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WorkTango Inc (“WorkTango”) provides a Software as a Service platform (“Platform”) more fully described on the website WorkTango.io (“Site”). The Service is provided on a subscription basis as further described in this Agreement, within the Order and on the Website under specific subscription plans offered by WorkTango from time to time. The Services are provided through the Site. This Agreement applies to anyone (“You”/”Customer”) who subscribes for or otherwise uses the Services.
THESE TERMS (WHICH TOGETHER WITH THE ORDER FORM ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) CONTAINS IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ IT CAREFULLY BEFORE USING THE SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Customer Content” means any content provided by Customer to WorkTango or through the Service, including without limitation any form of survey or sample survey questions that may by provided by Customer to WorkTango or otherwise through the Service;
“Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Service;
“Effective Date” means the effective date as stated in the Order Form or, if not so stated, the date of last signature or acceptance of that Order Form.
“Event” means any form of event ((whether virtual, physical, or otherwise and in any format and through any media) organized or controlled by Customer and as specified in the applicable Order Form.
“Fee” means the fees (as specified in the applicable Order Form) payable by Customer to WorkTango for the right to receive the Service;
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Order Form” means a written document executed or otherwise accepted by each Party under which Customer agrees to subscribe for the Services under these terms, which may specify the WorkTango Service, subscription period, Fees and any other additional commercial terms agreed by the parties;
“Policies” means such policies as may be published by WorkTango on the Site or through the Service from time to time in respect of the use of the Service;
“Respondent” means any individual whom Customer wishes to contact through the Service for participation as a respondent to questionnaires or similar;
“Respondent Data” means all electronic data or information submitted by Respondents to the Service;
“Service” means the subscription to the Platform as described in the applicable Order Form;
“Subscription Period” means the subscription period for the Service as specified in the applicable Order Form(s) executed by the parties;
“Term” has the meaning ascribed to that term in Section 10.1; and
“User” means an individual or entity who is authorized by Customer to use the Service as an administrator, and who has registered an account with the Service under Customer’s credentials.
“WorkTango Content” means any content made available by WorkTango from time to time through the Service, including without limitation template surveys and survey questions.
- GRANT OF LICENSE.
2.1 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, WorkTango shall make the Service available to Customer during the Subscription Period, and shall deliver the applicable functionality of the Services to the Respondents selected by Customer. Customer’s right to use the Service during the Subscription Period shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Order Form(s).
2.2 User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
2.3 Customer Affiliates. Customer Affiliates may use the Service subject to the terms of this Agreement. Customer shall cause each Customer Affiliate to comply with the terms and conditions of this Agreement to the full extent as if such Affiliate were a party hereto, and any act or omission relating to this Agreement by such Customer Affiliate shall be deemed an act or omission of Customer. In addition, each party may use one or more Affiliates to perform its obligations under this Agreement, provided that such use shall not affect such party’s obligations hereunder and any act or omission by such Affiliate relating to this Agreement shall be deemed an act or omission of such party.
- USE OF THE SERVICE.
3.1 WorkTango Responsibilities. WorkTango shall: (i) use commercially reasonable endeavours to maintain the security and integrity of the Service, the Customer Data and the Respondent Data; (ii) provide basic support to Customer’s Users, at no additional charge; and (iii) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond WorkTango’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving WorkTango employees), computer, telecommunications, Internet service WorkTango or hosting facility failures or delays involving hardware, software or power systems not within WorkTango’s possession or reasonable control, and denial of service attacks.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify WorkTango promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service. In particular, when using the Service, Customer and its Users shall not:
- Use the Service to send any communications (that is, Spam) to any Respondent or any other person unless Customer has obtained and maintained the appropriate consents required under applicable laws to send such communications. Spam can be in the form of bulk emails, one-to-one commercial communications such as email or as otherwise defined by applicable law.
- Provide any Customer Content or any other material (whether text, logos, images, graphics, content or otherwise) through the Service that wasn’t created by you, provided for you to use, to which you have the appropriate license for use or that would violate anyone’s rights.
- Use any misleading or incorrect names, addresses, email addresses, subject lines, or other information in or through the Service.
- Use an outside unsubscribe process when sending bulk content to an audience hosted in the Service.
