Terms of Service
Welcome to Workyard! Please carefully review these “Terms of Service” (or “Terms”) as they contain important information about your legal rights, remedies and obligations.  When these Terms of Service mention “Workyard,” “we,” “us” or “our,” it refers to Workyard Holdings, Inc. including its subsidiaries and affiliates.
These Terms of Service constitute a legally binding agreement between you and Workyard governing your access to and use of our end-to-end cloud-based technology solution that provides access to Workyard’s “Business Productivity Software” and its various applications through web browsers, desktop clients and mobile apps  (“SaaS Services”).  Your access to and use of the SaaS Services include your downloading, installing or using our Business Productivity Software and any associated software, APIs or apps supplied by Workyard, including any for which the purpose is to enable you to use the Business Productivity Software and any related “Workyard Materials” (as defined below) (collectively, “SaaS Services”).  These Terms also govern your access to and use of our websites and other related software and applications (collectively, with the SaaS Services, the "Services”).
When these Terms mention “you” or “your,” it refers to you as a “Customer” of our SaaS Services, in the capacity of an individual “End User” (in such case you are a Representative (defined below) of the Organization) or a company customer (the “Organization,”) or as a “Visitor” of our company website currently located at www.workyard.com.
When these Terms mention “Organization,” it means the inclusion of such Organization’s “Representatives” which means the Organization and its affiliates’ and each such party’s officers, directors, “Personnel” (which means such party’s employees, independent contractors, consultants, subcontractors, vendors, suppliers, agents and any other authorized representatives), legal advisors and any other authorized consultants, advisors or representatives. Â
Your access to and use of the Services are also governed by: (i) the terms set forth in an invoice (if applicable) and/or online sign-up flows, only if for the SaaS Services, (ii) any additional terms from third-party providers described below or applicable to certain programs or services in which you may elect to participate (“Additional  Terms”), and (iii) any other policies applicable to your use of the SaaS Services that we make available, each of which is incorporated by reference into and made a part of these Terms of Service.
In addition, any information we collect through your use of the Services, whether as an Organization, End User or Visitor, is subject to our “Privacy Policy,” which is located at https://www.workyard.com/privacy and also governs your use of the Services.  The Privacy Policy, together with these Terms are collectively referred to as the "Agreement." Â
As an End User or Visitor, you will also be governed by the “End User License Agreement” (or “EULA”) which is located at https://www.workyard.com/eula
All references to “Party” or “Parties” means you or us or both you and us.  All capitalized terms not defined in these Terms are defined in our Privacy Policy. Â
IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICES.
1. General Rules
As a condition of your use of our Services, you acknowledge and agree that:
â—Ź As an individual End User or Visitor, you are 18 years of age or older, or if other applicable Laws require you to be older in order to use our Services, then you are the older age under such applicable Law.
â—Ź You are able to create a binding legal obligation on behalf of yourself and/or your company and/or employer.
â—Ź You are responsible for all content you provide and of your activities in your Account or when using our Services.
â—Ź You will use our Services in compliance with all applicable Laws.
â—Ź You will not use our Services to solicit the performance of any activity which infringes or violates our rights or the rights of others.
â—Ź You will not use our Services to upload, transmit, or otherwise distribute any objectionable or infringing content, as solely determined by us.
â—Ź You may only use the Services using your valid Account established and maintained by you and in accordance with the Agreement.
2. Changes to The Terms
These Terms are subject to occasional revision, and if we make any substantive changes, we may notify you by sending you an email to the last email address you provided to us or by prominently posting a notice of the changes within our Services and/or within these Terms. Â Your continued use of our Services following notice of any changes to our Terms or Privacy Policy, or any Additional Terms or other policies or guidelines, constitutes your acceptance of all such changes.
3. Scope of SAAS Services
SaaS Services. Â To access the SaaS Services, you must complete an online sign-up flow, which identifies the SaaS Services and/or subscription plan you selected, additional subscription terms and the fees payable by you to Workyard for such Services. Â You are only entitled to use the SaaS Services for which you have completed an Order Form and paid, and your use of the SaaS Services is subject to your compliance with these Terms of Service. We reserve the right to modify such Services (or any part thereof) from time to time and we are not liable to you or to any third party for any modification of such Services.
Customer Support. We will use commercially reasonable efforts to provide complimentary technical support services to you and your End Users. Â Our standard support is available Monday through Friday from 9:00 a.m. to 5:00 p.m. Central Time, excluding major federal holidays. You may contact customer support: (1) via in-app chat support, (2) by emailing us at help@workyard.com or (3) by calling us at the phone number published on our website.
Training. We also have available to you and your End Users an online 24/7 knowledge base as part of the SaaS Services at no additional charge.
4. Your Account
4.1 In order to use the SaaS Services, you may register for an account (“Account”).  If you are an individual End User, then you may only create and hold one Account on the Service for your personal use.  As an organization, you may assign the seats you purchased in your subscription plan to designated End Users.  Since your subscription will be tied to certain or specific End Users, those seats must be used only by or for the designated End Users and cannot be shared or used by any other users or by more than the number of designated End Users.  Such specific use and access, however, may be re-assigned (as instructed by Workyard) to new End Users replacing former End Users who are no longer using the SaaS Services.
4.2 You are responsible for: (a) submitting truthful and accurate registration information; (b) updating and correcting any information you submitted to create or maintain your Account; (c) maintain the accuracy of all such information submitting; and (d) maintaining the confidentiality of your Account and login information.
4.3 You are solely responsible for all activities and acts or omissions that occur under your Account, regardless of whether by such activities originated from you or another party.  You acknowledge and agree that Workyard (including its Representatives) is not responsible or liable in any way for any unauthorized access to your Account, lost or stolen Account information, etc. if such loss is not caused by Workyard’s (or its Representatives’) acts or omissions in violation of the Agreement.
4.4 Your Account is solely for your specific individual use and is non-transferable. Â You cannot sell, transfer, combine, sublicense or otherwise share your Account with any other party.
5. Payment Options
“Order Form” means the online page or pages, including the Pricing Page, or other ordering document acceptable to Workyard under these Terms, issued by Workyard and accepted by Workyard, specifying the Fees you owe to Workyard in exchange for the SaaS Services that Workyard will provide to you under these Terms.
“Subscription Period” means the duration of the subscription plan you choose, including but not limited to the Monthly Plan or the Annual Plan (each as described below), beginning on the date you register and pay for such subscription plan and continuing for the applicable one- or twelve-month period.  If your subscription plan automatically renews (as described below), then the Subscription Period will also include any renewal periods.
5.1 End User Plans
Workyard offers various subscription plans for its SaaS Services.
