Last Modified: October 3, 2019
This is a contract between you (the Customer) and us (ServiceWorks). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms.
We periodically update these
terms. If you have an active ServiceWorks subscription, we will let you know
when we do via an email or in-app notification.
Finally, we know legal terms
can sometimes be difficult to navigate, so we wanted to give you a roadmap of
the Agreement:
·
A.
DEFINITIONS.
This is where we provide
the detail on what the key defined terms in the Agreement mean. You can think
of this kind of like a contractual dictionary.
·
B. GENERAL COMMERCIAL
TERMS.
Here’s where you can find the basics about how our
Subscription Service and Consulting Services are provided. For example, you can
find information on access and acceptable use. These terms apply to all our
products and service offerings.
·
C. SUBSCRIPTION TERMS.
Customers of ours subscribe to use our software (yep, it’s
SaaS), and there are some fundamental terms that apply to each subscription.
There are some differences between the different types of subscriptions, and
here’s where you can find that detail.
·
D. GENERAL LEGAL TERMS
. As we mention above, this is a contract, and contracts are
filled with legal terms. In this section, we’ve collected the many of the
remaining legal terms that make up our Customer Terms of Service.
"Agreement" means
these Customer Terms of Service and all materials referred or linked to in
here.
"Billing Period"
means the period for which you agree to prepay fees under an Order Form, which
will be the same as or shorter than the Subscription Term as specified in the
Order Form. For example, if you subscribe to the Subscription Service for a one
(1) year Subscription Term, with a twelve (12) month upfront payment, the
Billing Period will be twelve (12) months.
"Communication
Services" means third-party forums, online communities, blogs, personal
web pages, calendars, and/or other social media communication facilities (such
as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service
that enable you to communicate with the public or with a private group.
“Confidential Information”
means all information provided by you or us ("Discloser") to the
other (“Receiver”), whether orally or in writing that is designated as
confidential. Confidential Information will include Customer Data and
information about the Discloser’s business plans, technical data, and the terms
of the Order. Confidential Information does not include any information
that (i) is or becomes generally known to the public
without breach of any obligation owed to the Discloser or (ii) was known to the
Receiver before receipt from the Discloser.
"Contact" means a
single individual (other than a User) whose Contact Information is stored by
you in the Subscription Service.
"Contact Information"
means the name, email address, phone number, online user name(s),
telephone number, and similar information submitted by visitors to your landing
pages on the Subscription Service or uploaded by you to the Subscription
Service.
"Consulting Services"
means the professional services provided to you by us, which may include
training services, installation, integration or other consulting services.
"Customer Data" means
all information that you submit or collect via the Subscription Service.
Customer Data does not include Enrichment Data.
"Customer Materials"
means all materials that you provide or post, upload, input or submit for
public display through the Subscription Service.
"Email Send Limit"
means the number of emails that you may send in any given calendar month.
“Free Services” means the Subscription Service
or other products or features made available by us to you on an unpaid trial or
free basis.
"ServiceWorks
Content" means all information, data, text, messages, software, sound,
music, video, photographs, graphics, images, and tags that we incorporate into
the Subscription Service or Consulting Services.
"Maximum Contacts"
means the maximum number of Contacts you are permitted to use with the
Subscription Service as identified in your Order Form, plus any Contacts added
as part of an upgrade.
"Order" or
"Order Form" means the ServiceWorks-approved form or online
subscription process by which you agree to subscribe to the Subscription
Service and purchase Consulting Services. Most Orders are completed through our
online payment process or via in-app purchase. The Order may be referred to as
a "Statement of Work" if you are purchasing only Consulting Services.
“Paid Users” means those types
of Users (defined below) for which we charge you fees as set forth in our
Product and Services Catalog.
“Product and Services Catalog”
means ServiceWorks’s Product and Services Catalog
as updated by us from time-to-time.
"Sensitive
Information" means (a) credit or debit card numbers; personal financial
account information; Social Security numbers or local equivalents; passport
numbers; driver’s license numbers or similar identifiers; passwords; racial or
ethnic origin; physical or mental health condition or information; or other
employment, financial or health information, including any information subject
to the Health Insurance Portability and Accountability Act, the Payment Card
Industry Data Security Standards, and other regulations, laws or industry
standards designed to protect similar information; and (b) any information
defined under EU data protection laws as ‘Sensitive Personal Data’.