- Provide any sensitive personal information through the Service, including without limitation any health information, government identifiers, passwords, security credentials, or similar upload, post, email, transmit or otherwise make available on the Website or through the Service or provide to us for use through the Service:
- any material that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful, or racially or ethnically objectionable, encourages criminal behavior, gives rise to civil liability, violates any law, or is otherwise objectionable,
- any materials where the use of those materials through the Service would infringe upon the intellectual property rights of a third party or to which you do not hold all necessary rights,
- any falsehoods or misrepresentations or create an impression that you know is incorrect, misleading, or deceptive, or any material that could damage or harm any person in any way;
- any unsolicited or unauthorized advertising, solicitations for business, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;
- any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or data or the Website or that of any User or visitor to the Website or that compromises any person’s privacy;
- (d) impersonate any person or entity or misrepresent Your affiliation with a person or entity;
- (e) interfere with or disrupt the Website or networks connected to the Website, or disobey any requirements, procedures, policies or regulations of networks connected to the Website or probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- (f) collect or store personal information about other users; or
- (g) resell the content of the Website, the use of the Website or access to the Website or the content of the Website.
- (h) attempt to identify any User that participated in a confidential survey as part of the Service
You agree to indemnify and hold us harmless against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing.
3.3 Conduct Guidelines. In using the Services Customer shall:
- provide accurate information when registering and keep such information up to date;
- comply at all times with the applicable Policies;
- treat the other users of the Services with whom Customer and its Users interact with respect and not engage in any conduct which is threatening, harassing or otherwise harmful to other users or third parties, or do anything that breaches the general User conduct guidelines in section 3.2 above below. We reserve the right to terminate your access to the Services and take appropriate legal action if you are in breach of these requirements or the restrictions in Section 4 below;
- not upload any Customer Content that is harmful, abusive, constitutes hate speech, or is harassing, discriminatory or otherwise objectionable and harmful to other Users and/or the public;
- act honestly and in good faith and in a manner that will not harm the goodwill or reputation of WorkTango; and
- comply with these terms and all applicable laws, rules, and regulations at all time during when using the Services and during any other dealings with WorkTango.
WorkTango Inc. reserves the right to terminate your access to and use of the Site and Service at any time for breach of the foregoing restrictions.
3.4 Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks. All communications to Respondents through the Platform shall comply with applicable laws. Customer shall further adhere to such additional communication policies as may be communicated or amended by WorkTango from time to time in order to comply with applicable laws or good industry standards.
3.5 Publicity. Neither party may issue press releases relating to this Agreement without the other party’s prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party’s standard guidelines.
- FEES AND PAYMENT.
- Subscription Fees. In consideration for the receipt of the Service, Customer shall pay WorkTango the Subscription Fees specified in the applicable Order Form. WorkTango reserves the right to amend the fees for any Renewal Term (as defined in section 10.1) on not less than 60 days’ advance notice in writing to Customer.
- Invoicing and Payment. Fees for the Service will be invoiced on a monthly basis unless otherwise specified in the applicable Order Form executed by the parties. Unless otherwise stated in an invoice, charges are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with WorkTango.
- Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at WorkTango’s discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
- Unless otherwise stated, WorkTango’s fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on WorkTango’s net income or property. If WorkTango has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides WorkTango with a valid tax exemption certificate authorized by the appropriate taxing authority.
- Audit Rights. WorkTango shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Customer’s compliance with this Agreement.
- Suspension of Service. If Customer’s account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, WorkTango reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
- PROPRIETARY RIGHTS AND PRIVACY.
- Reservation of Rights. Subject to the limited rights expressly granted hereunder, WorkTango reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
- Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service; (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.
- Customer Data. As between WorkTango and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under this Agreement. WorkTango shall not access Customer’s User accounts, including Customer Data, except to respond to service or technical problems or at Customer’s request or as necessary for the operation of the Service or billing. Customer hereby grants WorkTango a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to use and otherwise exploit the Customer Data as reasonably required to provide the Service. The foregoing license shall include the right for WorkTango to use and copy the Customer Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Service use and other Service and User parameters and characteristics (“Aggregated Statistics”). WorkTango shall own all Aggregated Statistics created from the Customer Data.
