TERMS AND CONDITIONS

These Terms and Conditions set forth the terms and conditions under which Workify will provide access to certain proprietary software and services to Customer. 

The Agreement sets forth the terms and conditions under which Customer may Use (as defined herein) Workify’s software indicated in the Agreement (“Software”).

1 LICENSE GRANT AND RIGHT OF USE  

Subject to all limitations and restrictions contained herein, Workify grants Customer a subscription, software as a service (SaaS), nonexclusive and nontransferable right to use the Software as hosted by Workify solely for the Use described in the Order.  In no event shall Customer disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined herein) or permit others to do so. 

Disassembling, decompiling, and reverse engineering include, without limitation:

(i) converting the Software from a machine-readable form into a human-readable form;

(ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof;

(iii) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behavior in response to a variety of inputs; or

(iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling. 

To the extent any such activity may be permitted pursuant to written agreement, the results thereof shall be deemed Confidential Information subject to the requirements of this Agreement.  Customer may use Workify’s Confidential Information solely in connection with the Software and pursuant to the terms of this Agreement.  Workify will provide access to reports and data generated by the Software and Customer data stored by the Software through the Software.

2 PAYMENT

Customer will be invoiced for the Subscription Services and/or Services as set forth in Customer Orders. Any applicable taxes will be included in the final invoice(s). Customer shall reimburse Workify and hold Workify harmless for all sales, use, VAT, excise, property or other taxes or levies which Workify is required to collect or remit to applicable tax authorities. Payment will be made using ACH, check or credit card. If paying by credit card, Customer will be required to pay a 3% convenience fee.

3 MAINTENANCE AND SUPPORT SERVICES

Workify shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications, and (ii) are replicated and diagnosed by Workify as defects in the Software (“Maintenance and Support Services”). 

Workify shall use commercially reasonable efforts to begin working on a resolution to Customer’s written notice of reported problems within fourteen (14) days, provided corrections shall be prioritized in Workify reasonable discretion.  A response is not a guaranty of a solution to the reported problem; however Workify will keep Customer apprised of the resolution closure.  In addition to the foregoing, Workify shall provide the Software in accordance with the Service Level Agreement attached hereto as Exhibit A. 

Additional features and functions are not included as part of the maintenance and support services. Workify shall not be obligated to provide Maintenance and Support Services for any software other than the generally available Software delivered to Customer pursuant to this Agreement (collectively the “Unsupported Code”).  Any Workify support services related to Unsupported Code shall be subject to execution of a mutually agreed upon agreement. 

Workify shall have the right to use third parties, including employees of Workify’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Section, all references to Workify or its employees shall be deemed to include such Subcontractors.

4 OWNERSHIP

By Use of the Software, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software or Workify materials provided to Customer.  Workify shall own all right, title, and interest in such Software and Workify materials, subject to any limitations associated with intellectual property rights of third parties.

Workify reserves all rights not specifically granted herein.  Notwithstanding this Agreement, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other Workify materials provided to Customer shall be owned by Workify, and Customer hereby agrees to assign any such rights to Workify.  Nothing in this Agreement shall preclude Workify from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Workify in the performance of services hereunder. 

Customer shall own all right, title and interest in and to the data provided by Customer through the Software.  Workify owns and shall continue to own all right, title and interest in and to all aggregate and statistical information, benchmarking, comparison, and other analytics or analyses created or developed by Workify from performance and usage data generated through Customer’s use of the Software (collectively, “Aggregate Data”).  Aggregate Data is de-identified so that Customer cannot be identified as the source within the Aggregate Data. 

5 CONFIDENTIALITY  

“Confidential Information” includes all information marked pursuant to this Section and disclosed by either party, before or after the Effective Date, and generally not publicly known, whether tangible or intangible and in whatever form or medium provided, as well as any information generated by a party that contains, reflects, or is derived from such information. 

All Customer information which Workify has access to is considered Customer Confidential Information,  In addition, all Confidential Information in tangible form shall be marked as “Confidential” or the like or, if intangible (e.g. orally disclosed), shall be designated as being confidential at the time of disclosure and shall be confirmed as such in writing within thirty (30) days of the initial disclosure.