"Subscription Fee"
means the amount you pay for the Subscription Service.
"Subscription
Service" means all of our web-based and mobile app tools and platforms
that you have subscribed to by an Order Form or that we otherwise make
available to you, and are developed, operated, and maintained by us, accessible
via
or another designated URL, and any ancillary products and
services, including website hosting, that we provide to you.
"Subscription Term"
means the initial term of your subscription to the applicable Subscription Service,
as specified on your Order Form(s), and each subsequent renewal term (if any).
For Free Services, the Subscription Term will be the period during which you
have an account to access the Free Services.
"Third-Party
Products" means non-embedded products and professional services that are
provided by third parties which interoperate with or are used in connection
with the Subscription Service.
"Third-Party Sites"
means third-party websites linked to from within the Subscription Service,
including Communications Services.
"Users" means your
employees, representatives, consultants, contractors or agents who are
authorized to use the Subscription Service for your benefit and have unique
user identifications and passwords for the Subscription Service.
"ServiceWorks",
"we", "us" or “our” means the applicable contracting entity
as specified in the ‘Contracting Entity and Applicable Law’ section.
"You",
"your" or “Customer” means the person or entity using the
Subscription Service or receiving the Consulting Services and identified in the
applicable account record, billing statement, online subscription process, or
Order Form as the customer.
During
the Subscription Term, we will provide you access to use the Subscription
Service as described in this Agreement and the applicable Order. We may also
provide you access to use our Free Services at any time by activating them in
your ServiceWorks account. We might provide some or all elements of the
Subscription Service through third party service providers.
You may subscribe to additional features of the Subscription Service by placing an
additional Order or activating the additional features from within your ServiceWorks
account (if this option is made available by us.). This Agreement will apply to
all additional Order(s) and all additional features that you activate from
within your ServiceWorks account.
We
try to make the Subscription Service available 24 hours a day, 7 days a week,
except for planned down-time for maintenance.
You
may purchase Consulting Services by placing an Order with us. Unless we
otherwise agree, the Consulting Services we provide are described in the
Product and Services Catalog and will be delivered in English. Fees for
these Consulting Services are in addition to your Subscription Fee. If you
purchase Consulting Services that recur, they will be considered part of your
subscription and will renew in accordance with your subscription.
All Consulting Services are
performed remotely, unless you and we otherwise agree.
For Consulting Services
performed on-site, you will reimburse us our reasonable costs for all expenses
incurred in connection with the Consulting Services. Any invoices or other
requests for reimbursements will be due and payable within thirty (30) days of
the date of the invoice.
If there are a specific number
of hours included in the Consulting Services purchased, those hours will expire
as indicated in the applicable description, which expiration period will
commence upon purchase (the “Expiration Period”). If there are
deliverables included in the Consulting Services purchased, it is estimated
that those deliverables will be completed within the time period indicated as
the delivery period in the applicable description, which delivery period will
commence upon purchase (the “Delivery Period”). If there is no Expiration
Period or Delivery Period indicated, then it will be one hundred and eighty
(180) days from purchase. If the Consulting Services provided are not
complete at the end of the Delivery Period due to your failure to make the
necessary resources available to us or to perform your obligations, such Consulting
Services will be deemed to be complete at the end of the Delivery Period. If
the Consulting Services provided are not complete at the end of the Delivery
Period due to our failure to make the necessary resources available to you or
to perform our obligations, the Delivery Period will be extended to allow us to
complete such Consulting Services.
We might provide some or all
elements of the Consulting Services through third party service providers.
Consulting Services are non-cancellable and all fees for Consulting
Services are non-refundable.
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you: (i) exceed your Maximum Contacts, Email Send Limit, User or other applicable limits (see the ‘Limits’ section below), (ii) upgrade products or base packages, (iii) subscribe to additional features or products, including additional Contacts, or (iv) unless otherwise agreed to in the Order.