- Respondent Data. As between WorkTango, Respondents and Customer, it is agreed that WorkTango will use reasonable commercial endeavors to maintain the confidentiality of identifying Respondent Data from any other person, including without limitation the Customer unless it is expressly agreed with WorkTango and clearly communicated to Respondents that the Respondent Data will be made available directly to Customer (Such as through non-confidential surveys). The foregoing shall not preclude WorkTango from engaging service providers such as hosting providers to process Respondent Data on behalf of WorkTango. WorkTango will communicate reports generated from Respondent Data to Customer and such other aggregated or anonymized data as may be agreed pursuant to an Order Form. Customer may request that WorkTango transfer Respondent Data to other third party providers to Customer, but it shall be a condition of any such transfer that the transferee must agree to maintain the confidentiality of such Respondent Data on terms similar to those set out in this section.
- Suggestions. WorkTango shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Service.
- Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Form hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
- 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.
- 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 using less than reasonable care).
- Compelled Disclosure. 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 (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
- If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, 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 may be inadequate.
- WARRANTIES AND DISCLAIMERS.
- Each party warrants that it has the legal power to enter into this Agreement. WorkTango warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall perform materially in accordance with the descriptions set out in the Site; and (iii) the Service will not contain or transmit any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User). Customer represents and warrants that it will comply with all applicable laws in the use of the Service, including without limitation all applicable laws regarding privacy, personal information and commercial communications, and shall obtain all requisite consents from Respondents prior to using the Service to communicate with such Respondents.
- EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, WORKTANGO MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- MUTUAL INDEMNIFICATION.
- Indemnification by WorkTango. Subject to the terms and conditions of this Agreement, WorkTango shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by WorkTango and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by WorkTango, (i) Customer shall notify WorkTango promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give WorkTango sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with WorkTango in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without WorkTango’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.
- If (a) WorkTango becomes aware of an actual or potential IP Claim, or (b) Customer provides WorkTango with notice of an actual or potential IP Claim, WorkTango may (or in the case of an injunction against Customer, shall), at WorkTango’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to WorkTango.
- The obligations in Sections 8.1 and 8.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by WorkTango with other products, software or services not provided by WorkTango; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
- Indemnification by Customer. Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend WorkTango, its Affiliates and its and their directors, officers, employees and agents (the “WorkTango Indemnitees”) in any action, suit or proceeding brought by a third party against any of the WorkTango Indemnitees alleging that (i) the Customer Data, Customer Content or Customer’s misuse of the Service in violation of this Agreement, infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party ; or (ii) the Customer’s use of the Service (or the action of WorkTango at the direction of Customer, including without limitation the communication with any Respondent on Customer’s request) breaches any rights of Customer or other breaches applicable law, including without limitation any laws regarding Spam or commercial communications (“Customer Claims”) and shall indemnify and hold the WorkTango Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to such third party against any of the WorkTango Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (i) WorkTango shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) WorkTango shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) WorkTango shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) WorkTango shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.
- LIMITATION OF LIABILITY.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
- Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
- Every right, exemption from liability, release, defence, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.
- TERM AND TERMINATION.
- Term of Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect for the initial term specified in the Order Form or, if not so specified, an initial term of one (1) year (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”. If this Agreement expires and there are any outstanding Order Forms that have Subscription Periods that extend beyond the effective date of expiration of this Agreement, then this Agreement shall remain in effect in respect to such Order Forms until such Subscription Periods have completed, whereupon this Agreement shall expire (subject to Section 10.4 ( Surviving Provisions)). If this Agreement is terminated for cause by either of the parties then all Order Forms shall terminate at the same time as this Agreement terminates.
- Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer (but not otherwise), WorkTango shall refund Customer any prepaid fees for any periods after the termination of the Agreement.
- Outstanding Fees. Termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to WorkTango prior to the effective date of termination or expiration of this Agreement.
- Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.
- GENERAL PROVISIONS.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
- All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to WorkTango shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
- Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
- If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
- Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
- Venue; Waiver of Jury Trial. The provincial and federal courts located in Toronto, Ontario, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. 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.
- Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service WorkTango or hosting facility failures or delays involving hardware, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
- Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.
- Entire Agreement. This Agreement, including Order Forms constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and Order Form, the terms of this Agreement prevail unless otherwise expressly provided for in the applicable Order Form. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Last Updated: May 21, 2021