Notwithstanding the foregoing, the following is deemed Workify Confidential Information with or without such marking or written confirmation:

(i) the Software and other related materials furnished by Workify; and

(ii) the terms and conditions of this Agreement.  Without granting any right or license, the obligations of the parties hereunder shall not apply to any material or information that:

(i) is or becomes a part of the public domain through no act or omission by the receiving party;

(ii) is independently developed by the other party without use of the disclosing party’s Confidential Information;

(iii) is rightfully obtained from a third party without any obligation of confidentiality; or

(iv) is already known by the receiving party without any obligation of confidentiality prior to obtaining the Confidential Information from the disclosing party. 

In addition, neither party shall be liable for disclosure of Confidential Information if made in response to a valid order of a court or authorized agency of government, provided that notice is promptly given to the disclosing party so that the disclosing party may seek a protective order and engage in other efforts to minimize the required disclosure. 

Neither party shall, in whole or in part, sell, lease, license, assign, transfer, or disclose the Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information except as expressly permitted in this Agreement.  Each party shall take every reasonable precaution, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure, and the unauthorized copying, reproduction or distribution of the Confidential Information. 

Each party agrees at all times to keep strictly confidential all Confidential Information belonging to the other party.  Each party agrees to restrict access to the other party’s Confidential Information only to those employees or Subcontractors who

(i) require access in the course of their assigned duties and responsibilities; and

(ii) have agreed in writing to be bound by provisions no less restrictive than those set forth in this Section. 

Each party acknowledges that any unauthorized disclosure or use of the Confidential Information would cause the other party imminent irreparable injury and that such party shall be entitled to, in addition to any other remedies available at law or in equity, temporary, preliminary, and permanent injunctive relief in the event the other party does not fulfill its obligations under this Section.

6 WARRANTY  

Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement.  The parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded. 

Customer acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Software or maintenance, or other services provided hereunder.

Except as otherwise stated in this agreement, the software is provided “as is” and Workify makes no warranties, express or implied, including express or implied warranties of merchantability, fitness for a particular purpose.

In connection with Customer’s use of the Software Workify requires explicit rights to use data provided by Customer and its employees and Customer represents and warrants that Customer has such rights. As such, Customer grants Workify the nonexclusive, perpetual, irrevocable right and license to use information provided by Customer in connection with the Software.  Customer further represents and warrants that in the event that Workify receives notice of a request to modify personally identifiable data, Customer will make such modification as requested.

7 LIMITATION OF LIABILITY

7.1. LIABILITY CAP

In no event shall workify be liable under any theory of liability, whether in an equitable, legal, or common law action arising hereunder for contract, strict liability, indemnity, tort (including negligence), or otherwise, for damages which, in the aggregate, exceed the amount of the fees paid by customer for the software or services which gave rise to such damages in the one (1) year prior to the claim and notwithstanding the failure of essential purpose of any remedy.

DISCLAIMER OF DAMAGES

In no event shall Workify be liable for any special, incidental, indirect, exemplary, punitive, or consequential damages of any kind and however caused including, but not limited to, business interruption or loss of profits, business opportunities, or goodwill even if notified of the possibility of such damage, and notwithstanding the failure of essential purpose of any remedy.

7.2. INDEPENDENT CONTRACTOR STATUS  

None of the provisions of this Agreement are intended to create, nor shall be deemed or construed to create, any relationship between Workify and Customer other than that of independent entities contracting with each other hereunder solely for the purpose of effecting the provisions of this Agreement.  Workify will act solely as an independent contractor.  Nothing contained herein will be construed to create the relationship of principal and agent, employer and employee, partners or joint ventures. 

7.3. TERM AND TERMINATION  

This Agreement and any license created hereunder may be terminated either (i) by Workify if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; or (ii) on thirty (30) days written notice to a party if the other party fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period.  Upon termination of this Agreement, Customer shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein. Workify will provide Customer with all Customer records contained in the Software within thirty (30) days of termination of this Agreement. The provisions set forth in Sections 2, 4, 5, 6, 8, 9 and 10 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.

