WorkSpan User Agreement
Please read this User Agreement (the “Agreement”) carefully before using the Services (asdefined below) offered by Angad Corp. d/b/a WorkSpan (“WorkSpan,” “We,” or “Us”). Bymutually executing one or more order forms with WorkSpan which reference thisAgreement (each, an “Order Form”), by clicking “I Accept,” or by using the Service, You(including, if applicable, any legal entity which you represent or act for) (“User” or “You”)agree that you have read, understood, and agree to be bound by this Agreement, as may beamended by WorkSpan from time to time, to the exclusion of all other terms. If the termsof this Agreement are considered an offer, acceptance is expressly limited to such terms. Itis Your responsibility to regularly check if there have been changes to the Agreement andto review said changes. IF YOU ARE AN EMPLOYEE OF OR CONSULTANT ORCONTRACTOR TO THE USER ENTITY ENTERING INTO THIS AGREEMENT,YOUR AGREEMENT TO THESE TERMS AND CONDITIONS WILL BE DEEMED TOBE THE AGREEMENT OF THAT USER ENTITY, AND YOU AND YOUR ENTITYREPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEENPROVIDED THE AUTHORITY TO BIND THE USER ENTITY TO THE TERMS ANDCONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCESSING THE SERVICEPURSUANT TO OR ON BEHALF OF YOUR EMPLOYER OR PARENT ENTITY, THETERMS APPLICABLE TO YOUR USE OF THE SERVICE SHALL BE SUPERSEDEDBY AND COVERED SOLELY UNDER THE EXISTING AGREEMENT, IF ANY,BETWEEN WORKSPAN AND YOUR EMPLOYER OR PARENT ENTITY.
1.1 Content means any content (including without limitation any information, data, text,photographs, videos, audio clips, written posts and comments, software, scripts, graphics, andinteractive features generated, provided, or otherwise made accessible on or through theServices) User or any of its salespersons, employees, contractors, or agents adds, creates,submits, distributes, uploads, posts, transmits, or otherwise disseminates (or is added, created,uploaded, submitted, distributed, or posted on behalf of User) through WorkSpan.
1.2 Effective Date means the date set forth on the applicable Order Form, or, if no such OrderForm, the date that User accepts this Agreement.
1.3 Service(s) means access to the platform and certain features provided by WorkSpan asdescribed on one or more Order Forms attached to this Agreement. Additional information aboutthe Services and their features is available at https://www.workspan.com.
1.4 Website means the workspan.com website and domain name and all other websites anddomain names affiliated with WorkSpan and any other linked pages, features, content, orapplication services (including without limitation mobile application services) offered inconnection therewith by WorkSpan.
2. SERVICE; PROPRIETARY RIGHTS.
2.1 Service. Subject to User’s compliance with all terms and conditions of this Agreement,WorkSpan will make the Service available to User as of the Effective Date.
2.2 Service License. Subject to User’s compliance with all terms and conditions in thisAgreement (including any limitations and restrictions set forth on the applicable Order Form),WorkSpan grants User for the term of this Agreement a limited, personal, nonexclusive, non sublicensable, royalty-free, nontransferable (except as provided in this Agreement) license to accessand use the Service, including access to the Website, only in connection with the Services.Except as expressly and unambiguously granted herein, no right or license is granted. TheService is owned and operated by WorkSpan and the visual interfaces, graphics, design,compilation, information, computer code (including source code or object code), products,software, services, and all other elements of the Service provided by WorkSpan are protected byall relevant intellectual property and proprietary rights and applicable laws. WorkSpan reservesall rights not expressly granted herein.
2.3 Eligibility. You affirm that you are either more than 18 years of age, or an emancipatedminor, or possess legal parental or guardian consent, and are fully able and competent to enterinto the terms, conditions, obligations, affirmations, representations, and warranties set forth inthis Agreement, and to abide by and comply with this Agreement. You further represent andwarrant that you are not located in a country that is subject to a U.S. Government embargo, orthat has been designated by the U.S. Government as a” terrorist-supporting” country, and thatYou are not listed on any U.S. Government list of prohibited or restricted parties. If you areentering into this Agreement on behalf of an entity, organization, or company (a “SubscribingOrganization”), you represent and warrant that you have the authority to bind such SubscribingOrganization and its affiliates to this Agreement and you agree to be bound by this Agreement onbehalf of such Subscribing Organization. In such case, “You” in these Terms means suchSubscribing Organization, its affiliates, and each User of the Subscribing Organization.