For our products that have
applicable User limits, you will be charged fees associated with all Paid
Users. Your number of Paid Users will not decrease, even if there is a
subsequent reduction in the number of assigned Paid Users.
b. Fee Adjustments in Next Billing Period. We determine the User tier for the next Billing Period by reviewing the number of Users in your account. We complete this review between forty (40) and twenty-five (25) days before the start of your next Billing Period for Annual Contract. For monthly contract we complete this review on the last day of your Billing Period. If the number of Users in your account exceed your Maximum Users when we complete this review, then your Subscription Fee will increase at the beginning of the next Billing Period up to the tier price which corresponds with the reviewed number of Users. Tier prices are as set forth in our Product and Services Catalog.
We allow you to reasonably manage
the number of Users during a Billing Period and will not count Users removed
before our review, unless these Contacts are temporarily removed to avoid a fee
increase. If Users are temporarily removed to avoid a fee increase, we may consider
the maximum number of Users from the reviewed Billing Period for the purposes
of determining your User tier.
This review and upgrade process
will continue for each Billing Period during the Subscription Term.
c. Fee Adjustments During a Billing Period. If you are bound by Notification Limitation or Job Count the Subscription Fee will increase during the course of a Billing Period if you exceed your Limit in a Billing Period.
The Subscription Fee will
increase during a Billing Period up to the corresponding base package and tier
price (as set forth in our Product and Services Catalog) if you exceed the limit,
add Paid Users, exceed other applicable limits (except as set forth in the ‘Fee
Adjustments in Next Billing Period’ section), change or add products, or
subscribe to additional features for use during the Billing Period. We may
choose to decrease your fees upon written notice to you.
d. Fee Adjustments at Renewal. For our products, upon renewal, your subscription will be adjusted to match the number of Users actually assigned at the end of your then-current Subscription Term, provided that, if you purchased a product with included Users, then you’ll continue to have those Users included even if they are not assigned. For more detail on renewal pricing, see the ‘Term and Renewal’ section below.
e. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
f. Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (7) days from the date of the invoice, unless otherwise specified in the Order Form.
g. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your ServiceWorks account. All payment obligations are non-cancelable, and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term. If you are a ServiceWorks Agency Partner that purchases on behalf of a client, you agree to be responsible for the Order Form and to guarantee payment of all fees.
h. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
a. Acceptable Use. You will comply with our Acceptable Use Policy.
b. Prohibited and Unauthorized Use. You will not use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the
Subscription Service if you are legally prohibited from receiving or using the
Subscription Service under the laws of the country in which you are resident or
from which you access or use the Subscription Service. The Subscription Service
is not designed to comply with industry-specific regulations such as the Health
Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley
Act (GLBA), or the Federal Information Security Management Act (FISMA), so you
may not use the Subscription Service where your communications would be subject
to such laws.
You will notify us right away
of any unauthorized use of your Users’ identifications and passwords or your account.
c. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
d. Use of Communication Services. You agree to use Communication Services only in compliance with any terms of use specified by each Communication Service. We do not control the content, messages or information found in the Communication Services. We will not have any liability with regards to the Communication Services and any actions resulting from your use of the Communication Services.
e. Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product.
a. Term and Renewal. Your initial subscription period will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription period, or one year. To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in the ‘Subscription Types’ section below.
The renewal pricing set forth
in your Order will apply, subject to adjustment as specified in the ‘Fees and
Payments’ section above. If renewal pricing is not included in your Order, then
our standard pricing available in our Product and Services Catalog on the date
of renewal will apply. If you use our Free Services, we will make the Free
Services available to you free of charge until earlier of (a) the date on which
your free subscription is terminated or (b) the start date of your paid
subscription.
b. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the ServiceWorks subscription during your Subscription Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the ServiceWorks email send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
Suspension for Present Harm. If your website, or use of, the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
g. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
h. Effect of Termination or Expiration. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause. You may request the deletion of your ServiceWorks account after expiration or termination of your subscription by sending a request to accounting@Service.Works . You will continue to be subject to this Agreement for as long as you have access to a ServiceWorks account.
