End user license agreement (EULA) for Workshare Professional 8

WORKSHARE COMMERCIAL CLICK-THROUGH AGREEMENT
 

THIS WORKSHARE COMMERCIAL CLICK-THROUGH AGREEMENT (THIS “AGREEMENT”) IS BETWEEN WORKSHARE Inc of 625 Market Street, 15th Floor, San Francisco, CA 94105 ("WORKSHARE") AND YOU.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).
 

BY CLICKING ON THE “I accept the terms of this agreement and use of information including cookies” BUTTON BELOW, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TERMS OF USE REFERRED TO IN SECTION 2(C) BELOW TO THE EXTENT APPLICABLE.  
 

THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE DATE UPON WHICH YOU CLICK THE “I accept the terms of this agreement and use of information including cookies” BUTTON BELOW. FOR THE PURPOSE OF THIS AGREEMENT, YOU AND, IF APPLICABLE, SUCH COMPANY (OR OTHER ENTITY) THAT YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF CONSTITUTES “YOU”.
 

1. Background.  Workshare develops, maintains and provides access to a certain software solution.  In this Agreement, “Software” means (a) the object code version of the "Workshare" branded computer program which you have properly paid the license fee for, (b) the documentation accompanying the computer program, and (c) any updates of such program and documentation.  You wish to use the Software.  The Software may be downloaded from Workshare’s site identified by the URL www.workshare.com (“Website”).
 

2. License. 

3. License Restrictions.  Unless expressly otherwise set forth in this Agreement, You will not: 

4. Ownership.  As between the parties and subject to the grants under this Agreement, Workshare owns all right, title and interest in and to the Software and any and all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively, “Intellectual Property Rights”) embodied therein.  

5. Payment Procedures and Late Payments.  

6. Audit.  Workshare shall have the right to audit Your compliance with the terms of this Agreement and the use restrictions on the Software, including the restriction on the number of authorized devices with access to the Software or number of copies of the Software, as applicable.  You agree to grant access to Workshare to facilities, equipment, books, records and documents and to otherwise reasonably cooperate with Workshare in order to facilitate any such audit.

7. Nondisclosure.  “Confidential Information” means all information disclosed (whether in oral, written, or other tangible or intangible form) by Workshare to You concerning or related to this Agreement, Workshare and its affiliates (whether before, on or after the Effective Date) which You know or should know, given the facts and circumstances surrounding the disclosure of the information to You, is confidential information of Workshare or its affiliates.  You will, during the term of this Agreement, and thereafter maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted herein. You will use the same degree of care in protecting the Confidential Information as You use to protect Your own confidential information from unauthorized use or disclosure, but in no event less than reasonable care.  In addition, You: (a) will not reproduce Confidential Information, in any form, except as required to accomplish Your obligations under this Agreement; and (b) will only disclose Confidential Information to Your employees and consultants who have a need to know such Confidential Information in order to perform their duties under this Agreement and if such employees and consultants have executed a non-disclosure agreement with You with terms no less restrictive than the non-disclosure obligations contained in this section. Confidential Information will not include information that:  (i) is in or enters the public domain without breach of this Agreement through no fault of You; (ii) You can reasonably demonstrate was in Your possession prior to first receiving it from Workshare; (iii) You can demonstrate was developed by You independently and without use of or reference to the Confidential Information; or (iv) You receive from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Notwithstanding any terms to the contrary in this Agreement, any suggestions, comments or other feedback provided by You to Workshare with respect to the Software (collectively, “Feedback”) will constitute Confidential Information. Further, Workshare will be free to use, disclose, reproduce, license and otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.

8. Workshare Limited Warranty.  Workshare warrants that for a period of ninety (90) days after the Effective Date, the Software, if operated as directed and used in the environment described in the documentation accompanying the Software, will substantially achieve the functionality described in such documentation. Workshare further warrants that it has used commercially available virus checking software to check that the Software is free of viruses and other malicious code prior to its supply to You.   To the maximum extent permitted by applicable law, Workshare and its suppliers’ entire liability and Your exclusive remedy for failure of the Software to conform to the foregoing warranty is, at Workshare’s option: (a) to receive from Workshare repaired or corrected Software or instructions as to how to achieve substantially the same functionality with the Software as described in the accompanying documentation; or (b) upon the return of all copies of the Software to Workshare, to receive a refund of the license fees paid by You for the Software. YOU HAVE NO OTHER RIGHTS OR REMEDIES AGAINST WORKSHARE FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8.

