclosed orally, then it must be reduced to writing by the disclosing party within thirty (30) days of such disclosure and notified to the receiving party. The receiving party is liable for all misuse by employees, consultants or other third parties, of the disclosing party’s Confidential Information or for the use of the disclosing party’s Confidential Information for any purpose not expressly set forth in this Agreement.
4.2 Exclusions. Confidential Information does not include that which (a) is legally in the receiving party’s possession at the time of disclosure without it (or the providing third party) having breached an obligation of confidentiality; (b) is or becomes part of the public knowledge or literature other than as a result of action or inaction of the receiving party (c) is approved for release by written authorization of the disclosing party or (d) is documented to have been independently developed by the receiving party without access to the Confidential Information.
4.3 Use and Disclosure Restrictions. The receiving party shall not disclose or use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement,except with the disclosing party's prior written permission. With regard to Benchmark Reports and Benchmark Data, Customer agrees it shall not copy, reproduce, print or store in any manner (electronic or otherwise), extract or transmit in any form or use the Benchmark Reports or Benchmark Data in any way (in whole or in part) except as permitted pursuant to this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the receiving party is compelled by law to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure and reasonable assistance (at disclosing party's cost) if the disclosing party wishes to contest the disclosure.
4.4 Remedies. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of the confidentiality protections hereunder, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
5. Hardware Devices. Customer may elect to purchase certain Hardware Devices from WorkWave for use in connection with the Hardware Devices. Hardware Devices are delivered EXW WorkWave or its Supplier’s shipping point, as applicable (INCOTERMS 2000). All shipping charges from shipping point to Customer are paid by Customer and, if paid by WorkWave, shall be invoiced and paid by Customer. Transfer of title and risk or loss occur EXW WorkWave shipping point.
6. Customer Data. Except as specified in this Agreement or an applicable Order Form, WorkWave acknowledges, as between the parties, Customer shall own all right, interest and title in and to its Customer Data. Customer grants to WorkWave a limited, non-exclusive license to copy, store, record, transmit, display, view, print or otherwise use Customer Data to the extent necessary to provide the Products to Customer. WorkWave may access Customer’s accounts, including Customer Data, to respond to service or technical problems, confirm or enforce compliance with the terms of this Agreement, provide the benefit of the Products licensed or sold pursuant to this Agreement, or otherwise at Customer’s direction or request. Notwithstanding any other provision in this Agreement, WorkWave may provide certain user registration and statistical information such as user traffic or usage patterns in aggregate form to third parties, provided that such information does not individually identify Customer.
7. Third Party Product Providers
7.1. Acquisition of Third Party Products. WorkWave or third parties may make available to the Customer third-party products or services, including but not limited to software applicationsavailable on a subscription or Licensed Software basis, materials, hardware, warranty, maintenance, technical support and other consulting or other type of services. Any acquisitionby the Customer of any such Third Party Products, and any exchange of data between the Customer and any Third Party Product Provider, is subject solely to the terms of the Agreement between the Customer and the applicable Third Party Product Provider. Customer acknowledges that integration and use of Third Party Products is contingent on Customer purchasing or subscribing to the corresponding WorkWave Products licenses as well as remaining current in Software Maintenance and Technical Support subscriptions and payments. Unless specifically stated to the contrary in the Order Form WorkWave does not warrant, service or support Third Party Products. Customer acknowledges that with regard to Third Party Products, WorkWave is acting solely as a third party distributor or reseller of the Third Party Products. Customer agrees to look solely to the Third Party Providerfor warranty, repair or service claims related to the Third Party Products. WorkWave assigns to Customer any warranty delivered to WorkWave by a Third Party Provider to the extent the assignment is permitted by the terms thereof. WorkWave makes no representation, covenant or warranty with respect to the extent or enforceability of the Third Party Provider warranty. Customer acknowledges and agrees that its sole and exclusive remedy in connection with any defects in the Third Party Products including manufacture or design, shall be against the Third Party Provider of the Third Party Products and WorkWave shall have no liability to Customer in any event for any loss, damage, injury, or expense of any kind or nature related directly or indirectly to any Third Party Product provided hereunder. Customer agrees to indemnify and hold harmless WorkWave from any and all claims relating to breach of Third Party Productswarranties, service level or any other obligations in connection with the Third Party Products.