2.4 Passwords. Except for a breach of our obligations hereunder or acts by WorkSpan, you aresolely responsible for maintaining the confidentiality of your password and you agree to acceptresponsibility for all activities that occur under your account. If you have reason to believe thatyour account is no longer secure, then you agree to notify us as soon as possible.
2.5 Content License. User, itself or acting as principal’s agent, hereby grants WorkSpan alicense to translate, modify (in order to make it compatible with the Service) and reproduceContent and otherwise act with respect to such Content in each case to enable us to operate theServices, as described in more detail below.
If you store Content in your own personal WorkSpan account, in a manner that is not viewableby any other user except you (“Personal Content”), you grant WorkSpan the license above, aswell as a license to display, perform, and distribute your Personal Content for the sole purpose ofmaking that Personal Content accessible to you and providing the Services necessary to do so.
If you share Content with other users through the Services (“Shared Content”), then you grantWorkSpan the licenses above, as well as a license to display, perform, and distribute your SharedContent for the sole purpose of making that Shared Content accessible to such other users, asspecified by you, and providing the Services necessary to do so. Also, you grant such otherspecified users a license to access that Shared Content and to use and exercise all rights in it, aspermitted by the functionality of the Services
You agree that the licenses you grant to WorkSpan are non-exclusive, royalty-free, perpetual,irrevocable, and worldwide.
WorkSpan reserves the right to remove Content at any time, for any reason, without prior noticeto you, including, without limitation, if it believes, in its sole discretion, that such Contentviolates this Agreement. User represents, warrants, and covenants that it (a) has all necessaryrights to grant the foregoing license, and to use, and allow WorkSpan to use the name, likeness,and identifying information of any identifiable person in the Content in the manner contemplatedby this Agreement and (b) that it will pay all royalties and other amounts owed to any third partydue to its use of the Content, if any. WorkSpan reserves the right to change the features offeredas part of the Services at any time, upon thirty (30) days’ notice to User.
2.6 Feedback. User may, at its discretion, provide feedback, suggestions, improvements,enhancements, and/or feature requests to WorkSpan with respect to its use of the Service(“Feedback”). User shall and hereby does grant to WorkSpan a nonexclusive, worldwide,perpetual, irrevocable, transferable, sub licensable, royalty-free, fully paid up license to use andexploit the Feedback for any purpose.
2.7 Aggregated Anonymous Data. You acknowledge and agree that, notwithstandinganything else, WorkSpan may generate and maintain Aggregated Anonymous Data (as definedbelow), and, during and after the term of this Agreement, freely use and make availableAggregated Anonymous Data for WorkSpan’s business purposes (including without limitation,for purposes of improving, testing, operating, promoting and marketing WorkSpan’s productsand services). “Aggregated Anonymous Data” means data submitted to, collected by, orgenerated by WorkSpan in connection with your use of the Service, but only in aggregate,anonymized form which cannot be linked specifically to you, your users or any individual.
2.8. Use of name. WorkSpan may use User or User’s principal’s name and logo for the purposesof identifying User or User’s principal as a WorkSpan customer. User agrees to participate inperiodic business reviews with WorkSpan to review the User’s success criteria andcorresponding results.
3.1 User shall not directly or indirectly (a) disassemble, decompile, reverse engineer or use anyother means to attempt to discover any source code of the Service (except to the extent that sucha prohibition would be prohibited by law), (b) use the Service in any manner that, or contributeany Content that, infringes or violates the intellectual property rights or proprietary rights, rightsof publicity or privacy, or other rights of any third party, (c) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any part of the Service,(d) use the Service in any manner that, or contribute any Content that, is harmful, fraudulent,deceptive, threatening, abusive, obscene, libelous, or otherwise objectionable, or that violatesany law, statute, ordinance, or regulation, (e) contribute any Content that contains a virus, trojanhorse, worm, time bomb, or other harmful computer code, file, or program, (f) sell, sublicense, orotherwise transfer the access granted herein or (g) permit any third party to engage in any of theforegoing proscribed acts.
3.2 All Content, whether shared or privately transmitted, is the sole responsibility of the Userwho originated such Content. User represents that all Content provided by User is accurate,complete, up-to-date, and in compliance with all applicable laws, rules and regulations. Further,User acknowledges that all Content shared and accessed by User using the Services is at User’sown risk and User will be solely responsible for any damage or loss to User or any other partyresulting therefrom. We do not guarantee that any Content you access on or through the Servicesis or will continue to be accurate.
