OnContact Hosting Terms and Conditions
Current as of August 13, 2020
Your use of WorkWise, LLC’s (“WORKWISE”) Products is governed by the terms and conditions contained in these Terms and Conditions (“Terms and Conditions”) and the various Order Forms by and between you or the entity you represent (“you”, “your” or “Licensee”) and WORKWISE in which you purchase Products or licenses to Software (including ONCONTACT Application Software). These Terms and Conditions is incorporated into the Order Forms by reference and is binding and effective upon acceptance for all Users, Licensees, and parties who accept these Terms and Conditions by executing an Order Form, executing an instrument of adherence to these Terms and Conditions, or other electronic click-through methods. For all other Users, your use and continued access to the ONCONTACT Software Application and other Products constitutes your agreement to these Terms and Conditions and to be bound by them.
1. Acceptance of Terms and Conditions
These Terms and Conditions are an electronic contract that sets out the legally binding terms of your use of the Products. By signing an Order Form and using the Products under these Terms and Conditions, you agree to the provisions, terms, obligations, and conditions contained in these Terms and Conditions.
You have the right to receive these Terms and Conditions in non-electronic form. You may request a non-electronic copy of these Terms and Conditions either before or after you accept them as detailed above. To receive a non-electronic copy of these Terms and Conditions, please contact us online at [email protected] or send a letter and self-addressed stamped envelope to:
Aptean
Attn: ONCONTACT HOSTING Terms and Conditions
4325 Alexander Dr #100
Alpharetta, GA 30022
In order to access and retain these electronic Terms and Conditions, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
Please print a copy of this document for your records. To retain an electronic copy of these Terms and Conditions, you may save it into any word processing program.
2. These Terms and Conditions May Change
These Terms and Conditions may be modified by WORKWISE from time to time, in its sole discretion without notice to you. Such modifications are effective upon posting by WORKWISE on www.aptean.com/aptean-crm-hosting-subscription-agreement (the “Site”). Your use and continued use of the Products following any such change is expressly contingent on your acceptance of any updated or modified Terms and Conditions and constitutes your agreement to follow and be bound by these Terms and Conditions as changed. For this reason, we encourage you to regularly review these Terms and Conditions on this Site.
3. Term
These Terms and Conditions will remain in full force and effect at all times while you use the Products and will terminate in accordance with the Subscription Period set forth in the applicable Order Form or the term set forth in any applicable SOW, whichever is later.
4. Definitions
The following terms shall have the following meanings:
4.1 “Customizations” means any and all changes, modifications, or enhancements to ONCONTACT, whether developed by Licensee, for Licensee by third parties, or by WORKWISE under separate Order Forms or Statement(s) of Work, and regardless by whom paid.
4.2 “Documentation” means the standard official technical manuals generally made available to WORKWISE’s Licensees and shall not include any marketing materials in any media, or any demonstration materials or tapes.
4.3 “DSA” mean the data storage area provided to Licensee within the Subscription Services for maintaining Licensee specific data.
4.4 “Email Marketing Terms of Use” means WORKWISE’S Email Marketing Software Terms of Use located at www.aptean.com/email-marketing-terms-of-use.
4.5 “Key User” means one or more Licensee employees designated by Licensee and trained by WORKWISE to be are responsible for initial problem resolution related to the Subscription Services for Licensee.
4.6 “Licensee Content” means any content owned by Licensee that is not WORKWISE CONTENT and that is displayed in its DSA, or linked or transmitted from or to its DSA, whether posted by Licensee or its Users including, but not limited to, photography, video, audio, images, graphics, illustrations, software, emails, meta tags and text, as well as any information or data disseminated or collected.
4.7 “ONCONTACT Application Software” or “ONCONTACT” means the totality of the standard unmodified ONCONTACT application software programs made available under these Terms and Conditions from WORKWISE. It is limited to machine-readable code (generally referred to as executable or object code) and Documentation, as updated from time to time and released for general distribution.