7.2. Integration; Use of Customer Data by Third Party Products. If the Customer installs or enables Third Party Products for use with the Products, the Customer acknowledges it has granted consent to WorkWave to allow Third Party Product Providers to access Customer Data as required for the interoperation of such Third Party Products with the Products. WorkWave shall not be responsible for any disclosure, modification or deletion of Customer Data resulting from any such access by Third Party Product Providers.Certain WorkWaveProducts may contain features designed to interoperate with Third Party Products (e.g., Google, GPS providers). To access such features, the Customer may be required to obtain access to such Third Party Product Providers. If the Third Party Product Provider ceases to make the Third Party Products available for interoperation with the corresponding Productfeatures on reasonable terms, WorkWave may cease providing such Product features without entitling the Customer to any refund, credit, or other compensation.
8. Marketing Services. From time to time, WorkWave may provide optional marketing services which may include, but are not limited to, website development and hosting, lead generation services, search engine optimization and social media content creation as listed and described in the Order Form.Customer acknowledges that nothing in this Agreement shall restrict or limit WorkWave from performing similar services for any third party.
8.1 Website Development and Hosting Services. Customer may purchase Website Development and Hosting Services (“Website Services”). In connection with Website Services, Customer shall provide to WorkWave such information and content as Customer desires to include in the Customer website (“Customer Content”). Customer hereby grants to WorkWave a fully paid, royalty-free, non-exclusive license to use Customer Content in connection with the provision of Website Services to Customer. Upon WorkWave’s completion of the initial Website Services, WorkWave shall make the website available to Customer for review and acceptance. The Website Services and the resulting website shall be deemed to be accepted unless Customer notifies within ten (10) days of the website availability that the website does not confirm to the guidelines set forth in the Order Form. WorkWave shall use reasonable commercial efforts to correct any non-conformance in the Website Services, provided however, if WorkWave cannot, or finds it commercially unreasonable to correct such non-conformance, then WorkWave may terminate the Website Services and refund to Customer a pro-rated portion of the prepaid Website Services Fee, if any. In connecting with the Website Services, WorkWave may provide template policies for security, privacy and legal notices to Customer, however, such notices are provided as samples only and Customer is responsible for providing notices appropriate for its use and jurisdiction and applicable laws.
8.1.1 In connection with the Website Services, WorkWave will provide or employ pre-existing templates, standard layouts, designs, forms, content libraries, databases, styles guides, toolbars, software programming and code, toolbars and data, documents, software programming or modifications, methodologies, concepts, ideas and know how in connection with the development and provision of the Website Services which is owned or licensed by WorkWave (“WorkWave Content”). WorkWave grants to Customer, for the term of this Agreement, a non-exclusive, limited license to use WorkWave Content in connection with the use of the Customer website developed as result of the Website Services. In connection with the Website Services, WorkWave may develop new templates, layouts, forms, libraries, software code or other material directly in connection with the development of Customer’s website which may be considered a “Work for hire” and shall be owned by Customer. To be considered a Work for Hire owned by Customer, in addition to the foregoing, it must be (i) unique to Customer’s business and not generally useful with WorkWave’s other clients; or (ii) not a derivative or modification of WorkWave Content.
8.1.2 Customer warrants and represents that it (i) shall use the Website Services solely for its own business or organizational purposes subject to the restrictions set forth in this Agreement; (ii) it shall not misrepresent the purpose, content, use or any aspect of the Customer Website to WorkWave. During the term of this Agreement, Customer further represents and warrants that it shall not: (i) use the Website Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) use the Website Services to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights; (iii) upload to the Website Services or use to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of any other WorkWave websites or the data contained therein; (v) use the Website Services for or in connection with any activity, good, product or service which is illegal in the territory or jurisdiction in which it is accessible or available; (vi) attempt to gain unauthorized access to WorkWave Services or its related systems or network or other WorkWave developed Websites.