4. EMPLOYEES AND CONTRACTORS.
4.1 User shall ensure that its salespersons, employees, contractors and agents comply with all ofUser’s obligations under this Agreement, and shall be responsible and liable for their acts andomissions in breach thereof.
4.2 User shall ensure that only its salespersons, employees, contractors and agents for whomWorkSpan has created authorized accounts will use the Services.
Each party (the “Receiving Party”) may receive business, technical, financial or otherproprietary information, materials, and/or ideas from the other party (the “Disclosing Party”)during the term of this Agreement, whether orally or written, that is designated as confidential orthat reasonably should be understood to be confidential given the nature of the information andthe circumstances of its disclosure (“Confidential Information”). WorkSpan’s ConfidentialInformation shall include, without limitation, details about the Services and its features and aboutpotential pricing of paid services and the terms of this Agreement. The Confidential Informationof both parties shall include the terms and conditions of this Agreement and all Order Forms, aswell as business and marketing plans, technology and technical information, product plans anddesigns, and business processes disclosed by such party. The Receiving Party agrees to hold inconfidence, by using the same degree of care it uses to protect its own information of like kind(but in no event less than a reasonable degree of care) and not use (except to exercise its rights orfulfill its obligations hereunder) or disclose the Disclosing Party’s Confidential Information.Confidential Information shall not include: (a) information that is or becomes publicly availablethrough no fault of Receiving Party, (b) was in Receiving Party’s possession or known by itwithout restriction prior to receipt from the Disclosing Party, (c) was rightfully disclosed toReceiving Party by a third party without restriction, or (d) was independently developed byReceiving Party without use of any Confidential Information of the Disclosing Party. TheReceiving Party may make disclosures of Disclosing Party’s Confidential Information required by law or court order provided it uses reasonable efforts to limit disclosure and to obtainconfidential treatment or a protective order for the Confidential Information and provided that itgives the Disclosing Party prior notice (to the extent legally permitted) of such disclosure, andreasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contestsuch disclosure. The Receiving Party shall limit access to Confidential Information of theDisclosing Party to those of its employees, contractors and agents who need such access forpurposes consistent with these Terms and who are bound by confidentiality agreements with theReceiving Party containing protections no less stringent than those herein. Except as expresslyset forth herein, no license or other rights to Confidential Information are granted or impliedhereby by either party.
Each party (as the “Indemnitor”) shall defend, indemnify, and hold harmless the other party, itsaffiliates and each of its and its affiliates’ employees, contractors, directors, suppliers andrepresentatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid orpayable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arisefrom or relate to any claim that (i) the Content or User’s use of the Service (in the case of User asIndemnitor), or (ii) the Service (in the case of WorkSpan as Indemnitor), infringes, violates, ormisappropriates any third party intellectual property or proprietary right. Each Indemnitor’sindemnification obligations hereunder shall be conditioned upon the Indemnitee providing theIndemnitor with: (i) prompt written notice of any claim (provided that a failure to provide suchnotice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor ismaterially prejudiced by such failure); (ii) the option to assume sole control over the defense andsettlement of any claim (provided that the Indemnitee may participate in such defense andsettlement at its own expense); and (iii) reasonable information and assistance in connection withsuch defense and settlement (at the Indemnitor’s expense). The foregoing obligations ofWorkSpan do not apply with respect to the Service or any information, technology, materials ordata (or any portions or components of the foregoing) to the extent (i) not created or provided byWorkSpan (including without limitation any Content), (ii) made in whole or in part in accordanceto User specifications, (iii) modified after delivery by WorkSpan, (iv) combined with otherproducts, processes or materials not provided by WorkSpan (where the alleged Losses arise fromor relate to such combination), (v) where User continues allegedly infringing activity after beingnotified thereof or after being informed of modifications that would have avoided the allegedinfringement, or (vi) User’s use of the Service is not strictly in accordance herewith.
WorkSpan offers email-based support. User may contact the support deskat email@example.com. WorkSpan will use commercially reasonable efforts to assist Userwith any problems User may be having with the Services, but WorkSpan does not make anypromises regarding response times, that it will be able to fix any such problems, or that theServices will be uninterrupted or error-free. Any suggestions by WorkSpan regarding use of theServices shall not be construed as a warranty.
Payment terms shall be as set forth on the applicable Order Form.