Upon termination or expiration
of this Agreement, you will stop all use of the Subscription Service and ServiceWorks
Content, and if we request, you will provide us written confirmation that you
have discontinued all use of ServiceWorks Data We may or may not provide you
the opportunity to retrieve Customer Data after termination or expiration,
depending on the type of applicable subscription as specified in the ‘Retrieval
of Customer Data’ section below. If you terminate this Agreement for cause, we
will promptly refund any prepaid but unused fees covering use of the
Subscription Service after termination. If we terminate this Agreement for
cause, you will promptly pay all unpaid fees due through the end of the
Subscription Term. Fees are otherwise non-refundable.
1. Subscription Types. We
offer three main types of subscriptions: (1) Full-Service Subscriptions, (2)
Limited Service Subscriptions, and (3) Free Subscriptions. There are different
terms that apply depending on the subscription you purchase, and we cover those
differences in this section. Unless otherwise agreed to in an Order, the
following subscription types apply to the products specified:
(1) Full-Service Subscriptions:
You get full access to all our features that are not otherwise Limited Service
Subscriptions.
(2) Limited Service
Subscriptions: You get access to all features but they
are limited in usage or count.
(3) Free Subscriptions: ServiceWorks
CRM and all other products for which you do not pay us a Subscription Fee that
we do not otherwise name in this ‘Subscription Types’ section.
2. Limits. The
limits that apply to you will be specified in your Order Form, this Agreement
or in our Product and Services Catalog, and for our Free Subscriptions, these
limits may also be designated only from within the product itself. You must be
18 years of age (or 20 years of age, if you are subject to the laws of Japan)
or older to use the Subscription Service.
For our Full-Service
Subscriptions, if we make modifications to the limits set forth in the Product
and Services Catalog that would negatively impact you, these modifications will
not apply to you until the start of your next renewal Subscription Term. On
renewal, the current product usage limits in our Product and Services Catalog
will apply to your subscription, unless you and we otherwise agree.
For our Limited Service
Subscriptions, we may change the limits that apply to you at any time in our
sole discretion.
For our Free Subscriptions, we
may change the limits that apply to your use at any time in our sole discretion
without notice to you, regardless of whether or not these are used in
conjunction with other products or services for which you pay us a fee.
3. Downgrades. For
our Professional, Premium and Enterprise edition products, you may not
downgrade your subscription and in order to avoid additional charges, you
should purchase the appropriate tier of Subscription Service for your
anticipated needs. For our Basic and Standard edition products, you may
downgrade your subscription at the start of your next renewal Subscription
Term, as specified in the ‘Fee Adjustments at Renewal’ section above.
4. Modifications. We
modify the Subscription Service from time to time, including by adding or
deleting features and functions, in an effort to
improve your experience.
For our Full-Service
Subscriptions, we will not make changes to the Subscription Service that
materially reduce the functionality provided to you during the Subscription
Term.
For our Limited Service
Subscriptions and Free Subscriptions, we may make changes that materially
reduce the functionality provided to you during the Subscription Term.
5.
Customer
Support.
If you pay us a Subscription Fee for our Basic or Standard
edition products, email and in-app support is included at no additional
cost. If you pay us a Subscription Fee for our Professional, Premium or
Enterprise edition products or have purchased the ServiceWorks CMS, phone,
email and in-app support is included at no additional cost. Phone support
for Professional, Premium or Enterprise edition subscriptions is available
from 8pm Sunday to 8pm Friday EST (Central Standard Time), with reduced hours
during holidays in Singapore, Ireland, and the US. We accept email and in-app support questions 24 Hours per Day x 7 Days per
Week. Email and in-app questions can be submitted through the help widget in
the lower right hand corner of your account. Email and
in-app responses are provided during phone support hours only. We attempt to
respond to email and in-app support questions within one business day; in
practice, our responses are generally even faster. We do not promise or
guarantee any specific response time. We may limit or deny your
access to support if we determine, in our reasonable discretion, that you are
acting, or have acted, in a way that results or has resulted in misuse of
support or abuse of ServiceWorks representatives. Issues resulting
from your use of API's or your modifications to code in the Subscription
Service may be outside the scope of support. We will only provide support for
integrations which are listed in-app as being supported by ServiceWorks.
If you do not pay a
Subscription Fee, support is available to you through the ServiceWorks
Community available at:
blog.Service.Works
6.
Notice of
Non-Renewal.
Your subscription will automatically renew according to
the ‘Term and Renewal’ section above.