8.2 Search Engine Optimization Services. In connection with or independent of the Website Development and Hosting Services set forth in 7.1 , Customer may elect to purchase Search Engine Optimization Services (“SEO Services”) for the term specified in the Order From. In connection with WorkWave’s provision of SEO Services Customer hereby acknowledges that (i) WorkWave has no control of the policies of search engines with respect to the exclusion or inclusion in directories or search result; (ii) due to the competitiveness of some keyword/phrases, ongoing changes in search engine ranking algorithms and other factors, WorkWave does not guarantee Company’s order of placement in search results or directories; (iii) some search engine and directories may take as long as, if not longer, than two to four months, after submission to list your site; (iv) search engines will drop listings, or listings may be dropped and reappear, for no apparent or predicable reason; (v) WorkWave is not responsible for a change in SEO results due to changes made to Customer’s website by Customer or other third parties; (vi) Customer’s failure to adopt changes to its website structure and content recommended by WorkWave may impede the effectiveness of the SEO Services.
8.3 Lead Generation Services. In connection with or independent of Website Development and Hosting Services set forth in 7.1, Customer may elect to purchase Lead Generation Services (“Lead Services”) for the term specified in the Order Form. In connection with its Lead Generation Services WorkWave may collect performance statistics and information relative to the disposition of the Lead Information by Customer. In connection with its purchase of the Lead Generation Services, Customer hereby expressly authorizes WorkWave to collect, retain and use, in any way WorkWave requires, Lead Generation Service performance data from Customer’s Software Products or Third Party Products purchased or licensed by Customer.
8.4 Customer’s use of WorkWave provided Leads. WorkWave does not represent Customer or any other party in the dissemination of Leads or any resulting transaction. WorkWave has no responsibility for the quality, veracity, suitability, or lawfulness of the leads provided via the Lead Generation Service or the ability of the parties submitting the leads to complete a sale or purchase of the products or services Customer makes available and WorkWave does not confirm each consumer’s identity or the veracity of the lead. Customer is solely responsible for all terms of any transaction initiated through the use of the Lead Generation Service. Customer agrees to comply with all applicable laws and regulations concerning the handling and use of consumer information provided with the lead and Customer shall be solely liable for any misuse or use of consumer information in violation of applicable law. Customer acknowledges that WorkWave shall not be liable for any damages, losses or liabilities that Customer incurs as a result of or in connection with any transaction arising from the provision of a lead.
8.5 Consulting Services. From time to time, Customer may purchase Consulting Services. Consulting Services fees shall be set forth in the Order Form. Consulting Services may be provided remotely or at Customer’s site. If Consulting Services are performed at Customer’s site, in addition to the payment of Consulting Services fees, Customer shall reimburse WorkWave for all reasonable travel and living expenses incurred in connection with the provision of the Services. WorkWave shall retain all ownership rights to any and all Work Product excluding, any pre-existing technology or materials supplied by Customer for incorporation into such Work Product. WorkWave grants Customer a non-exclusive, non-transferable, non-assignable license to use any Work Product, solely to the extent necessary to permit Customer to use the Work Product in connection with the Products for the term of this Agreement. Customer acknowledges that nothing in this Agreement shall restrict or limit WorkWave from performing similar services for any third party.
9. Software Maintenance; Technical Support
9.1 Software Maintenance and Updates. For Software Products that include maintenance, or for which Customer purchases Software Maintenance, WorkWave will provide Customer with periodic updates and upgrades to the WorkWave Subscription Solution when such are made commercially available by WorkWave to its other customers, at the fees set forth in the applicable Order Form.
9.2 Technical Support. For Software Products that include Technical Support or for which Customer Technical Support, WorkWave will provide Customer with a context sensitive online help system. For issues that cannot be resolved via the on-line help system, telephone/email is made available during WorkWave’s business hours. A predetermined number of no-charge hours for telephone/email support are provided with each Software Products license (based on number of Users) as set forth in the applicable Order From. Additional support hours may be purchased at WorkWave’s then current pricing, or as otherwise set forth in the Order Form.