4.8 “Order Form” means a separately signed document referencing these Terms and Conditions which sets forth Products being purchased by Licensee under such specific terms as are set forth on that Order Form and the general terms set forth in these Terms and Conditions. Order Forms are incorporated by reference into these Terms and Conditions.
4.9 “Products” means any of the following, as later defined: Software, Professional Services and/or Subscription Services.
4.10 “Professional Services” means services other than Subscription Services provided by WORKWISE to Licensee on a for fee basis pursuant to an Order Form or SOW, whether they occur at Licensee’s premises, at WORKWISE, or through electronic media.
4.11 “Services” means Professional Services and Subscription Services.
4.12 “Software” means application software from either WORKWISE (including ONCONTACT Application Software) or a third party, and other software, including both data base and operating system software purchased by the Licensee pursuant to an Order Form.
4.13 “Statement of Work” or “SOW” refers to a separate document for any Professional Services item requiring detail beyond simple Order Form listing.
4.14 “Subscription Period” means the term of Subscription Services as set forth in the Order Form.
4.15 “Subscription Services” means the ONCONTACT hosting services set forth on the Order Form.
4.16 “Subscription Services Fees” means the fees set forth on the Order Form related to the Subscription Services.
4.17 “Third-Party Software” means the third party software, including application program interfaces and add-ons, incorporated in to the Software or otherwise used in the provision of the Services.
4.18 “Third-Party Terms” means the additional terms and conditions for any third‑party provider of Third-Party Software.
4.19 “User” means an individual (i.e. user log-in) or data collection device connected directly or indirectly to ONCONTACT, either attached or detached.
4.19.1 “User Level” means the maximum number of Users who are authorized to log in to ONCONTACT as set forth on an Order Form.
4.19.2 “Concurrent User” means the maximum number of Users authorized to log-in to ONCONTACT simultaneously. Concurrent Users are not linked to the identities of specific individuals.
4.19.3 “Named User” means a User who has an established individual login to ONCONTACT.
4.19.4 “Device” means a data collection hardware that serves as input device for transactions to ONCONTACT. The number of devices connected to ONCONTACT, when combined with Named and Concurrent Users, must not exceed the User Level set forth on the Order Form.
4.20 “WORKWISE Content” means all of WORKWISE’S intellectual property, including but not limited to computer software (in object code and source code), data, information, reusable images, graphics, formats, and all other components and any related know-how, methodologies, equipment, or processes used in providing the Services, and including but not limited to all workiations, copyrights, trademarks, patents, trade secrets, ideas and concepts, methodologies, templates, techniques, applications, and know-how conceived, developed, or reduced to practice by WORKWISE prior to performing the Services for Licensee, independent of performing the Services for Licensee, or during the performance of Services for Licensee unless otherwise specifically set forth in the Order Form or SOW.
5. License and Subscription Services
5.1 During the Subscription Period set forth in the Order Form, WORKWISE grants to Licensee a nonexclusive, nontransferable right to have the number of Users licensed under the Order Forms execute and use one copy of the Software and to use the Documentation, subject to these Terms and Conditions and any associated Order Form.
5.2 During the Subscription Period set forth in the Order Form, WORKWISE will provide Licensee with the Subscription Services listed in the Order Form in such a manner so as to be sufficient to permit Licensee’s licensed Users to access Licensee’s DSA via the World Wide Web.
5.3 The subscription applies to the number of Users set forth in the Order Form(s).
5.4 WORKWISE will take reasonable measures to protect Licensee’s data and prevent others from accessing same.
6. Availability of Subscription Services
6.1 WORKWISE agrees to use commercially reasonable measures to make the Subscription Services available to Licensee on a uninterrupted 24-hour-a-day, 7-day-a-week basis; provided, however, Licensee understands and acknowledges that the Subscription Services may be subject to interruptions for: (a) scheduled routine maintenance, (b) required repairs, and (c) loss or interruption of the Subscription Services beyond the control of WORKWISE, including, but not limited to, interruption or failure of communications or digital transmission connections and internet traffic or service issues. Licensee acknowledges and agrees that WORKWISE shall have no liability for interruptions as a result of any of the type of interruptions whatsoever.