Unless otherwise specified in
your Order, to prevent renewal of a Full-Service Subscription, you or we must
give written notice of non-renewal and this written notice must be received no
less than ten (10) days in advance of the end of the Subscription Term.
Unless otherwise specified in
your Order, to prevent renewal of a Limited Service Subscription, you or we
must give written notice of non-renewal and this written notice must be
received before the next renewal period begins.
To prevent continuation of the
Subscription Term of a Free Subscription, you or we may close your account.
7.
Retrieval of
Customer Data.
For our Full-Service Subscriptions, as long as
you have paid all fees owed to us, if you make a written request within thirty
(30) days after termination or expiration of your subscription, we will provide
you with temporary access to the Subscription Service to retrieve, or we will
provide you with copies of, all Customer Data then in our possession or
control. If we provide you with temporary access to the account, we may charge
a re-activation fee. We may withhold access to Customer Data until you pay any
fees owed to us. Thirty (30) days after termination or expiration of your
Subscription, we will have no obligation to maintain or provide you the
Customer Data and may, unless legally prohibited, delete all Customer Data in
our systems or otherwise in our control.
For our Limited Service and
Free Subscriptions, we will not provide you with any access to Customer Data after
termination or expiration of your subscription. 1. Customer Data
a. Limits on ServiceWorks. We
will not use, or allow anyone else to use, Customer Data to contact any
individual or company except as you direct or otherwise permit. We will use
Customer Data only in order to provide the Subscription Service and Consulting
Services to you and only as permitted by applicable law, this Agreement, and
our Product Privacy Policy. If you have engaged with a partner of ours that
participates in our Agency Partner Program, we may monitor your partner’s
activity within your ServiceWorks account and make information related to your
subscription available to your partner for the purposes of managing and
improving the ServiceWorks Agency Partner Program. We will not use Contact
Information for our own marketing purposes.
b.
Aggregate
Data.
We may monitor use of the Subscription Service by all of our customers and use the information gathered in an
aggregate and anonymous manner. You agree that we may use and publish such
information, provided that such information does not incorporate any Customer
Data and/or identify you. We may, however, use Customer Data as part of
internal data processes to develop and improve Enrichment Data. With these
internal data processes, in no event will Customer Data be disclosed, included
within or provided to other customers or third parties. For clarity any data
provided to other customers or third parties will only be in an aggregated and
anonymous manner.
c. Safeguards. We
will maintain commercially appropriate administrative, physical, and technical
safeguards to protect Customer Data. You consent to the processing of Customer
Data in the United States.
2. ServiceWorks’s
Proprietary Rights.
This is an Agreement for access to and use of the
Subscription Service, and you are not granted a license to any software by this
Agreement. The Subscription Service and Consulting Services are protected by
intellectual property laws, they belong to and are the property of us or our
licensors (if any), and we retain all ownership rights to them. You agree not
to copy, rent, lease, sell, distribute, or create derivative works based on the
ServiceWorks Content, the Subscription Service, or the Consulting Services in
whole or in part, by any means, except as expressly authorized in writing by
us.
We encourage all customers to
comment on the Subscription Service or Consulting Services, provide suggestions
for improving it, and vote on suggestions they like. You agree that all such comments
and suggestions will be non-confidential and that we own all rights to use and
incorporate them into the Subscription Service or Consulting Services, without
payment or attribution to you.
3.
Customer’s
Proprietary Rights.
As between the parties, you own and retain all
rights to the Customer Materials and Customer Data. This Agreement does not
grant us any ownership rights to Customer Materials or Customer Data. You grant
permission to us and our licensors to use the Customer Materials and Customer
Data only as necessary to provide the Subscription Service and Consulting
Services to you and as permitted by this Agreement. If you are using the
Subscription Service or receiving Consulting Services on behalf of another party,
then you represent and warrant that you have all sufficient
and necessary rights and permissions to do so.
4. Confidentiality. The
Receiver will: (i) protect the confidentiality of the
Confidential Information using the same degree of care that it uses with its
own confidential information of similar nature, but with no less than
reasonable care, (ii) not use any Confidential Information for any purpose
outside the scope of this Agreement, (iii) not disclose Confidential
Information to any third party (except our third party service providers), and
(iv) limit access to Confidential Information to its employees, contractors,
advisors and agents. Upon notice to the Discloser, the Receiver may disclose
Confidential Information if required to do so under any federal, state, or
local law, statute, rule or regulation, subpoena or legal process.