(a) Free Trial. The free trial offer entitles new customers a fourteen (14) calendar day “Free Trial Period” of the SaaS Services, enabling you as an organization and any of your Personnel, meaning any individual, to use the SaaS Services.  Each individual becomes an “active end user” of the SaaS Services (aka “End User”) once such individual registers for the SaaS Services. Â
(b) Monthly Plan.  If, after the Free Trial Period, you choose to continue using the SaaS Services on a month-to-month basis (“Monthly Plan”), then a valid credit card will be required for you to pay each month in advance.  We will bill you for the SaaS Services based on your current number of active End Users, which is first the total number from the Free Trial Period and then from the month immediately preceding your advance payment.  If the total number of active End Users increases or decreases throughout the month you have paid for in advance, an adjustment will be applied on a pro-rata basis to your next monthly bill.
(c) Annual Plan.  If, after the Free Trial Period, you choose to continue using the SaaS Services on a yearly basis (“Annual Plan”), then a valid credit card will be required for you to pay for an Annual Plan in advance.  You will, at such time, need to prepurchase a total number of seats you expect to provide for your total active End Users.  You may, after your subscription begins, add active End Users to your Account.  If, however, your actual total number of active End Users, in any given month during the Term, exceeds the total number of seats you pre-purchased when signing up for the Annual Plan, you will be charged an “Overage Fee” the following month for the additional End Users.  This Overage Fee will be calculated at the standard monthly rate for each additional End User on a pro-rata basis.  Seats pre-purchased on the Annual Plan can be transferred from terminated team members (e.g., individuals who are no longer on your projects) to new team members (e.g., individuals who are new to your projects and then become new End Users) by simply disabling the terminated team member and inviting the new team member within your Account.
5.2 Smart Forms
(a) Workyard offers customers the option to purchase a preset number of forms per month (“Smart Forms”), which will be automatically billed monthly or annually at the then-published Fee amounts on our Order Form.
(b) To purchase Smart Forms, you may need to have an active Monthly Plan or Annual Plan for our Services, but we reserve the right to change this requirement without notice to you and in our sole discretion, and we may change it on a per-customer basis.
(c) If you submit more forms than your purchased number of Smart Forms, you will be charged for each additional form in excess of the preset purchased number, in accordance with the Fees detailed in the Order Form. This overage fee will be applied to your next monthly billing.
(d) Smart Forms are not refundable and unused Smart Forms do not roll over to the next billing month.
(e) Smart Forms are not legal tender or currency; are not redeemable or exchangeable for any sum of money or monetary value; have no equivalent value in fiat currency; do not act as a substitute for fiat currency; and do not constitute or confer upon you any personal property right. Smart Forms are non-transferable and may be used only in connection with the applicable Services.
(f) We prohibit and do not recognize any purported transfers, sales, gifts, or trades of Smart Forms. Evidence of any attempt to use, sell, or transfer Smart Forms in any manner violates these Terms and may result in revocation, termination, or cancellation of your Smart Forms and/or your use of the Services without refund and/or immediate suspension or termination of your account.
(g) You are solely responsible for verifying that the proper number of Smart Forms has been added to or deducted from your account. Your Smart Forms balance is not a bank account, digital wallet, stored value account, or other payment device.
5.3 Â Payment and Fee Policies
(a) When you complete an Order Form to access our Services, you authorize us to charge you the “Fees” detailed in the Order Form for your use of the SaaS Services at the then-current published Fee amounts. All such Fees must be paid in U.S. currency and are exclusive of any other charges you may incur in connection with such use, such as taxes, duties, and possible transaction fees.  You acknowledge and agree that, depending on the tax regulations governing the state in which you are located, we may also charge you for state sales tax; therefore, in order for you to use the SaaS Services, you authorize us to charge you for the Fees plus any such sales tax when you purchase a subscription to the SaaS Services.
(b) Following the expiration of your selected subscription plan, such subscription plan will automatically renew unless you cancel your subscription plan prior to the expiration date. This means that your original Subscription Period will extend to include one or more renewal periods if your subscription plan automatically renews.  You expressly authorize Workyard to charge you for each automatic renewal until you timely cancel your subscription plan. We do not provide refunds or credits for any partial subscription periods unless otherwise specified in these Terms. This means that if you cancel in the middle of your monthly or annual subscription, you will not receive a prorated refund or credit. (See related terms in Section 15.1 about the “Term” of this Agreement.)
(c) All Fees (including any applicable sales tax) are non-refundable. Â There are no refunds or credits for any changes to your Account, to the number of seats you originally purchased as part of your plan, or for any unused or expired Smart Forms.
(d) Any late payment of Fees (if applicable) will be subject to all costs of collection (including reasonable legal fees) and will bear interest at the rate of one and one-half percent (1.5%) per month or at the maximum rate permitted by law, whichever is less. Â If you are delinquent on a payment of Fees for fourteen (14) calendar days or more, Workyard may suspend access to the SaaS Services or terminate your account.
(e) Complaints or disputes concerning invoices must be made in writing within thirty (30) calendar days from the date of the invoice; otherwise, such invoices are deemed final and forever barred from dispute.
(f) We reserve the right to change our Fees for any of our Services upon fourteen (14) calendar days’ notice, which may be provided by posting the changes on the Order Form, within the Service, or via email to you.
5.4 Payment Processors.  Workyard may choose to utilize the services of third-party payment processors (“Payment Processors”) to handle Customer’s payment of Fees for certain Services, and in such cases, Workyard does not store Customer’s payment method information and any related information.  Such Processors may require Customer to store credit card or Confidential Information.  Workyard makes no warranties or representation with respect to any Payment Processor and their ability to safeguard any Customer Data or Customer Confidential Information.  Customer is solely responsible for reviewing and complying with any applicable Payment Processor’s terms of use and privacy policy prior to using their payment processing services.
6. Licenses And Use Restrictions
6.1 SaaS Services License.  Subject to and conditioned on Customer's payment of all Fees, and compliance with the terms of this Agreement, Workyard grants to Customer (including its Personnel and End Users), during the Term, a worldwide, non-exclusive, non-transferable subscription license to use the SaaS Services, which means the Business Productivity Software and any related Workyard Materials, solely for Customer’s internal business purposes and only in accordance with the terms of this Agreement.
6.2 Workyard Property License.  Subject to Customer's compliance with the terms of this Agreement, Workyard grants to Visitor, during the Term, a worldwide, non-exclusive, non-transferable license to use the Workyard Property available to the public on the Workyard website, solely for Customer’s internal business purposes and only in accordance with the terms of this Agreement.
6.3 Customer License. Customer grants to Workyard (including its Personnel and other applicable Representatives), during the Term and as necessary and appropriate for Workyard to fulfill its duties and obligations under this Agreement, a worldwide, non-exclusive, royalty-free, perpetual, transferable and sublicensable license to: (a) process any and all “Customer Data” (as defined below), which includes without limitation the license to use, distribute, reproduce, display, publish, make derivative works of, etc. for the purpose of performing its duties and obligations under this Agreement; and (b) to use and display Customer’s trade name, trademarks, logos and all related marks and branding graphics (collectively, “Customer Trademarks”) for purposes of providing the Services or as permitted in this Agreement.