7. ONCONTACT Support and Upgrades
7.1 ONCONTACT Support
7.1.1 WORKWISE, as part of the Subscription Services, shall provide to Licensee support via phone, email or chat weekdays, except holidays, between 7:00 AM and 6:00 PM Central Time for the licensed ONCONTACT Application Software.
7.1.2 All communications relating to the Subscription Services hereunder shall be supervised, and coordinated, by one or more Key Users for each Licensee. The Key User will be the main representative of Licensee and WORKWISE’s main point of contact at the Licensee.
7.1.3 In the event that following the first three months of the Subscription Period, Licensee’s support cases exceed an average of three hours each week during any calendar quarter, Licensee and WORKWISE shall attempt to determine the reason for such excess usage. If WORKWISE, in its sole discretion, determines that the excess telephone support calls are a result of inadequate training of Licensee’s personnel, then WORKWISE shall correct the inadequacy by providing additional ONCONTACT Application Software training to Licensee’s trainers at WORKWISE’s then current rates plus expenses. The trainers shall, in turn, provide additional training to Licensee’s personnel.
7.2 ONCONTACT Upgrades
7.2.1 WORKWISE, as part of the Subscription Services, agrees to make available to Licensee the latest version ONCONTACT Application Software.
7.2.2 Subscription Services includes conversion to the latest version of the ONCONTACT Application Software. See section 7.4 for services not included.
7.3 Licensee shall reimburse WORKWISE for all reasonable out-of-pocket expenses incurred by WORKWISE in connection with its performance of Subscription Services under this Section 7 of these Terms and Conditions, including expenses for meals, lodging and travel.
7.4 Subscription Services do not include any services or expenses associated with the implementation of the latest version of the ONCONTACT Application Software such as training or reapplying Customizations, which must be separately contracted for as Professional Services.
7.5 WORKWISE may subcontract all or a portion of the Subscription Services to one or more subcontractors. However, WORKWISE shall remain responsible for each subcontractor’s performance of Subscription Services under these Terms and Conditions.
8. Licensee Obligations in Using the Subscription Services
8.1 WORKWISE is not responsible for (i) obtaining and maintaining any Licensee equipment or any ancillary services needed to connect to, access or otherwise use the Service; (ii) paying third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Service; and (iii) ensuring that the Licensee equipment and any ancillary services are compatible with the Service
8.2 Licensee is responsible for all activities that occur under Licensee’s User accounts. Licensee shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify WORKWISE promptly of any such unauthorized use; (ii) comply with all applicable local, state, federal, and foreign laws in using the Service; (iii) not send spam or otherwise intentionally duplicative or unsolicited messages in violation of applicable laws; (iv) not knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or in violation of third party privacy rights; (v) not knowingly send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs; (vi) not knowingly interfere with or disrupt the integrity or performance of the Services or the data contained therein; (vii) use the Products in accordance with these Terms and Conditions and any Third-Party Terms; (viii) be responsible for any Breach of these Terms and Conditions and any Third-Party Terms; and (ix) not attempt to probe, scan, penetrate or test the vulnerability of WORKWISE’S system or network or to breach WORKWISE’S security or authentication measures, whether by passive or intrusive techniques, without WORKWISE’S express written consent.
8.2.1 Licensee has sole responsibility for creating, uploading, maintaining, monitoring, securing, and updating its DSA.
8.2.2 Licensee has sole responsibility for any Licensee Content displayed in its DSA, or linked or transmitted from or to its DSA, whether posted by Licensee or its Users.