5. Publicity. You
grant us the right to add your name and company logo to our customer list and
website.
6. Indemnification. You
will indemnify, defend and hold us harmless, at your expense, against any
third-party claim, suit, action, or proceeding (each, an "Action")
brought against us (and our officers, directors, employees, agents, service
providers, licensors, and affiliates) by a third party not affiliated with us
to the extent that such Action is based upon or arises out of (a) unauthorized
or illegal use of the Subscription Service by you, (b) your noncompliance with
or breach of this Agreement, (c) your use of Third-Party Products, or (d) the
unauthorized use of the Subscription Service by any other person using your
User information. We will: notify you in writing within thirty (30) days of our
becoming aware of any such claim; give you sole control of the defense or
settlement of such a claim; and provide you (at your expense) with any and all
information and assistance reasonably requested by you to handle the defense or
settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an
admission; or (iii) imposes liability not covered by these indemnifications or
places restrictions on us without our prior written consent.
7.
Disclaimers;
Limitations of Liability
a.
Disclaimer of
Warranties.
WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS
OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS,
SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE
SUBSCRIPTION SERVICE, SERVICEWORKS CONTENT, OR THE CONSULTING SERVICES FOR ANY
PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL
TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, SERVICEWORKS
CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY
OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY
KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION
SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND
NON-INFRINGEMENT.
b. No Indirect Damages. TO
THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS,
REVENUE, DATA OR BUSINESS OPPORTUNITIES; PROVIDED THAT, THIS LIMITATION SHALL
NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
c.
Limitation of
Liability.
EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR
LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION,
AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF,
NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED
TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE
THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE
THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE
SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE
TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU
ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY
LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES,
THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
d.
Third Party
Products.
WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY
PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER
THIS AGREEMENT.
e.
Agreement to
Liability Limit.
YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT
TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE
TO YOU.
8. Miscellaneous
a.
Amendment; No
Waiver.
We may update and change any part or all of these Customer
Terms of Service, including the fees and charges associated with the use of the
Subscription Service (but, your fees and charges won’t change during the
Subscription Term except as we explain in the ‘Fees and Payments’ section
above.) If we update or change these Customer Terms of Service, the updated
Customer Terms of Service will be posted at
and we will let you know via email or in-app notification.
The updated Customer Terms of Service will become effective and binding on the
next business day after it is posted. When we change these Customer Terms of
Service, the "Last Modified" date above will be updated to reflect
the date of the most recent version. If you would like to receive an email
notification when we update the Customer Terms of Service, complete the form
found at
https://Service.Works/subscribe-tos-updates
. For the Product Disclosures page, if we make updates
or changes, we will provide notice of those changes at our discretion. The
updated Product Disclosures page will be effective upon posting. We encourage
you to review these Customer Terms of Service periodically.
If you do not agree with a
modification to the Customer Terms of Service, you must notify us in writing
within thirty (30) days after receiving notice of modification. If you give us
this notice, your subscription will continue to be governed by the terms and
conditions of the Customer Terms of Service prior to modification for the
remainder of your current term. Upon renewal, the Customer Terms of Service
published by us on our website will apply.
No delay in exercising any
right or remedy or failure to object will be a waiver of such right or remedy
or any other right or remedy. A waiver on one occasion will not be a waiver of
any right or remedy on any future occasion.
b. Force Majeure. Neither
party will be responsible for failure or delay of performance if caused by: an
act of war, hostility, or sabotage; act of God; electrical, internet, or
telecommunication outage that is not caused by the obligated party; government
restrictions; or other event outside the reasonable control of the obligated
party. Each party will use reasonable efforts to mitigate the effect of a force
majeure event.
c. Actions Permitted. Except
for actions for nonpayment or breach of a party’s proprietary rights, no
action, regardless of form, arising out of or relating to this Agreement may be
brought by either party more than one (1) year after the cause of action has
accrued.
d.
Relationship of the
Parties.