9. WARRANTY DISCLAIMER.
THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. NEITHERWORKSPAN NOR ITS SUPPLIERS WARRANTS THAT THE SERVICE WILL MEETUSER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THE OPERATIONOF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. EXCEPT ASOTHERWISE EXPRESSLY PROVIDED HEREIN, TO THE FULLEST EXTENTPERMITTED BY LAW, WORKSPAN HEREBY DISCLAIMS (FOR ITSELF AND ITSSUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL ORWRITTEN, WITH RESPECT TO THE SERVICE INCLUDING, WITHOUT LIMITATION,ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT,INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSEAND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OFPERFORMANCE OR USAGE OF TRADE.
10. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF ITS LIABILITYIS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, AND EXCEPTFOR (I) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, OR (II) USER’SPAYMENT OBLIGATIONS HEREUNDER, In no event shall EITHER PARTY (OR ITSSUPPLIERS) BE LIABLE CONCERNING THE SUBJECT MATTER OF this agreement,regardless of the form of any claim or action (whether in CONTRACT, NEGLIGENCE, STRICTLIABILITY OR OTHERWISE), for any (A) MATTER BEYOND ITS REASONABLECONTROL (INCLUDING ANY ERROR OR DAMAGE ATTRIBUTABLE TO ANYNETWORK OR SYSTEM, (B) LOSS OR INACCURACY of data, loss or interruption OF USE,OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS or SERVICE,(C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY ORCONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF USER,REVENUES, PROFITS AND GOODWILL, AND TRADING AND INVESTMENT LOSSES,OR (D) damages, IN THE AGGREGATE, in excess of the greater of $1000 or the fees paid byUser hereunder in the TWELVE (12) MONTHS preceding the applicable claim, EVEN IFSUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THISAGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANYREMEDY PROVIDED HEREIN.
11. TERM AND TERMINATION.
11.1 Term. This Agreement shall commence upon the Effective Date and, unless earlierterminated in accordance herewith, shall last until the expiration of all Terms under all applicableOrder Forms. For each Order Form, the “Term” shall begin as of the effective date set forth onsuch Order Form, and unless earlier terminated as set forth herein, shall continue for the initialterm specified on the Order Form (the “Initial Term”).
11.2 Termination. In the event of a material breach of this Agreement by either party, thenon-breaching party may terminate this Agreement by providing written notice to the breachingparty, provided that the breaching party does not materially cure such breach within thirty (30)days of receipt of such notice. Without limiting the foregoing, WorkSpan may suspend or limitUser’s access to or use of the Service if (i) User’s account is more than sixty (60) days past due,or (ii) User’s use of the Service results in (or is reasonably likely to result in) damage to ormaterial degradation of the Service which interferes with WorkSpan’s ability to provide access tothe Service to other customers; provided that in the case of subsection (ii): (a) WorkSpan shalluse reasonable good faith efforts to work with User to resolve or mitigate the damage ordegradation in order to resolve the issue without resorting to suspension or limitation; (b) prior toany such suspension or limitation, WorkSpan shall use commercially reasonable efforts toprovide notice to User describing the nature of the damage or degradation; and (c) WorkSpanshall reinstate User’s use of or access to the Service, as applicable, if User remediates the issuewithin thirty (30) days of receipt of such notice. User has no right to terminate for convenience.
11.3 Survival. Upon any expiration or termination of this Agreement, all rights, obligations andlicenses of the parties shall cease, except that the following provisions shall survive: Section 2.4,2.6 the second sentence of Section 3.2, Sections 4.1, 5, 6, 8.2, 8.5 and 9-12 (inclusive).
12. GENERAL PROVISIONS
12.1 Entire Agreement. This Agreement, including all applicable Order Forms, constitutes theentire agreement, and supersedes all prior negotiations, understandings or agreements (oral orwritten), between the parties about the subject matter of this Agreement. No waiver, consent or,except as expressly provided herein, modification of this Agreement shall bind either partyunless in writing and signed by the party against which enforcement is sought. The failure ofeither party to enforce its rights under this Agreement at any time for any period will not beconstrued as a waiver of such rights. If any provision of this Agreement is determined to beillegal or unenforceable, that provision will be limited or eliminated to the minimum extentnecessary so that this Agreement will otherwise remain in full force and effect and enforceable.
12.2 Governing Law. This Agreement shall be governed by and construed in accordance withthe laws of the State of California, without regard to its conflicts of law provisions. Unlesswaived by WorkSpan in its sole discretion, exclusive jurisdiction and venue for actions related tothis Agreement will be the state or federal courts located in San Francisco, California, and bothparties consent to the jurisdiction of such courts with respect to any such action. In any action orproceeding to enforce or interpret this Agreement, the prevailing party will be entitled to recoverfrom the other party its costs and expenses (including reasonable attorneys’ fees) incurred inconnection with such action or proceeding and enforcing any judgment or order obtained.