8.2.3 Licensee is solely responsible for the accuracy of the Licensee Content placed in its DSA and for obtaining rights and permissions for all Licensee Content placed in its DSA. The Licensee Content will be properly adapted and translated by Licensee for posting to the WORKWISE server so that Licensee’s DSA may be accessed via the internet.
8.3 Licensee represents and warrants to WORKWISE that:
8.3.1 Licensee owns, or has the legal right to use, the Licensee Content, including, but not limited to, the right to use copyrighted works posted in its DSA.
8.3.2 The Licensee Content does not and will not include content which is inaccurate or which infringes the copyrights, trademarks, trade secrets, trade dress rights, patent rights, or any other intellectual property rights of any other person or entity.
8.3.3 Licensee and its Users will comply with all applicable laws and regulations related to the operation of its DSA, the Licensee Content and the use of the Subscription Services, including, without limitation, compliance with export laws, or any proprietary, contract, moral, or privacy rights of any third party.
8.3.4 Licensee has obtained any authorization(s) necessary for hypertext links from the DSA to other third-party websites.
8.3.5 Licensee will not allow unauthorized access to the Subscription Services.
8.3.6 Licensee agrees not to permit its Users to place on the DSA any content that is obscene, threatening, malicious, or which exposes WORKWISE to potential civil or criminal liability.
8.4 Licensee is responsible for all costs of any communications services, transport services, equipment, or other hardware or software necessary for Licensee or its Users to operate, access, or use the Subscription Services or access its DSA.
8.5 Licensee will include in its DSA and enforce DSA policies and disclaimers consistent with industry standards, including, but not limited to, copyright notices, trademark notices, privacy policies, content disclaimers, and limitations of liability as are customarily utilized by competing DSAs. Licensee represents and warrants that its DSA policies and disclaimers will be sufficient to protect WORKWISE against any claims against it by Licensee, its Users, and third parties related to Licensee’s DSA or the actions of its Users. Licensee represents that those DSA policies and disclaimers shall include protections under the Digital Millennium Copyright Act sufficient to protect WORKWISE from copyright infringement claims resulting from the actions of Licensee or its Users.
8.6 Licensee understands and acknowledges that the Products include certain Third-Party Software, services, data, or applications that may require that you enter into separate agreements with third parties. WORKWISE may also make available optional services, either directly or through integrations with the Products, provided by third parties. You will comply with and, upon request, execute, any agreements or acknowledgments that may be required for the use of such Third-Party Software, and hereby agree to comply with the Third-Party Terms, the terms of any license, or other agreement relating to the Third-Party Software included in the Products or made accessible to you through the Services. Additionally, your use of the Products or of such Third-Party Software or services will constitute your agreement to be bound by the terms of the Third-Party Terms, and all licensing, subscription, and similar agreements relating to such use.
9. Ownership of WORKWISE Content and Right to Compete
9.1 Licensee acknowledges that WORKWISE retains sole and exclusive ownership over all WORKWISE Content.
9.2 Licensee acknowledges that, in connection with the Products and Services purchased or licensed pursuant to these Terms and Conditions or any Order Form or SOW, WORKWISE has provided or may provide Licensee with WORKWISE Content or other proprietary or confidential information relating to its or its licensors’ products, processes, programs, plans, customers, or the like (“Confidential Information”). Confidential Information does not include (i) information that has become generally available to the public other than as a result of a disclosure by or at the direction of Licensee. All Confidential Information shall be kept in the strictest confidence and trust and may not, for a period of two (2) years after all the parties obligations under any Order Form, SOW, or these Terms and Conditions terminate, be disclosed to any person or entity other than Licensee’s own employees having a need to know the information and having been bound to a confidentiality agreement under no less strict terms than this confidentiality obligation, without the express written consent of WORKWISE.
9.3 WORKWISE is in the business of designing and providing Subscription Services and Professional Services. Licensee acknowledges and agrees that WORKWISE has the right to provide to third parties services which are the same or similar to the Subscription Services and Professional Services provided to Licensee, and to use or otherwise exploit any WORKWISE Content in providing such services without notice to Licensee.