You and we agree that no joint venture, partnership,
employment, or agency relationship exists between us.
e.
Compliance with
Laws.
We will comply with all U.S. state and federal laws (where
applicable) in our provision of the Subscription Service, the Consulting
Services and our processing of Customer Data. We
reserve the
right at all times
to disclose any information as necessary to satisfy
any law, regulation, legal process or governmental request. You will comply
with all laws in your use of the Subscription Service and Consulting Services,
including any applicable export laws. You must comply with all applicable
laws related to the recording of phone calls and ensure all proper consent to
record is obtained prior to making any such recording. You will comply with the
sanctions programs administered by the Office of Foreign Assets Control (OFAC)
of the U.S. Department of the Treasury. You will not directly or indirectly
export, re-export, or transfer the Subscription Service or Consulting Services
to prohibited countries or individuals or permit use of the Subscription Service
or Consulting Services by prohibited countries or individuals.
f. Severability. If
any part of this Agreement or an Order Form is determined to be invalid or
unenforceable by applicable law, then the invalid or unenforceable provision
will be deemed superseded by a valid, enforceable provision that most closely
matches the intent of the original provision and the remainder of this
Agreement will continue in effect.
g. Notices. Notice
will be sent to the contact address set forth herein and will be deemed
delivered as of the date of actual receipt.
To you: your address as
provided in our ServiceWorks Subscription account information for you. We may
give electronic notices by general notice via the Subscription Service and may
give electronic notices specific to you by email to your e-mail address(es) on
record in our account information for you or through the notifications center
of the Subscription Service. We may give notice to you by telephone calls to
the telephone numbers on record in our account information for you. You must
keep all of your account information current.
h. Entire Agreement. This
Agreement (including each Order), along with our Privacy Policy found here),
Product Privacy Policy, and AUP, is the entire agreement between us for the
Subscription Service and Consulting Services and supersedes all other proposals
and agreements, whether electronic, oral or written, between us. We object to
and reject any additional or different terms proposed by you, including those
contained in your purchase order, acceptance or website. Our obligations are
not contingent on the delivery of any future functionality or features of the
Subscription Service or dependent on any oral or written public comments made
by us regarding future functionality or features of the Subscription Service.
We might make versions of this Agreement available in languages other than
English. If we do, the English version of this Agreement will govern our
relationship and the translated version is provided for convenience only and
will not be interpreted to modify the English version of this Agreement.
. Assignment. You
will not assign or transfer this Agreement, including any assignment or
transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law,
without our prior written consent, which will not be unreasonably withheld. We
may assign this Agreement to any affiliate or in the event of merger,
reorganization, sale of all or substantially all of
our assets, change of control or operation of law.
j.
No Third Party Beneficiaries.
Nothing in this Agreement,
express or implied, is intended to or shall confer upon any
third
party
person or entity any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
k.
Contract for
Services.
This Agreement is a contract for the provision of services
and not a contract for the sale of goods. The provisions of the Uniform
Commercial Code (UCC), the Uniform Computer Information Transaction Act
(UCITA), or any substantially similar legislation as may be enacted, shall not
apply to this Agreement. If you are located outside of the territory of the
United States, the parties agree that the United Nations Convention on
Contracts for the International Sale of Goods shall not govern this Agreement
or the rights and obligations of the parties under this Agreement.
l. Authority. Each
party represents and warrants to the other that it has full power and authority
to enter into this Agreement and that it is binding upon such party and
enforceable in accordance with its terms.
m. Survival. The
following sections shall survive the expiration or termination of this Agreement:
'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No
Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for
Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’,
‘Suspension and Termination of Free Services’, ‘Effect of Termination or
Expiration’, ‘Retrieval of Customer Data’, ‘ServiceWorks’s
Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’,
‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and
‘Contracting Entity and Applicable Law’. Additionally,
the ‘Alpha/Beta Services’ section of the Product Disclosures page and
the ‘Crowdsourced Data’ section of our Product Privacy Policy shall
survive expiration or termination of this Agreement.
n. Precedence. In
the event of a conflict between the terms of the Customer Terms of Service and
an Order, the terms of the Order shall control, but only as to that Order.D. GENERAL LEGAL TERMS