6.4 Restrictions. Â All rights in the Workyard Property and any other rights not expressly granted to Customer under this Agreement are specifically reserved by Workyard. Â Except as otherwise specified in this Agreement, End Users and Visitors shall not engage in any of the following acts, and as an organization, shall not permit End Users or any other Representatives to engage in any of the following acts pertaining to the Workyard Property (whether such acts apply to the Business Productivity Software, or all or a portion of the Workyard Property):
(a) make the Workyard Property available to any individual or entity other than authorized End Users or applicable Visitors;
(b) offer to sell, sell, resell, rent or lease the Workyard Property;
(c) attempt to, directly or indirectly, gain or give unauthorized access to the Workyard Property;
(d) directly or indirectly access, or attempt to directly or indirectly access, the Workyard Property in order to (1) build a competitive product or service that is the same or similar, in whole or in part, or (2) copy any features, functions or graphics of the Workyard Property, in whole or in part;
(e) access and/or engage in any use of the Workyard Property in a manner that abuses or materially disrupts Workyard or the property or systems of Workyard’s service providers;
(f) interfere with or disrupt the integrity or performance of the Workyard Property;
(g) modify, distribute, prepare derivative works of, copy, frame, mirror, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code, in whole or in part, used in connection with the Workyard Property; or
(h) use the Workyard Property for fraudulent purposes or otherwise in violation of applicable “Law” (which means any statute, law, regulation, rule, code, order, common law, judgment or other requirement of any federal, state, local or foreign government, arbitrator, court or tribunal of competent jurisdiction).
7. Customer Data
7.1 The SaaS Services will enable you and your End Users to enter certain information, content and data (collectively, “Customer Data” with such term including “End User Data” which is data and content entered by your End Users).  Data and analytics resulting from or relating to your and your End Users’ use of the SaaS Services, and consisting of aggregated and anonymized Customer Data is referred to in these Terms as “Resultant Data.”
7.2 Workyard is not a messaging or data storage service. Â You acknowledge and agree that you are responsible for any lost or unrecoverable Customer Data. Â Workyard is not responsible for any of your Customer Data that you or your End Users submit through the SaaS Services.
7.3 Content Restrictions. You agree not to use, nor permit any of your Representatives or End Users or any other third party to use, the Services to upload, post, distribute, link to, publish, reproduce, engage in, promote or transmit any of the following:
(a) Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that is excessively violent, incites or threatens violence, encourages “flaming” others or criminal or civil liability under any local, state, federal or foreign law;
(b) Content that would impersonate someone else or falsely represent your identity or qualifications, or that may constitute a breach of any individual’s privacy; is illegally unfair or deceptive, or creates a safety or health risk to an individual or the public;
(c) Investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or spamming or flooding;
(d) Virus, Trojan horse, worm or other disruptive or harmful software or content; and
(e) Content that you do not own or have the right to use without permission from the intellectual property rights owners thereof.
7.4 EXCEPT AS MUTUALLY AGREED UPON IN WRITING BY THE PARTIES, YOU AGREE NOT TO (AND YOU AGREE TO CAUSE YOUR END USERS NOT TO) USE THE SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION (as defined below).  WORKYARD SHALL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR OR YOUR END USERS’ USE OF THE SERVICES TO COLLECT MANAGE SENSITIVE INFORMATION.
7.5 “Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as, but not limited to, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.
8. Workyard and Customer Property
8.1 Workyard Property.  All right, title and interest (including without limitation all Intellectual Property Rights and all other proprietary and related rights) in and to the Workyard Materials, Workyard’s Confidential Information, Deliverables, Resultant Data, Feedback, Workyard names, trademarks and logos, Trade Secrets, any information (including marketing and promotional materials) related to Workyard and its business, and all other information, materials, program files, deliverables, technology and the like, in any form or medium and that is owned or licensed by Workyard and/or its licensors and provided to Customer, or any of its Representatives, clients, End Users, suppliers, partners, agents, or Affiliates, or any other third parties doing business in any way with Customer, are owned solely by Workyard and/or its licensors (collectively, “Workyard Property”). Â
8.2 Customer acknowledges and agrees that, except for the “Customer Property”: (a) it has no ownership rights of any kind and agrees not to challenge Workyard’s rights in the Workyard Property, even to the extent such Workyard Property includes usage information, Feedback or Resultant Data created as a result of Customer; and (b) it has no rights of any kind with respect to the same except as are specifically granted by Workyard in this Agreement.
8.3 Customer Property. All right, title and interest (including without limitation all Intellectual Property Rights and all other proprietary and related rights) in and to the Customer Data, Customer’s Confidential Information, Customer names, trademarks and logos, Customer’s Trade Secrets, Customer Applications, Third-Party Content, any information (including marketing and promotional materials) related to Customer and its business, and all other information, materials, program files, deliverables, technology and the like, in any form or medium and that is owned or licensed by Customer and/or its licensors and provided to Workyard or submitted through the Business Productivity Software are owned solely by Customer, End Users, Representatives and/or its licensors (collectively, “Customer Property”).  Except as otherwise specified in this Agreement, Workyard has no right, title, interest, license or authorization with respect to any of the Customer Property. Â
8.4 Feedback. Any feedback, suggestions, ideas, questions, or other comments regarding the Services or Workyard Materials provided by Customer to Workyard (“Feedback”) are the sole property of Workyard.  To the extent Customer owns any rights in the Feedback, Customer assigns to Workyard of all of Customer’s right, title, and interest in and to the Feedback.
9. Customer Obligations And Acknowledgements ‍
9.1 You, as an organization, acknowledges and agrees that such organization shall require all End Users using the SaaS Services to be bound by and comply with the terms of this Agreement, including agreeing to Workyard’s online “End User License Agreement” and “Privacy Policy” that govern such End User’s use of the Services.  As an individual End User or Visitor, you must agree to Workyard’s online “End User License Agreement” and “Privacy Policy.”  Such online agreement may be accomplished with the End User or Visitor (if applicable) clicking “I Agree” to the End User License Agreement and Privacy Policy prior to obtaining access to the applicable Services.
9.2 Responsibility of End Users.  You, as an organization, shall remain solely responsible and liable for each End User’s compliance with and performance of all End User duties and obligations under these Terms.  You must provide all required and appropriate warnings, information and disclosures to your End Users, including the rules in Section 7 regarding Customer Data.
9.3 Your System Set-Up. Â You are solely responsible for determining the appropriate set-up and configuration of the Services. Â If you request us to assist you in the set-up or configuration of the Services, we make no representations or warranties with respect to any changes we may make or work we may perform on your behalf and at your request.
9.4 Data Acknowledgement. You agree and acknowledge that you shall be fully responsible to validate the accuracy of all Customer Data processed by and any resulting data produced (as a result of Customer Data) by the SaaS Services when used by you for your payroll, billing or any other purposes.