12.3 Notices. Any notice or communication hereunder shall be in writing and sent via confirmedemail address to firstname.lastname@example.org or at such other address designated in a subsequentnotice. All notices shall be in English, effective upon receipt.
12.4 Assignment. User shall not assign this Agreement without WorkSpan’s consent. WorkSpanmay freely assign or transfer this Agreement (in whole or in part) without consent.
12.5 No Agency. Notwithstanding anything else, the parties are independent contractors, and thisAgreement does not create an agency, partnership, or joint venture.
12.7 Linked Websites. The Service or Website may contain links to third-party websites whichare not under our control, and we are not responsible for their content.
12.6 Headings. Headings herein are for convenience of reference only and shall in no way affectinterpretation of this Agreement.
12.8 Changes. WorkSpan reserves the right to, without materially affecting the functionality ofthe Services: (1) discontinue, impose limits on, or restrict access to any aspect of the Services atany time, with or without cause or notice, including the availability of any of the features,delivery services, databases, or content, or (2) edit or delete any materials appearing in theServices.
12.9 No Waiver. Failure to require performance of any provision shall not affect our right torequire performance at any time thereafter, nor shall a waiver of any breach or default hereunderconstitute a waiver of any subsequent breach or default or a waiver of the provision itself.
12.10 Severability. In the event that any part of the Agreement is held to be invalid orunenforceable, the unenforceable part shall be given effect to the greatest extent possible and theremaining parts will remain in full force and effect.
12.11 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay inthe performance of its obligations hereunder (except for the payment of money) on account ofevents beyond the reasonable control of such party, which may include without limitationdenial-of-service attacks, strikes (except by its own employees), shortages, riots, insurrection,fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, laborconditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon theoccurrence of a Force Majeure Event, the non-performing party will be excused from any furtherperformance of its obligations effected by the Force Majeure Event for so long as the eventcontinues and such party continues to use commercially reasonable efforts to resumeperformance.
12.12 Compliance with Laws. Each party agrees to comply with all applicable laws, includingU.S. export laws, and regulations with respect to its activities hereunder.
12.13 Equitable Relief. Each party acknowledges that a breach by the other party of anyconfidentiality or proprietary rights provision of this Agreement may cause the non-breachingparty irreparable damage, for which the award of damages would not be adequate compensation.Consequently, the non-breaching party may institute an action to enjoin the breaching party fromany and all acts in violation of those provisions, which remedy shall be cumulative and notexclusive, and a party may seek the entry of an injunction enjoining any breach or threatenedbreach of those provisions, in addition to any other relief to which the non-breaching party maybe entitled at law or in equity.
12.14 No third-party beneficiaries. This Agreement is for the sole benefit of the signatories andis not intended to benefit any third party.
12.15 Digital Millennium Copyright Act. WorkSpan complies with the Digital MillenniumCopyright Act (the “DMCA”) with regard to material on the Website that allegedly violates athird party’s copyright. We reserve the right to delete or disable Content alleged to be infringing,and to terminate the accounts of repeat alleged infringers.
12.16 Modifications. WorkSpan may modify the terms set forth herein, the DPA, or the PrivacyPolicy from time to time at its sole discretion and such updated terms, once posted onWorkSpan’s website or otherwise notified to you, shall govern, and by using or accessing theService after any such modifications, you hereby agree and consent to those modifications. Werecommend that you periodically review the terms, to see if any changes were introduced asreflected in the “Last Updated” date
12.19 Data Processing Addendum. In the event that User uses the Service to processinformation of any EU citizens or is subject to other laws that require a Data ProcessingAddendum, the WorkSpan Data Processing Addendum located athttps://www.workspan.com/data-processing-agreement (“DPA”) is hereby incorporated byreference, and shall apply to the extent that User’s Content includes Personal Data. To the extentthat WorkSpan processes User’s Personal Data from the European Economic Area (“EEA“), theUnited Kingdom, or Switzerland, the Standard Contractual Clauses shall apply, as further set outin the DPA. For the purposes of the Standard Contractual Clauses, User and its applicableaffiliates (e.g., the Authorized Partners, as defined in the DPA) are each the data exporter, andUser’s acceptance of this Agreement shall be treated as an execution of the DPA and theStandard Contractual Clauses and their Appendices.