9.4 Upon the termination for any reason of any Order Form, SOW, the Subscription Period, or these Terms and Conditions the license granted to Licensee under Section 5.1 of these Terms and Conditions shall immediately terminate and be of no further force or effect and both parties shall return to the other as appropriate, all Product and Confidential Information, in the other’s possession or, with the other’s approval, destroy such information with certification by an officer. The parties’ obligations relating to Confidential Information shall survive the termination of any Order Form or the relationship between WORKWISE and Licensee under these Terms and Conditions. The Licensees’ payment obligations under these Terms and Conditions, or any accepted Order Form or Statement of Work shall survive the termination of these Terms and Conditions.
9.5 The parties agree that nothing in this Section 9 shall be construed to limit or negate any common or statutory law regarding torts or trade secrets where it provides WORKWISE with broader protection than that provided herein. Licensee shall take all steps that are reasonably necessary to prevent unauthorized misappropriation or disclosure of the trade secrets of WORKWISE and shall not use or disclose such trade secrets as long as they remain trade secrets.
9.6 Licensee acknowledges that any breach of any provision of Section 9 of these Terms and Conditions will cause substantial and irreparable harm to WORKWISE for which money damages alone would be an inadequate remedy. Accordingly, WORKWISE shall in any such event be entitled to obtain injunctive and other forms of equitable relief to prevent such breach and to recover from Licensee, in addition to all damages suffered by WORKWISE, WORWKISE’S costs and expenses (including without limitation reasonable attorneys’ fees) incurred as a result of such breach, in addition to any other rights or remedies available at law, in equity or by statute.
10. Licensee Content
10.1 WORKWISE acknowledges that Licensee retains sole and exclusive ownership over all Licensee Content. During the Subscription Period, Licensee grants to WORKWISE the right to move, modify, and otherwise use the Licensee Content, but only to the extent necessary to provide the Subscription Services and Professional Services to Licensee and to enforce these Terms and Conditions.
10.2 Prior to Licensee’s termination of the Subscription Services, Licensee can request that WORKWISE return Licensee data by sending an email to [email protected]. If such request is made, then following Licensee’s termination of the Subscription Services, WORKWISE will post Licensee’s data to an FTP site for 30 days, during which Licensee must retrieve same. If Licensee has an expedited need for data, it should notify WORKWISE by email at the foregoing address and WORKWISE will quote Licensee a fee for accomplishing same. In all other events, Licensee represents and warrants that it shall be solely responsible for the copying, back-up or other removal any Licensee data it wishes to retain after the expiration of these Terms and Conditions and Licensee’s Subscription Period, and that WORKWISE shall have no liability whatsoever to maintain Licensee data after Licensee’s Subscription Services have terminated.
11. Rights of WORKWISE to Take Down DSA Content
11.1 WORKWISE is not obligated to monitor the Licensee Content in its DSA, but reserves such right in its sole discretion.
11.2 WORKWISE reserves the right, in its sole discretion, to refuse to include in the DSA (or to take down) any Licensee Content that WORKWISE deems, in its sole discretion, to be: (a) inappropriate, pornographic, obscene, slanderous, or profane, or advocates hate speech or violence; (b) intended to advocate or advance computer hacking; (c) constitutes or advocates illegal activity; or (d) constitutes a Breach of these Terms and Conditions;
11.3 No refunds of any type will be granted to Licensee if WORKWISE suspends or terminates the Subscription Services as a result of Licensee’s violation of this Section.
12. Professional Services
12.1 Both WORKWISE and Licensee must approve, in writing, any Professional Services project prior to WORKWISE beginning such project. The written approval requirement is satisfied either by detailing such projects within an Order Form or by separate Statements of Work. Any Professional Services related to, incidental to, or in support of Subscription Services or an existing Order Form shall be subject to and governed by these Terms and Conditions. All Professional Services time is billable to the Licensee whether it occurs at the Licensee’s premises, at WORKWISE’S premises, or over the phone.