9.5 Calculations. Certain features of the SaaS Services, including multiplying hours tracked by a monetary figure supplied by you, are provided for your convenience and your reference only. Â You acknowledge and agree that such features do not and will not reflect the actual calculation of any payment payable by you to any person or entity and can never be relied on as such and are not warranted or guaranteed by Workyard to be a payroll calculation or any other payment calculation.
9.6 Conflicts. Â As either an End User or an organization, you, and not Workyard, shall be solely responsible and liable for any problems, issues or mistakes (including any claims or conflicts between you and the organization, another End User or other Representative) that arise from use of the SaaS Â Service, any Customer Data inputted or processed, or any other Customer Property, including without limitation any disclosure, modification, deletion or loss of any Customer Data, or any other Customer Property, on account of Customer Systems or any acts or omissions of an End User or other Representative (including any devices, systems or software used by a particular End User or Representative in connection with the SaaS Services).
9.7 Compliance with Laws. You, and not Workyard, shall be solely responsible for your compliance with all applicable Laws (including data protection, state and federal labor laws and reporting) pertaining to: (a) your use of the SaaS Services and any other Workyard Property; and (b) the processing of all Customer Data through the Services. Â You shall hold Workyard harmless, defend and indemnify Workyard from any and all payroll, tax and labor compliance liabilities in accordance with the indemnification section below.
9.8 Workyard is not obligated to perform any other terms of the Agreement if Customer fails to comply with this Section 9 and may terminate the Agreement or suspend the Services upon written notice to Customer.
10. Unauthorized Access
You acknowledge and agree that you will not allow any unauthorized access to or use of the Business Productivity Software, the SaaS Services, your Account or any other parts of the Workyard Property. Â As an organization, you will ensure that only authorized Representatives and End Users have access to and can use your Account for the SaaS Services. Â You agree to immediately notify us of any actual or suspected unauthorized use of your Account or any other breach of security, including the loss or stealing of your Account or login information. Â You will, and will cause your End Users and any other Representatives to, immediately: (a) take all reasonable and lawful measures within your/their respective control necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the SaaS Services, your Account and any other Workyard Property); and (b) immediately notify Workyard (via email and by telephone) of any such activity.
11. Customer System Obligations
11.1 Customer has and will, at all times during the Term, employs (and retains sole responsibility for) all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to:
(a) control the content and use of all Customer Data and any other information, instructions and materials provided  by or on behalf of Customer or by any of its End Users, other Representatives, Customer’s clients or such client’s Representatives, regardless of whether Customer has direct knowledge of such party’s use (collectively, “Customer Party(ies)”);
(b) secure Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems");
(c) maintain and operate such Customer Systems in accordance with the applicable Documentation and any other applicable information, or in accordance with industry standards if no Documentation or other information available, for purposes of using the Services;
(d) securely administer the distribution and use of all Customer's login credentials and protect against any unauthorized access to such credentials; and
(e) ensure and monitor all access to and use of the Services and Workyard Property by any Customer Party directly or indirectly by or through the Customer Systems.
11.2 Customer shall and will retain, at all times during the Term, sole control and responsibility over:
(a) the operation, maintenance and management of, and all access to and use of, the Customer Systems by Customer and any Customer Parties; Â
(b) for all access to and use of the SaaS Services and Workyard Materials by any Customer Party by or through the Customer Systems or any other means controlled by Customer. Â Such control and responsibility obligations include those over:
(i) any information, instructions or materials provided by any Customer Party;
(ii) results (including reports, information, statistics, calculations and the like) obtained from any use of the SaaS Services or Workyard Materials or processing of Customer Data; and
(iii) conclusions, decisions or actions based on such use of the SaaS Services and Workyard Materials.
11.3 Customer Applications, Third-Party Content and Customer Data. Â Customer Applications and other Third-Party Content obtained or licensed by Customer directly from third parties (and not provided or created by Workyard), such as software applications Customer authorized third parties to provide, may be included within the Customer Data or operate within or in connection with the Customer Data or the Business Productivity Software, any of which may be subject to separate terms and conditions, including separate fees and charges. Â
(a) Except as specified in this Agreement, Customer’s use of any Customer Applications, Third-Party Content and Customer Data is at Customer’s sole risk and Workyard shall have no obligations or liability with respect to such use or risks. Â
(b) Except as specified in this Agreement, Customer, and not Workyard, shall be solely responsible for any problems or issues arising from use of any such Customer Applications, Customer Data or Third-Party Content, including without limitation any disclosure, modification, deletion or loss of any Customer Data on account of such Third-Party Content or any Customer Applications or any acts or omissions of an End User or other Representative.
12. Workyard Obligations
12.1 Workyard reserves the right, in its sole discretion, but is not obligated in any way, to make any changes to the SaaS Services, any of the other Services or Workyard Property, that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Workyard’s Services to its customers, (ii) the competitive strength of or market for Workyard's Services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.  Workyard may, in its sole discretion and as it deems appropriate, make available to Customer any updates to the SaaS Services and related Documentation that Workyard makes generally to its other similarly situated customers with similar implementations of the SaaS Services at no additional charge.
12.2 Workyard has and will retain sole control over the operation, provision, maintenance and management of the SaaS Services, all other Services and Workyard Property, including the: (a) location(s) where any of the Services are performed; (b) selection, deployment, modification and replacement of any software; and (c) performance of maintenance, upgrades, corrections and repairs of the SaaS Services.
12.3 Customer is solely responsible for the provision and use of all Customer Data, the Customer System, and any computer hardware and system connectivity as necessary for Customer and its End Users to use the Business Productivity Software via such HTTPS access.  Except as specified in this Agreement, Customer acknowledges and agrees that Workyard shall not be responsible or liable for the acts or omissions of the Hosting Provider if such acts or omissions pertain to the Hosting Provider’s duties and obligations.
13. Data Security
13.1 Personal Information and Data Breach Procedures. Workyard acknowledges that Customer Confidential Information may include Personal Information pertaining to residents of many different states and countries that most legislation or regulations have adopted statutes aimed at protecting individuals whose Personal Information is collected and/or maintained by entities such as Customer. Â Workyard shall make all reasonable efforts to comply with the requirements of all applicable Laws pertaining to the protection of such Personal Information. Â
13.2 In the event of any unauthorized access to, or use of or disclosure of, Personal Information stored in the SaaS Services or the Workyard System, Workyard shall: (i) report to Customer by email or telephone, such unauthorized access to, or use or disclosure of, Personal Information within seventy-two (72) hours of Workyard’s actual discovery or knowledge of such an event that pertains to Customer Data; (ii) mitigate, to the extent practicable, any harmful effect of such access to, or use or disclosure of, Personal Information that is known to Workyard; and (iii) cooperate with Customer in providing any notices to affected individuals and taking such other reasonable actions that Customer deems reasonably appropriate.