10.1 Subscription Services. Subject to the other provisions of this Section 9, WorkWave warrants that the Subscription Service will perform substantially in accordance with the Documentation under normal use and circumstances. WorkWave’s exclusive liability and Customer’s sole and exclusive remedy for a breach of this warranty shall be, at WorkWave’s option in each case, (a) to use commercially reasonable efforts to correct any substantial non-conformity, or (b) terminate this Agreement effective immediately upon written notice to Customer and refund to Customer the unused prepaid portion of Subscription Service fee.
10.2 WorkWave Licensed Software. Subject to the other provisions of this Section 9, WorkWave warrants that, for a period of 90 days following the delivery of the Licensed Software, the Licensed Software will function substantially in the manner described in the Documentation when the Licensed Software is properly installed, configured and operating on the operating systems specified in the Documentation. WorkWave’s sole and exclusive obligation and Customer’s sole and exclusive remedy for a breach of the foregoing warranty, shall be, at WorkWave’s option in each case, (a) to use commercially reasonable efforts to correct any substantial non-conformity or (b) to return the license fee paid by Customer for the applicable copy of the Licensed Software and to terminate the license granted for such copy.
10.3 Marketing and Consulting Services. All Marketing and Consulting Services are made available and provided “as is” and “as available”, without condition, endorsement, guarantee, representation or warranty of any kind by WorkWave.
10.4 Limitations on Warranties. WorkWave’s warranties set forth in this Section 9 shall not apply to (a) any claims which result from acts or omissions caused by persons other than WorkWave; (b) any claims which result from Third party Products; (c) any claims which are not reported to WorkWave in writing within the warranty period;(d) any version of the Licensed Software which has been superseded by a more recent version available from WorkWave; (e) any malfunctions attributable to extrinsic causes, such as natural disasters including fire, smoke, water, earthquakes or lightning, electrical power fluctuations or failures, or other abuse, misuse, accident, alteration or neglect (f) any Hardware Products.
10.5 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WORKWAVE, ITS LICENSORS AND SUPPLIERS MAKE NO WARRANTIES OF ANY KIND WHATSOEVER WHETHER EXPRESS, IMPLIED, ARISING BY LAW, CUSTOM, OR PRIOR ORAL OR WRITTEN STATEMENTS BY WORKWAVE RELATING TO THE PRODUCTS. WORKWAVE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (WHETHER OR NOT WORKWAVE KNOWS OR HAS REASON TO KNOW OF SUCH PURPOSE). DUE TO THE COMPLEXITY OF THE INTERNET, THE VARIABILITY OF HARDWARE AND SOFTWARE CAPABILITIES AND THE PROVISION OF THE PRODUCTS TO CUSTOMER BY VARIOUS THIRD PARTY PROVIDERS, WORKWAVE DOES NOT GUARANTEE THAT CUSTOMER’S ACCESS TO OR USE OF THE PRODUCTS WILL AT ALL TIMES BE UNINTERRUPTED OR ERROR FREE. BENCHMARK DATA AND BENCHMARK REPORTS ARE PROVIDED “AS IS” AND WORKWAVE DISCLAIMS ANY WARRANTY OR LIABILITY WITH REGARD TO THE ACCURACY, CURRENTNESS OR COMPLETENESS OF SUCH DATA AND REPORTS. CUSTOMER ASSUMES ALL RISKS OF ITS OR ITS USERS PURCHASE AND SALES TRANSACTIONS WHEN USING THE SERVICE.