12.2 All Professional Services shall be billed to Licensee based on WORKWISE’S then current time and material rates listed on the Order Form or SOW. In addition to these rates, Licensee will pay reasonable out-of-pocket expenses for work done at Licensee’s location such as meals, lodging, transportation, parking, and auto mileage. All Professional Services travel time is billable at 1/2 the regular rate for the selected service.
12.3 When providing Professional Services, there will be a 1/2 hour minimum Professional Services charge for all work performed at WORKWISE, including telephone calls. There will be a 4-hour minimum Professional Services charge for work performed on-site. A 50% premium is added for all work performed on weekends and holidays for the selected service. If Licensee cancels any on-site session without a minimum of 7 calendar days advance notice or cancels a web session without a minimum of 3 calendar days advance notice, LICENSEE will be liable for payment to WORKWISE for one day plus any direct expense incurred by WORKWISE.
12.4 WORKWISE may subcontract all or a portion of the Professional Services to one or more subcontractors. However, WORKWISE shall remain responsible for each subcontractor’s performance of the Professional Services under these Terms and Conditions.
12.5 Payment terms on all Professional Services invoices are net 30 days from invoice date; a late payment fee will accrue at the rate of 1.5% per month from the due date.
13. Breach
The following actions, which is not an exhaustive list, constitute a “Breach” of these Terms and Conditions:
13.1 Licensee’s failure to make a payment when due under these Terms and Conditions.
13.2 Licensee’s failure to comply with or breach of any term, provision, representation and warranty, or obligation of these Terms and Conditions, the Email Marketing Terms of Use, any Order Form, any SOW, or any Third-Party Terms.
14. Remedies for Breach
14.1 In the event that Licensee commits a Breach, WORKWISE may, in its sole discretion: (a) suspend the provision of Services under these Terms and Conditions, or (b) terminate any ongoing Subscription Services, Professional Services, and any other WORKWISE obligations under these Terms and Conditions upon written notice to Licensee. In the event WORKWISE elects to terminate or suspend its relationship with Licensee under these Terms and Conditions as described above, Licensee will remain obligated to pay any outstanding amounts due to WORKWISE through the date of termination.
14.2 WORKWISE reserves the right to seek damages from Licensee incurred as a result of a Breach, including but not limited to actual, incidental, consequential, lost profits or punitive damages and including but not limited to any other relief available to WORKWISE at law or equity.
14.3 If WORKWISE is required to enforce its rights under these Terms and Conditions, Licensee agrees to reimburse WORKWISE for any reasonable collection costs, attorneys’ fees, expenses, and court costs.
15. Indemnification
15.1 Subject to these Terms and Conditions, WORKWISE shall defend, indemnify and hold Licensee harmless from and against any loss or damage (including reasonable attorneys’ fees) incurred in connection with demands, claims, suits, or proceedings made or brought against Licensee by a third party alleging that the use of the Services as contemplated hereunder infringes the intellectual property rights of a third party (a “Licensee Indemnification Claim”); provided, that Licensee (i) promptly gives written notice of the Licensee Indemnification Claim to WORKWISE; (ii) gives WORKWISE sole control of the defense and settlement of the Licensee Indemnification Claim; and (iii) provides WORKWISE, at WORKWISE’S cost, all reasonable assistance.