13.3 Protection of Customer Data. Workyard has implemented and will maintain an information security program, in accordance with industry standards, that includes reasonable and appropriate technical, administrative, and physical security measures designed to detect, prevent, and mitigate the risk of identity theft and protect against the destruction, loss, and unauthorized access, disclosure, use, or alteration of information in Workyard’s possession, including Customer Data.  This information security program is intended to reasonably meet the following objectives: (i) protect the security, integrity, and confidentiality of the Customer Data; and (ii) protect against any anticipated threats or hazards, or unauthorized access, to the security or integrity of the Customer Data.
13.4 Business Continuity; Disaster Recovery.  Workyard maintains a commercially reasonable business continuity and disaster recovery plan and, upon Customer’s written request, Workyard will make available a then-current executive summary of the business continuity and disaster recovery plan.
13.5 Backup.  The Workyard Systems are programmed to perform routine data backups at least daily. Third party cloud server providers as well as third-party database providers also back up at least daily and on a transactional basis. During the Retention Period, Workyard will make available to Customer its then most-current back-ups of Customer Data for download by Customer.  Workyard retains the daily back-ups for thirty (30) days (“Retention Period”).  In the event of any loss, destruction, damage or corruption of Customer Data caused by the Workyard Systems or Services, Workyard will, (as its sole obligation and liability and as Customer’s sole remedy) use commercially reasonable efforts to restore the Customer Data from Workyard's then most current backup of such Customer Data.  The Services do not replace the need for Customer to maintain regular data backups or redundant data archives.  Customer acknowledges and agrees that it is Customer’s responsibility to maintain regular data backups and redundant data archives.  EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WORKYARD HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER DATA.
14. Changes To The Services And Pricing
We reserve the right, at any time, to modify, update, suspend, or discontinue any or all of the Services with or without notice to you. Â You acknowledge and agree that we will not be liable to you or to any third party for any modification, updates, suspension, or discontinuation of the Services or any part thereof. Â Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to these Terms.
15. Term And Termination
15.1 The “Term” of this Agreement begins on the first day of your Free Trial Period, your Subscription Period, or the date of a completed Order Form, whichever earlier, and continues until the later of: (a) the date your subscription plan or Smart Forms expire or terminate (including any renewal periods); or (b) the last date that your last End User last uses the Services. Because these Terms remain in full force and effect while you use the Services, the Term of this Agreement may be longer than your Subscription Period if one of your End Users is still using the Services past the-then current Subscription Period of your subscription plan. For the avoidance of doubt, it is your sole responsibility as the Customer to be aware if this happens and to specifically cancel your subscription plan and instruct all of your End Users to stop using the Services upon the expiration or termination of your Subscription Period. (See related terms in Section 5 for details about your Subscription Period).
15.2 We may, without any liability to you whatsoever, suspend or terminate your rights to use the Services (including your Account) at any time for any reason in our sole discretion, including for any use of the Services in violation of these Terms. Â This means we have the right to revoke our consent to your use of the Services, the Business Productivity Software and/or any other permissions we previously granted to you. Â
15.3 Upon termination of your rights under this Agreement, your Account and right to access and use the Services will immediately terminate. Â
15.4 Survival. Â Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect (e.g., survive the termination of the Terms): Sections 8 and 17 through 27, and any other right or obligation of the Parties in this Agreement that, by its nature, sense and context are intended or should survive termination or expiration of this Agreement.
16. Copyright And Other Intellectual Property Infringement Claims
16.1 We take the protection of Intellectual Property seriously.  We respect the rights of others’ content and Intellectual Property, and we expect our End Users to do the same.  You agree not to copy, distribute, display or otherwise reproduce any of the Services or any information available through the Services without obtaining our prior written permission in each such instance.  we reserve the right (in our sole discretion) to terminate and/or disable the accounts of yours and any Users for materially or repeatedly infringing the intellectual property rights of ours, our suppliers and any other third parties in accordance with all applicable Laws.  Claims of copyright or other intellectual property infringement can be sent to our copyright agent at help@workyard.com.
16.2 Any claims of alleged copyright or other intellectual property infringement must include:‍
● Identification of the intellectual property works which are the subject of the claimed infringement.‍
● Identification of the claimed infringing activity, including the location within the applicable Services of the infringing copy.‍
● A statement with the signature of the person making the claim, which states that he/she is the owner, or authorized to act on behalf of the owner, of the infringed intellectual property, along with current contact information, which should include a mailing address, telephone number, and email address.‍
● A statement of a good faith belief that the subject use is not authorized by the intellectual property owner.‍
● A statement as follows: “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the intellectual property that is allegedly infringed.”
16.3 If a statement does not include all required elements, it will not be treated as actual notice under the U.S. Digital Millennium Copyright Act (17 U.S.C. §512), or other applicable U.S. intellectual property law.
16.4 Although U.S. law does not provide for a similar procedure for trademark infringement, we recommend that you send us similar information as described above regarding any allegation of trademark infringement, and we will address it as soon as practicable.
16.5 In the event we receive a claim, which substantially complies with the complaint requirements detailed above, we will remove the alleged infringing material from our Services and notify you that the material has been removed. You may provide us with a counter notice if you believe the claim is in error. If you are the subject of multiple claims, we may, in our sole discretion, terminate your account without further notice.
17. Confidentiality
17.1 Confidential Information.  Each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”).  “Confidential Information” means non-public information in any form or medium (whether oral, written, electronic or other) that could reasonably be considered to be confidential or proprietary, including, but not limited to, confidential knowledge, inventions, works, ideas, processes, formulas, source and object codes, data, programs, works of authorship, know-how, improvements, discoveries, developments, designs and techniques, information consisting of or relating to the Disclosing Party’s technology, Trade Secrets, know-how, business operations, plans, strategies, customers, vendors, licensors, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential,” and including information disclosed before the execution of this Agreement. Without limiting the foregoing, all Workyard Materials are the Confidential Information of Workyard and the financial terms and existence of this Agreement are the Confidential Information of the Parties. Customer shall not disclose Workyard Materials to any third party without Workyard’s prior written approval.
17.2 Confidentiality Obligations.  Each Party shall protect the Disclosing Party’s Confidential Information, using the same degree of care as it uses to protect its own confidential information, but no less than a reasonable degree of care.  Each Party shall use a similar degree of care to ensure that Confidential Information is not disclosed or distributed by its Personnel or any other Representatives in violation of this Agreement. Neither Party will sell, transfer, publish, disclose, or otherwise make available any portion of the Confidential Information of the other Party to third parties, except as necessary to perform its obligations under this Agreement or as expressly authorized in this Agreement.  Each Receiving Party shall disclose Confidential Information only to its Personnel or any other Representative who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 17; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 17.  Each Party shall cause its Representatives to comply with and be responsible for any of its Representatives’ non-compliance with the terms of this Section 17.  The Parties agree to hold each other’s Confidential Information in confidence during the Term of this Agreement and thereafter.