11. Customer Warranties and Indemnity. Customer represents and warrants that (i) it has the legal power and authority to enter into this Agreement; (ii) it owns or otherwise has sufficient rights in the Customer Data and Customer Content to grant to WorkWave the rights to use the Customer Data and Customer Content granted herein; (iii) it has not falsely identified itself nor provided any false information to gain access to or use of the Products; and (c) all billing and contact information provided by Customer is true and correct. Customer shall indemnify, defend and hold harmless WorkWave, its affiliates, and each of their officers, directors, employees, agents and shareholders from and against any and all claims, liabilities, penalties, fines, judgments, settlements, costs demands and expenses, including without limitation, attorneys’ fees and legal expenses, incurred by, borne by or asserted against Customer (i) made by any third party arising out of or in any way relating to WorkWave’s use of Customer Data, or Customer’s use of the Products, Third Party Products, Benchmark Data and Benchmark Reports in violation of this Agreement, or (ii) arising out of or relating to Customer’s breach of any representation, warranty or provision of this Agreement.
12. Limitation of Liability. IN NO EVENT SHALL WORKWAVE, ITS AGENTS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF CUSTOMER DATA, COSTS RELATED TO DELAYED, INTERRUPTIONS NON-DELIVERY, DEFECTS IN THE TRANSMISSION OF DATA, COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, OR OTHER DAMAGES OF ANY KIND, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY ARISING OUT OF THE USE, OPERATION, OR ACCESS TO THE PRODUCTSEVEN IF WORKWAVE HAS BEEN ADVISED OF THE POSSIBILITY OR PRIOR OCCURRENCE OF SUCH DAMAGES. WORKWAVE’S MAXIMUM CUMULATIVE LIABILITY FOR DIRECT, ACTUAL AND PROVABLE DAMAGES UNDER THE AGREEMENT (REGARDLESS OF THE FORM OF ACTION) SHALL NOT EXCEED THE AMOUNT OF FEES PAID UNDER THIS AGREEMENT DURING THE PRIOR THREE (3) MONTHS PRECEDING THE CLAIM.
13. Payment Terms. Customer agrees to pay the fees related to the Products purchased or licensed, as well as Maintenance, Support, Consulting Services or any other fees applicable as specified in the applicable Order Form. If not specified in the applicable Order Form, payments for recurring fees will be invoiced, in advance, and fees for all other Products purchased or licensed shall be due in full at the time of purchase. Except as otherwise specified herein or in an Order Form, (a) fees are based on Products purchased and not actual usage or any Product, (b) payment obligations are non-cancelable and fees paid are non-refundable, upon expiration regardless of whether Customer has prepaid for any portion of the Services and (c) the Usage Basis purchased cannot be decreased during the relevant Agreement term. Automatic credit card processing is required for monthly payments, unless other terms are agreed upon. All fees are to be paid in U.S. dollars. All fees are exclusive of taxes, including but not limited to sales, use, transfer, privilege, excise, VAT and all other taxes and duties. Amounts which are not received by the due date shall be subject to a late fee of one and one-half percent (1.5%) or the highest amount allowed under applicable law, whichever is lower, compounded monthly, commencing from the payment due date. Customer shall bear all costs incurred by WorkWave as a result of late payment, including additional administrative and reminder costs, lawyer’s fees and court costs. If Customer fails to make any payment when due, WorkWave may, without prejudice to any other remedies it may have, suspend delivery or access of any Product upon notice to Customer until payment has been made in full.
14. Term; Termination.
14.1 Term; Renewal. As specified in the applicable Order Form, some Products are provided for a specified term. Unless otherwise set forth in the Order Form, the term for the applicable Product commences on the Effective Date specified in the Order Form and shall remain in effect for the period of time set forth in the applicable Order Form (“Initial Term”). Unless otherwise specified in the relevant Order Form WorkWave will pro-rate and co-term the Term for any additional Products or increased Usage Basis purchased after the initial order with the expiration of the Term in effect immediately prior to the time additional Users or Products are added. At the completion of the Initial Term, the Term shall renew automatically for successive twelve (12) month periods (each period a “Renewal Term”) unless either party gives written notice to the other party of its intent not to renew at least forty-five (45) days prior to the end of the Initial Term or then current Renewal Term. The Initial Term and any Renewal Term/s shall collectively be referred to as “Term” in the Agreement. Pricing for any Renewal Term is subject to change, provided that WorkWave provides Customer with written notice of such price change at least sixty (60) days prior to the beginning of the Renewal Term for which the pricing has changed.