15.2 Subject to these Terms and Conditions, Licensee shall defend, indemnify and hold WORKWISE harmless against any loss or damage (including reasonable attorneys’ and third party liabilities) resulting from, arising out of, imposed upon, or incurred in connections with demands, claims, suits, or proceedings brought or made against WORKWISE by reason of (a) any Breach on the part of Licensee, (b) the reckless or willful misconduct of Licensee, which includes, but is not limited to, claims related to personal injury, death, or real or personal property damage, and (c) Licensee’s acts or omissions that harms or infringes the intellectual property rights of a third party (collectively a “WORKWISE Indemnification Claim”); provided, that WORKWISE (i) promptly gives written notice of the WORKWISE Indemnification Claim to Licensee; (ii) gives Licensee sole control of the defense and settlement of the WORKWISE Indemnification Claim (provided that Licensee may not settle or defend any WORKWISE Indemnification Claim unless it unconditionally releases WORKWISE of all liability); and (iii) provides to Licensee, at Licensee’s cost, all reasonable assistance.
16. Warranty and Limitation of Liability
16.1 WORKWISE warrants that ONCONTACT shall perform in all material respects in substantial conformity with the Documentation for the latest version available from WORKWISE for general commercial distribution (“Current Release”) and the two (2) previous releases immediately proceeding the Current Release. As Licensee’s sole and exclusive remedy related to a breach of the foregoing warranty, WORKWISE’S entire liability related to such breach of warranty will be to fix, provide a work around or otherwise remedy a problem that results in ONCONTACT to be nonconforming, so that ONCONTACT operates as warranted. If after thirty (30) days from the date of receipt of written notice (including email) of any non-conforming issue with ONCONTACT from Licensee, WORKWISE does not fix the non-conforming ONCONTACT issue, WORKWISE shall refund a pro rata portion of the Subscription Services fees from the date of Licensee’s notice of the ONCONTACT non-conformance through the remainder of the applicable Subscription Period.
16.2 The warranty set forth in Section 16.1 is void to the extent that any problem which results in the Subscription Services performance or system availability to be other than as warranted is due to (a) the incorporation, combination, operation, or use of the ONCONTACT in or with any technology, including any software, hardware, firmware, system or network, or service not approved by WORKWISE within or for the Subscription Services or specified for use in the Documentation; (b) the modification of ONCONTACT or other Software other than (i) in accordance with an Order Form or SOW, or (ii) with WORKWISE’S express written authorization and written directions; (c) the negligence, abuse, misapplication or misuse of ONCONTACT or the Software by or on behalf of Licensee, Licensee’s representatives or a third party; (d) the use of Subscription Services, ONCONTACT, or the Software by or on behalf of Licensee outside the purpose, scope or manner of use contemplated by these Terms and Conditions or an applicable Order Form; (e) the fault of Licensee equipment and/or third party software, hardware or network infrastructure outside of WORKWISE’s data center and not under the direct control of WORKWISE; (f) the failure of the external internet beyond WORKWISE’S network; (g) any electrical or Internet access disruptions; (h) any actions or inactions of Licensee or any other third party not under the direct control of WORKWISE; (i) attacks (i.e. hacks, denial of service attacks, malicious introduction of viruses and disabling devices) caused by third parties; or (j) other events of force majeure as defined in Section 19 below.
16.3 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE IN SECTION 16.1, ALL PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS AND WORKWISE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
16.4 IN NO EVENT WILL WORKWISE BE LIABLE UNDER THESE TERMS AND CONDITIONS, THE EMAIL MARKETING TERMS OF USE, OR ANY ORDER FORM OR SOW FOR SPECIAL DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE, OR LOST PROFITS RESULTING FROM THE BREACH OF THESE TERMS AND CONDITIONS OR THE USE, INTERRUPTION, OR INABILITY OF LICENSEE OR ITS USERS TO USE ANY LICENSEE CONTENT, PRODUCTS OR SERVICES, ERRORS, VIRUSES, OR SECURITY ISSUES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WORKWISE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL WORKWISE BE OBLIGATED TO PAY DAMAGES TO LICENSEE IN EXCESS OF THE TOTAL FEES PAID UNDER ANY ORDER FORMS OR INVOICES BY LICENSEE IN THE 12 MONTH PERIOD PRECEDING THE DATE LICENSEE MADE WORKWISE AWARE OF THE EVENT GIVING RISE TO SUCH CLAIM.