17.3 Non-Confidential Information.  Notwithstanding the above, Confidential Information of a Party will not include information which: (a) is, as of the time of its disclosure or thereafter becomes part of the public domain through no breach of this Agreement by the Receiving Party; (b) was rightfully known to the Receiving Party as of the time of its disclosure; (c) is independently developed by the Receiving Party; (d) is subsequently learned from a third party not known to the Receiving Party that the third party is under a confidentiality obligation to the Disclosing Party; or (e) is required to be disclosed pursuant to a duly authorized subpoena, court order, or government authority, whereupon the Receiving Party will provide prompt written notice to the Disclosing Party so that prior to such disclosure, the Disclosing Party may seek a protective order or other appropriate remedy, with Receiving Party’s reasonable efforts to help preserve the confidence of such Confidential Information as much as reasonably possible.
17.4 Duty to Notify and Mitigate. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information, whether known or suspected, and shall use all reasonable efforts to mitigate any harm that may be caused by such unauthorized use or disclosure and reasonably cooperate with the Disclosing Party in any efforts by the Disclosing Party to mitigate any harm that may be caused by such unauthorized use or disclosure.
18. Indemnification
18.1 Indemnification.  Each Party (as “Indemnitor”) agrees to indemnify, defend and hold harmless the other Party and its Representatives (collectively, as “Indemnitee”) from any claims, disputes, demands, liabilities, damages, losses and costs and expenses (including without limitation reasonable attorney’ fees and costs) or demand (“Claims”) made by third parties and any losses, costs and expenses (“Losses”) incurred by Indemnitee to the extent caused by, resulting from or arising out of or in connection with: (a) Indemnitor’s breach of its obligations under the Agreement; (b) Indemnitor’s violation of applicable Law in connection with its performance of the Agreement; (c) Indemnitor’s gross negligence, willful misconduct, fraud or fraudulent misrepresentations related to its performance of the Agreement; (d) the actions or inactions of Indemnitor’s Representatives related to subsections (a) through (c) in this Section 18.1; or (d) an allegation that Indemnitee’s use of some or all of Indemnitor’s property (Workyard Property for Workyard as Indemnitor and Customer Property for Customer as Indemnitor), in accordance with the terms of the Agreement, constitutes an infringement, misappropriation or unlawful use or disclosure of any intellectual property or Personal Information, or other privacy or proprietary rights of a third party.
18.2 Indemnification Procedure.  Each Party’s obligations as the Indemnitor are conditioned upon the Indemnitee completing the following: (a) giving Indemnitor prompt written notice of any claim, action, suit or proceeding for which the Indemnitee is seeking indemnity; (b) granting complete control of the defense and settlement to the Indemnitor; and (c) reasonably cooperating with the Indemnitor at Indemnitor’s expense. Notwithstanding anything to the contrary in this Section 18.2, any negotiations relative to the settlement of any such claim intended to bind the Indemnitee shall not be final without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed.  Indemnitee may participate in or observe the proceedings at its own cost and expense with counsel of its own choosing.  The Indemnitee’s failure to promptly notify the Indemnitor as to the existence of an indemnifiable Claim will not relieve the Indemnitor’s indemnification obligations under this Agreement, except to the extent that such failure or delay is prejudicial.
18.3 Mitigation. If any of the Workyard Property are, or in Workyard’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights, or if Customer's use of the Workyard Property is enjoined or threatened to be enjoined by a court of competent jurisdiction, Workyard may, in its sole discretion and its sole cost and expense: (a) obtain the right for Customer to continue to use the Workyard Property materially as contemplated by this Agreement; (b) modify or replace the Workyard Property, in whole or in part, to seek to make the Workyard Property (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Workyard Property, as applicable, under this Agreement; or (c) by providing thirty (30) day’s prior written notice to Customer, terminate this Agreement with respect to all or part of the Workyard Property, and require Customer to immediately cease any use of the affected Services or any specified part or feature thereof.  Accordingly, Customer will be entitled to a refund of any pre-paid Fees or Expenses attributable to the period of time after such termination.
18.4 Notwithstanding anything to the contrary in Sections 18.1 and 18.2, neither Party as Indemnitor shall be obligated to indemnify the Indemnitee as required if any Claim or Loss arises out of or relates to: (a) the negligent or culpable acts or omissions of Indemnitee; (b) any breach of this Agreement by Indemnitee to the extent such breach caused or created the Claim or Loss.
19. Representations And Warranties
19.1 Each Party represents and warrants that: (a) it has all necessary authority to enter into and perform its obligations hereunder without the consent of any third party or breach of any contract or agreement with any third party; (b) this Agreement, when executed and delivered, will be a legal, valid and binding obligation of such Party enforceable in accordance with the terms of this Agreement; (c) it will comply in all material respects with applicable Law related to its duties and obligations under this Agreement; (d) it will obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement; and (e) other than as specified in this Agreement, it will not make any representation, warranty, or other legally binding commitments on behalf of the other Party or any of its third party providers.
19.2 Customer represents and warrants that: (a) all Customer Data provided directly or indirectly by Customer, or its Representatives or End Users, can be used by Customer, its Representatives and any other authorized clients and third parties of Customer, and can be processed by Workyard and its Representatives in accordance with the terms of this Agreement while still in compliance with all applicable Laws; (b) Customer has or will have all necessary rights and consents (including the rights to grant the license in Section 6.3 (License to Workyard) in and relating to the Customer Data so that, as received by Workyard and processed in accordance with this Agreement, such Customer Data does not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any contractual, privacy, publicity or other rights of any third party or violate any applicable Law; (c) all Customer Data that Customer directly or indirectly collects is legal to collect (and Process through the Business Productivity Software) based on regulatory or legal requirements in the Customer country of origin and the subject party of such Customer Data (“Data Subject”) origin or location; (d) with respect to all Customer Data, each applicable Data Subject has given consent to Customer for the Processing of his/her/their personal data for one or more specific purposes established by Customer; and (e) neither Customer nor its Affiliates (if any) are in the business of, or in the development stages of, manufacturing or marketing programs or products that compete with Workyard or the Business Productivity Software.
20. Disclaimers
20.1 THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT.  WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.  IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE; OTHERWISE, THERE IS NO SUCH WARRANTY AVAILABLE.
20.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. Â SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. Â
20.3 WE DO NOT ENDORSE ANY SPECIFIC PRODUCTS, PROGRAMS, PROCEDURES, OPINIONS OR OTHER INFORMATION THAT MAY BE MENTIONED OR DESCRIBED THROUGH OUR SERVICES. Â IF YOU RELY ON ANY CONTENT OBTAINED BY YOU THROUGH THE SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK. Â WORKYARD ASSUMES NO RESPONSIBILITY FOR ANY ACT, OMISSION, ACTIVITY, PRODUCT OR SERVICE THROUGH INDIVIDUALS OR PROGRAMS PROVIDED THROUGH THE SERVICES.