14.2 Termination. WorkWave may suspend the use of the Products and/or terminate the Agreement upon written notice if: (a) Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (b) the Customer breaches any of its obligations under this Agreement or any other agreement to procure Products from WorkWave, including its obligation to pay amounts due hereunder. Upon any termination or expiration of this Agreement, Customer shall immediately pay all amounts due and payable to WorkWave through the effective date of termination, and in the case of Customer’s uncured breach, or in the event of Customer’s early termination prior to the end of the Term without cause, Customer shall be liable for early termination fees as set forth in Section 13.3 below.
14.3 Early Termination Fee. As specified in the applicable Order Form, some Products are provided for a specified term. Customer understands and acknowledges that in the event of an early termination without cause by Customer prior to the end of the Term specified in the relevant Order form, early termination fees shall apply. Early termination fees are in addition to any other fees owed by Customer for any other Products. Early termination fees shall be computed based on the monthly fees due multiplied by the number of months remaining in the Initial Term, or in the then current Renewal Term, as applicable. Said early termination fees will be invoiced to Customer in one lump sum within fifteen (15) days of Customer’s termination notice, and will be due net thirty (30) days from the date of invoice. Early termination fees shall be deemed to be liquidated damages and not a penalty. Early termination fees shall not apply if a Customer’s termination is due to WorkWave’s uncured breach of its obligations under this Agreement.
15. Miscellaneous Terms
15.1 Assignment. Customer may not assign this Agreement, by operation of law or otherwise, without the prior express written consent of WorkWave. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Customer and WorkWave.
15.2 Governing Law; Jurisdiction. The Agreement shall be construed and interpreted in accordance with the laws of the State of New Jersey, without regard to its conflict of laws principles. Customer and WorkWave agree that the sole venue and jurisdiction for disputes arising from the Agreement shall be the appropriate state or federal court located in Monmouth County, State of New Jersey. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. The prevailing party in any action to enforce the Agreement shall be entitled to recover its reasonable attorney’s fees and costs in connection with such action.
15.3 Waiver; Severability. Any waiver of the provisions of the Agreement or of a party’s rights or remedies under the Agreement must be in writing to be effective. Failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
15.4 Compliance with laws. Customer shall comply with all applicable laws and regulations including federal, state and local, laws, orders and regulations, as well as all export control laws and regulations that may be imposed by the U.S. Government in its use of the Products.
15.5 Force majeure. If WorkWave is prevented or delayed in the performance of any of its obligations set forth in the Agreement by any event beyond its reasonable control (including, strikes, accidents, fires, explosions, earthquakes, the inability to procure materials from the usual sources of supply, or requisition or order of any governmental authority relating to the use or destination of the Products) WorkWave shall be excused from the performance or punctual performance as the case may be for so long as such cause of prevention or delay continues.
15.6 Notices Specific to the Parties. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile,(ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and, if to WorkWave , to the attention of the Vice President of Finance, and, if to Customer, to the attention of the signatory of this Agreement, or to such other address or individual as the parties may specify from time to time by written notice to the other party.
15.7 Notices to General Customer Base. For notices that are directed to Customer as part of WorkWave’s general customer base, WorkWave may give notice by means of a general notice on the Subscription Service or other Product, by electronic mail to Customer’s e-mail address on record in WorkWave’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address listed the Order From. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
15.8 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 and 10 through 14.
15.9 Entire Agreement. These General Terms and related Order Form (and any addenda or amendments hereto): (i) represents the entire agreement between the parties relating to the subject matter of the Agreement, (ii) supersedes all prior agreements, representations and warranties relating to the subject matter of the Agreement, and (iii) may be amended, canceled or rescinded by WorkWave upon notice to Customer. In the event of any conflict between the terms of the Order Form, the General Terms and any signed Supplemental Attachments, the following order of precedence shall apply: Order Form, signed Supplemental Attachments, General Terms.
Confidential WorkWave, LLC