17. Governing Law and Venue
17.1 These Terms and Conditions will be governed and construed in accordance with the internal laws of the State of Wisconsin, irrespective of its conflict of laws principles. The parties agree that any action or dispute regarding these Terms and Conditions that is not subject to arbitration hereunder will be brought in the state or federal courts located within Milwaukee County.
17.2 The parties will endeavor to settle amicably any controversy, claim or dispute arising under or related to these Terms and Conditions (a “Claim”). Any Claim arising under or related to these Terms and Conditions (including the arbitration of such a Claim) which is not resolved through negotiation shall then be finally settled by binding arbitration in Milwaukee County, Wisconsin in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The selection of an arbitrator shall be made pursuant to and under the terms of policy and procedures then in effect issued by the American Arbitration Association, Commercial Arbitration Division. This agreement to arbitrate does not apply to any dispute in which any party’s claimed damages are $5,000 or less.
17.3 The costs of the prevailing party in enforcing these Terms and Conditions, the Email Marketing Terms of Use, and any related Order Form or SOW, the entirety of which is incorporated by reference into these Terms and Conditions, including any collection fees, court costs or arbitration fees and reasonable attorney’s fees, shall be paid by the unsuccessful party.
18. Notices
If a notice is required under these Terms and Conditions, the notice must be sent by regular mail, with a return receipt (a) to Licensee at the address provided on the Order Form or as otherwise updated by Licensee from time to time and (b) to WORKWISE at the following address:
WorkWise, LLC
c/o Aptean, Inc.
4325 Alexander Dr., Suite 100
Alpharetta, GA 30022
Attn: General Counsel
19. Force Majeure
Except for the payment of fees by Licensee, if the performance of any part of these Terms and Conditions by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial, act of war, act of terrorism, or governmental action, labor dispute, act of God, equipment failure or any other cause beyond the control of either party, that party will be excused from such performance to the extent that it is prevented, hindered, or delayed.
20. Assignment and Waiver
Licensee may not assign its rights, duties, or obligations under these Terms and Conditions, and any attempt to do so will be deemed a breach of these Terms and Conditions. No failure or delay by Licensee or WORKWISE in exercising any right under these Terms and Conditions shall constitute a waiver of that right.
21. Severability
If any part of these Terms and Conditions are ruled to be unenforceable, then such part shall be revised, eliminated, or limited to the minimum extent necessary. The remainder of the Terms and Conditions, including any revised portion, shall remain and be in full force and effect.
22. Survival
All provisions of these Terms and Conditions relating to Licensee warranties, proprietary rights, limitation of liability, Licensee indemnification obligations, payment obligations, choice of law and remedies will survive the termination or expiration of these Terms and Conditions.
23. Authority
Each party hereto represents and warrants to the other party that it has full legal authority to enter into these Terms and Conditions.
24. Entire Agreement
These Terms and Conditions, the Email Marketing Terms of Use, and any associated Order Forms and SOWs constitutes the entire agreement between WORKWISE and Licensee with respect to access to or use of the Services. These Terms and Conditions replace and supersede any preexisting communications, writings, negotiations, understandings, or agreements between the parties. In the event of any conflict between the provisions in these Terms and Conditions and an Order Form or SOW executed hereunder, the terms of such Order Form or SOW shall prevail to the extent of any inconsistency. In the event of any conflict between the provisions in these Terms and Conditions and the Email Marketing Terms of Use, the Email Marketing Terms of Use shall prevail to the extent of any inconsistency related solely to the use of the Email Marketing Software as that term is defined in the Email Marketing Terms of Use. Notwithstanding anything to the contrary therein, no terms or conditions stated in a Licensee purchase order or in any other Licensee order documentation shall be incorporated into or form any part of these Terms and Conditions, and all such terms or conditions shall be null and void.
I HAVE READ THESE TERMS AND CONDITIONS AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.