7.4. MISCELLANEOUS

1. 1. Customer may not assign this Agreement or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Workify.  In the event of a sale of all or substantially all of Customer’s assets, this shall not be considered an assignment and the provisions of this section shall not apply in such instances and shall be permitted, provided such assignee agrees in writing to be bound by the terms hereof.
   2. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed.  All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing.  Unless otherwise specified, all notices to Workify shall be sent to the attention of the CEO.  Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
   3. Workify shall not be liable to Customer for any delay or failure of Workify to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Workify.  Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
   4. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto.  Any signed copy of this Agreement made by reliable means (e.g., photocopy or facsimile) shall be considered an original.  No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.  Each provision of this Agreement is a separately enforceable provision.  If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
   5. This agreement shall be governed and interpreted by the laws of the state of Texas without regard to the conflicts of law provisions of any state or jurisdiction. Any action arising out of, or related to, this agreement shall be brought in the state or federal courts located in Austin, Texas and each party hereby submits to the exclusive jurisdiction of such courts.

Exhibit A – SERVICE LEVEL AGREEMENT

This Service Level Agreement (“SLA”) between Workify, Inc. (“Workify”), and the user (“Customer”) of Workify’s services (“Services”) sets forth the service level terms and conditions.

1. Definitions.  The following are definitions of capitalized words used in this Agreement:

• • “Business Hours” means 8:00 a.m. to 6:00 p.m. (CST), Monday through Friday, and, notwithstanding the foregoing, does not include times during Service Maintenance.
  • “Level 1“ means Service availability without a Severity 1 Error.
  • “Service Maintenance” means Workify’s maintaining of the Service including software.  Service Maintenance includes, without limitation, database index rebuilding, hardware upgrades, software upgrades, and network upgrades, as applicable.

1. • “Severity 1 Error” means an error that causes complete unavailability of the Service.
2. Data Retention. 

Workify shall make a backup copy daily.  Data included on the daily backups are informational log files only.  Workify shall retain each such daily backup copy for at least seven (7) days.

1. Service Availability.
   • Service Availability – General.  Workify’s goal is to provide Service Availability twenty-four hours per day, seven (7) days per week (referred to as “24×7 Availability”) EXCEPT during times of Service Maintenance as set forth in Section 3.6 herein.  However, the parties recognize that 24×7 Availability is only a GOAL, and Workify cannot represent or guarantee that such goal can be achieved.  These response time goals apply only to public production servers (i.e. web servers, application servers, and database servers).
   • Service Availability Level Goals.  Workify shall use reasonable efforts to achieve the target Service Availability Goal of 99.5% during Business Hours.
   • Service Availability Reporting.  Upon request of Customer, Workify shall deliver a monthly Service Availability Report via e-mail to the Customer.  The Service Availability Reports shall specify the Service Availability per Level.
   • Response Time to Error.  Workify has internal notification tools for site problems.  Additionally, Customer may report problems with the site to Workify Level 1 Support.  Once notified of the Severity 1 Error by Customer, Workify will respond within thirty (30) business minutes.  Note that these guidelines specify the time to begin investigation of the problem, not the length of time within which such problem will be resolved. 
   • Workify Customer Issue Escalation.  If Customer feels a problem is not being properly addressed, Customer may request escalation to the Support Manager.
   • Service Maintenance.
     • The parties agree that Workify shall provide Service Maintenance which may cause errors including Severity 1 Errors. Workify shall use commercially reasonable efforts to limit Service Maintenance which causes Severity 1 Errors to eight (8) hours per month.  Workify shall notify named Customer contact by email prior to performing any Service Maintenance which Workify predicts will cause a Severity 1 Error outside of standard Service Maintenance Times.
     • The Service Availability goals exclude any time Customer requests site be taken down for scheduled updates. 
     • Workify shall attempt to schedule Service Maintenance during the times as specified in Table 1 – Service Maintenance Times.  However, the parties agree that it may be necessary for Workify to perform Service Maintenance during times other than those specified in Table 1, and Workify reserves the right to perform Service Maintenance during times other than those specified in Table 1.

Table 1 – Service Maintenance Times

4. Disclaimer of Actions Caused by and/or Under the Control of Third Parties.

Workify does not and cannot control the flow of data to or from Workify’s network and other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the internet (or portions thereof). Although Workify will use commercially reasonable efforts to take actions it deems appropriate to remedy and avoid such events, Workify cannot guarantee that such events will not occur. Accordingly, Workify disclaims any and all liability resulting from or related to such events.

5. Limitations.  Workify cannot assume responsibility and shall not be liable for any impacts on Service Availability due to (i) any requests for non-standard environment or Customer machine access; (ii) any downtime caused by Customer produced code; or (iii) any changes to the Service by Customer.

 Updated: May 6, 2021