21. Limitation of Liability
21.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WORKYARD BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Â ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
21.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR TOTAL, AGGREGATE LIABILITY FOR THE ENTIRE TERM OF THE AGREEMENT (INCLUDING FREE TRIAL, MONTHLY, YEARLY SUBSCRIPTIONS AND ANY RENEWALS, AND SMART FORMS) TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE AMOUNTS YOU HAVE PAID TO WORKYARD, IN THE IMMEDIATELY PRECEDING 12-MONTH PERIOD PRIOR TO THE CLAIM, FOR USE OF THE SERVICES, PROVIDED YOU DO NOT HAVE ANY THEN-EXISTING PAYMENT OBLIGATIONS TO WORKYARD. Â THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. Â
21.3 YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS SECTION 21 AND ANY OTHER RELEVANT TERMS IN THIS AGREEMENT.
21.4 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
21.5 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH IN THESE TERMS ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WORKYARD AND YOU. Â
22. California Resident Waiver
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”  YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
23. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, pandemics, epidemics, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control (collectively, “Force Majeure”).  We reserve the right (in our sole discretion) to terminate any or all Services to you or any of our Users due to any Force Majeure event.
24. Informal DIspute Procedure
Prior to formally filing any claim against Workyard or any of its Representatives (“Dispute”), Customer shall use good faith efforts to attempt to resolve such Dispute informally by submitting to Workyard a written notice of the Dispute describing the nature and basis of the Dispute and the requested relief (“Dispute Notice”).  Upon receiving such Dispute Notice, Workyard will use good faith efforts to resolve the Dispute informally by contacting Customer within thirty (30) days of such receipt.  If a Dispute is not resolved within ninety (90) days after the date of Workyard’s first contact with Customer, then either Party may bring a formal proceeding through the arbitration procedures as described in Section 25 below.
25. Arbitration
25.1 All “Arbitration Cases,” which means all claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) related to Customer’s use of the Services or the Agreement that cannot be resolved informally as required in this Agreement, shall be resolved by binding arbitration on an individual basis in accordance with this Section.  Except as specified in this Agreement, Workyard is not committed nor obligated to use an alternative dispute resolution entity to resolve disputes with Customer.  Unless otherwise agreed to in writing by both Parties, all arbitration proceedings shall be held in English.
25.2 U.S. Arbitration Rules.  If an Arbitration Case involves Customer that is based or residing in the U.S. or use of the subject Services occurred in the U.S., then arbitration shall be initiated through the “American Arbitration Association” (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this Schedule 4.  If AAA is not available to arbitrate, the Parties shall agree to select an alternative ADR Provider.  The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the terms of this Agreement.
25.3 International Arbitration Rules.  If an Arbitration Case involves Customer that is based or residing outside of the U.S. or the use of the subject Services occurred outside of the U.S., then arbitration shall be initiated through the “International Centre for Dispute Resolution” (“ICDR”), an established ADR Provider that offers arbitration as set forth in this Schedule 4.  If ICDR is not available to arbitrate, the Parties shall agree to select an alternative ADR Provider.  The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the terms of this Agreement.
25.4 The arbitration requirements for all Arbitration Cases shall apply to Customer and Workyard, and to any of either party’s Representatives, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized End Users or beneficiaries of Services provided under the Agreement.
25.5 The arbitration shall be conducted by a single, neutral arbitrator, unless the claim exceeds $100,000.00, in which case the arbitration shall be conducted by a panel of three arbitrators. Â All such arbitrators shall be or was an attorney and has professional experience in business productivity software (including workforce management). .
25.6 Within twenty (20) days after the commencement of arbitration, each Party shall select the applicable number of persons to serve as arbitrator. Â If the Parties cannot mutually agree in good faith (and in writing) to the selection of the arbitrator(s) within this 20-day period, the AAA or ICDR (whichever applicable) shall, at the written request of any Party, complete the appointments that have not been made.
25.7 The “Expedited Procedures” under the AAA or ICDR (whichever applicable) shall apply in any Arbitration Case in which no disclosed claim or counterclaim exceeds $100,000.00, not including interest or reasonable attorneys’ fees and arbitration costs.
25.8 Any claims or disputes where the total amount of the award sought is less than ten thousand U.S. dollars (US $10,000.00) may be resolved, under the AAA or ICDR (whichever applicable), through binding non-appearance-based arbitration, at the option of the Party seeking relief. Â Accordingly, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the Party initiating the arbitration. Â The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed in writing by both Parties.
25.9 For Arbitration Cases with the total amount of the award sought is ten thousand U.S. dollars (US $10,000.00) or more, the right to a hearing will be determined by the arbitration rules under the AAA or ICDR (whichever applicable).  Any hearing will be held in a location within 100 miles of Workyard’s principal place of business, unless the Parties agree otherwise in writing.  If Customer’s principal place of business is located outside of the U.S., the arbitrator shall give the Parties reasonable notice of the date, time and place of any oral hearings and whether virtual appearance or attendance by either Party is permitted.  Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction located within 100 miles of Workyard’s principal place of business.  Each Party shall bear its own costs (including attorneys’ fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider, unless the arbitrator determines Customer’s claim is frivolous, then Workyard will seek for Customer to cover Workyard’s reasonable attorneys’ fees and all fees and costs of the ADR Provider.
25.10 The amount of any settlement offer made by any Party may not be disclosed to the arbitrator in any Arbitration Case until after the arbitrator has determined the amount of the award, if any, to which either Party is entitled.
25.11 The award for an Arbitration Case shall be made within six (6) months of the filing of the notice of intention to arbitrate (demand), and the arbitrator(s) shall agree to comply with this schedule before accepting appointment. Â This time limit, however, may be extended by the arbitrator(s) for good cause shown, or by mutual written agreement of the Parties.
25.12 Notwithstanding anything to the contrary in this Agreement, the Parties agree that: (a) the award (as described in Section 25.11 may be appealed pursuant to the optional appellate arbitration rules under the AAA or ICDR, whichever applicable ("Appellate Rules"); (b) such award rendered by the arbitrator(s) shall, at a minimum, be a reasoned award; and (c) such award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired.  Appeals must be initiated within thirty (30) days of receipt of an award, as defined by the Appellate Rules, by filing a “Notice of Appeal” with any AAA or ICDR office (whichever applicable).  Following the appeal process, the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.
25.13 If arbitration is initiated in compliance with this Section, the arbitrator(s) will decide the rights and liabilities, if any, of Customer and Workyard, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. Â The arbitrator(s) shall have the authority to grant motions dispositive of all or part of any claim. Â The arbitrator(s) shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to the claimant under applicable Law, the AAA or ICDR rules (whichever applicable), and the terms of this Agreement. Â The arbitrator(s) shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. Â The arbitrator(s) has the same authority to award relief that a judge in a court of law would have. Â The award of the arbitrator(s) is binding upon Customer and Workyard as specified in this Section 25.
25.14 Confidentiality.  All aspects of the arbitration proceeding, including the award of the arbitrator and each Party’s compliance with such award, shall be strictly confidential, and the Parties shall maintain such confidentiality in accordance with Section 17 (Confidentiality Obligations) of the MSA.
25.15 Equitable Relief. Notwithstanding anything to the contrary in this Section 25, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. Â A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Section 25 or the Terms.
26. Miscellaneous Terms
26.1 Order of Precedence. Â In the event that the terms of the Privacy Policy, Additional Terms, EULA and any other Workyard Materials conflict with those terms in these Terms of Service, the order of precedence (with respect to the subject matter in conflict) will, unless otherwise expressly stated in these Terms only, be as follows: (a) Terms of Service, (b) Privacy Policy, (c) EULA, (d) Additional Terms, and (e) any other Workyard Materials.
26.2 Publicity. Workyard may publicize that the Customer, as an organization, is a customer by including such Customer’s name, trademarks or logos in Workyard’s marketing and promotional materials, including the website(s), mobile application(s) and other digital properties.  For any press releases or other public announcements related to this Agreement, Workyard will obtain Customer’s prior written consent, which shall not be unreasonably withheld or delayed.  Workyard’s use of Customer’s trademarks, names, logos, as permitted in this Section must be in accordance with Customer’s established guidelines, if any are provided by Customer.
26.3 Assignment.  Either Party may, upon written notice to the other Party, assign this Agreement in its entirety, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of the assigning Party’s assets.  Any other purported assignment shall be void and constitute a material breach of this Agreement.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
26.4 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
26.5 Equitable Relief.  Customer acknowledges and agrees that its obligations regarding non-competition, non-solicitation, Confidential Information and any intellectual property rights hereunder have a unique, very substantial and immeasurable value to Workyard, and breach of such obligations would cause irreparable harm and unascertainable damages to Workyard; entitling Workyard to injunctive relief and any other available remedies, including reasonable attorneys’ fees and costs, without posting a bond or security or proving any actual damages, and in addition to any monetary relief as may be recoverable by law.
26.6 Claims Not Subject to Arbitration. Notwithstanding anything to the contrary in Section 24 (Informal Dispute Procedure),  Section 25 (Arbitration) and Section 26.5 (Equitable Relief), claims (including those related to equitable relief below) of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of a Party’s patent, copyright, trademark or trade secrets (or any other intellectual property rights), Customer’s failure to pay any Fees under this Agreement or Customer’s material breach of this Agreement pertaining to Customer’s access to or use of the Services shall not be subject to the arbitration terms in Section 25, so long as the claimant has complied with Section 20.5 (Informal Dispute Procedure), except for equitable relief claims under Section 26.5.
26.7 Waiver of Class or Consolidated Actions. Â ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED (AS PERMITTED IN THIS AGREEMENT) ON AN INDIVIDUAL PERSON OR ORGANIZATION BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER, Â END USER OR VISITOR (WHETHER AN INDIVIDUAL OR AN ORGANIZATION) CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER, END USER OR VISITOR (WHETHER AN INDIVIDUAL OR ORGANIZATION).
26.8 Governing Law and Jurisdiction. The validity, construction and interpretation of the Agreement will be governed by the laws of the State of California, excluding its conflict of laws provisions, and will specifically not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable. Â Except for either Party seeking equitable relief under Section 26.5 in any court having jurisdiction, the Parties irrevocably consent to the jurisdiction and venue of the federal and state courts located in San Mateo County, California for the interpretation of and resolution of all disputes, initiated by either of the Parties or any other party, under this Agreement.
26.9 Time Limit.  Notwithstanding any to the contrary in this Agreement, except for those subject to Sections 26.6 (Claims Not Subject to Arbitration) or 26.5 (Equitable Relief), any claim or cause of action arising out of or related to Customer’s use of the Services must be filed within one (1) year after such claim or cause of action arose, or else such claim or cause of action will be barred forever.
26.10 Waiver of Jury Trial. When applicable under this Agreement, the Parties irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement. Â Further, in the event any litigation should arise between the Parties in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, both Parties and their Representatives waive all rights to a trial by jury, instead electing that the dispute be resolved by a judge.
26.11 Attorneys’ Fees.  Unless otherwise specified in Section 25 specifically for arbitration proceedings, the prevailing Party in any action related to the interpretation, performance or breach of any provision of this Agreement will be entitled to seek to be reimbursed for any and all reasonable attorneys’ fees, costs and expenses incurred in pursuing such remedy hereunder.
26.12 Notice Requirements. Except as otherwise specified in this Agreement including Section 27, all notices pertaining to any action related to the interpretation, disputed performance or breach of any provision of this Agreement must be in writing and must be sent via email and also delivered or sent by: (i) first class mail, registered or certified, return receipt requested, postage pre-paid; or (ii) express mail, or national express courier with a tracking system, to the addresses for each Party specified in this Agreement. Â All notices required under this Agreement will be deemed given on the day actually received by the Party to whom the notice is addressed, except receipt of emails will be deemed given based on the date that is automatically included in the email, provided such a day is a business day; otherwise, on the next business day after the email is sent. Â Notwithstanding anything to the contrary in this Section 26.12, we may but are not required to send to Customer any notices as described in subsections (i) and (ii) so long as we send such notices via email in accordance with this Section 26.12. Â For clarification, Customer must send to Workyard any notices subject to this Section 26.12 in accordance with all the terms in this Section 26.12.
26.13 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole.
26.14 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such provision shall be deleted and the remainder thereof shall remain in full force and effect. Â Upon such determination the Parties shall negotiate in good faith to substitute (to the greatest extent possible) the invalid or voidable provision with a valid provision most closely approximating the economic effect and intent of the invalid provision that was originally contemplated by the Parties.
26.15 Entire Agreement, Etc.  This Agreement embodies the entire agreement and understanding of the Parties and supersedes all prior or contemporaneous written or oral communications or agreements between the Parties regarding this Agreement.  No amendments or additions to this Agreement will be binding unless in writing and signed by both Parties.  Unless expressly provided in this Agreement, no remedy specified herein is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and in addition to every other right or remedy provided herein or available at law or in equity.  No delay or omission by either Party to exercise any right or power it has (in whole or in part) under this Agreement will be construed as a waiver of such right or power.  A waiver by either Party of any breach by the other Party will not be construed to be a waiver of any succeeding breach or any other covenant by the other Party.  All waivers must be in writing and signed by the Party waiving its rights.  This Agreement is for the sole benefit of the Parties under this Agreement and such Parties’ successors and permitted assigns, and nothing herein express or implied shall give or be construed to give any person or entity other than such Parties any legal or equitable rights hereunder.
27. Workyard Electronic Communications To You
The communications between you and Workyard use electronic means, whether you use the Services or send us emails, or whether we post notices on the Services or communicate with you via email. For contractual purposes, you (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
28. Contact Us
‍PLEASE CONTACT US AT help@workyard.com IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS.
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