9. Disclaimer.  EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8, THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. WORKSHARE AND ITS RESELLERS AND SUPPLIERS DO NOT WARRANT THAT ANY OF THE SOFTWARE OR SERVICES WILL BE FREE FROM ALL BUGS, ERRORS, OR OMISSIONS. WORKSHARE AND ITS RESELLERS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE AND SERVICES WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (A) WARRANTIES OF MERCHANTABILITY OR QUALITY, (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WORKSHARE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. YOU FURTHER AGREE THAT NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 8 OR OTHERWISE, YOU WILL NOT HOLD WORKSHARE LIABLE FOR ANY FAILURE OF THE SECURITY FUNCTIONALITY OF THE SOFTWARE TO RESTRICT OR PREVENT THE SENDING OF DOCUMENTS OUTSIDE THE EMAIL SYSTEM ON WHICH THE SOFTWARE IS INSTALLED, IF SUCH FUNCTIONALITY IS INCLUDED IN THE SOFTWARE, AND YOU WILL NOT RELY ON THE SOFTWARE OR ITS SECURITY FUNCTIONALITY TO RESTRICT OR PREVENT THE SENDING OF DOCUMENTS OUTSIDE ANY EMAIL SYSTEM.

10. Indemnification.  Workshare will defend and hold You harmless from and against any judicial proceeding based upon a third party claim that the Software for which You have paid the applicable license fees infringes any U.S. patent. U.S. trademark, copyright or trade secret and will indemnify You against any damages, judgments and costs finally awarded against You in such proceeding; provided You: (a) give Workshare prompt written notice of the claim; (b) permit Workshare to control the defense and settlement of the claim and do not do anything which may prejudice the defense of the claim; and (c) cooperate with Workshare in the defense and settlement of the claim.  Workshare's defense and indemnification obligations will not apply to any actual or alleged infringement based upon: (i) modification of the Software by anyone other than Workshare, (ii) abuse, misapplication or casualty loss; (iii) use of the Software in combination with any other program or device, if such infringement would have been avoided but for such modification or combination, or (iv) failure to install or use any error corrections, fixes or other updates furnished by Workshare, if such infringement could have been avoided by such installation or use.  In the event any component of the Software licensed by You or Your use of such component is held to infringe or in Workshare’s reasonable judgment is likely to infringe any third party intellectual property right, Workshare may, at its option, (x) obtain a license for You to continue to use such component, (y) modify the component so that it is noninfringing, or (z) terminate this Agreement as it pertains to such component and refund a portion of the license fee paid by You for such component prorated over three (3) years from the date of purchase.  

11. Limitation of Liability.  EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL WORKSHARE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, ANY INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WORKSHARE HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ANY ACTS OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT will WORKSHARE’s TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED IN ANY consecutive 12 MONTH period commencing on the effective date or anniversay thereof (each such 12 month period being a "contract year") THE aggregate of the amounts paid by you to WORKSHARE IN RELATION TO THAT CONTRACT YEAR, if any, UNDER THIS AGREEMENT. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.  SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND SECTIONS 8, 9 and 11 WILL NOT APPLY ONLY TO THE EXTENT THAT APPLICABLE LAW REQUIRES LIABILITY NOTWITHSTANDING THE LIMITATIONS OR EXCLUSIONS THEREIN.

12. Third Party Suppliers.  The Software may include software or other code distributed under license from third party suppliers. You acknowledge that such third party suppliers disclaim and make no representation or warranty with respect to the Software or any portion thereof and assume no liability for any claim that may arise with respect to the Software or Your use or inability to use the same.

13. Termination.  This Agreement will remain in effect from the Effective Date for the duration of the subscription period determined by the applicable order submitted by You and accepted by Workshare, unless otherwise terminated in accordance with this Section 13; provided, however, that any term Software License will automatically renew for subsequent one-year terms, at the then-current standard terms and conditions, Subject always to Section 5, upon each anniversary of the initial Effective Date, unless either party notifies the other in writing of its intent to terminate at least 60 (sixty) days prior to the termination of the then-current subscription period.

Without prejudice to any other rights, Workshare may terminate this Agreement if You do not abide by the terms and conditions contained herein.  Upon expiration or termination of this Agreement: (a) all rights granted to You under this Agreement will immediately cease and you agree to cease using the Software; and (b) You will promptly provide Workshare with all Confidential Information then in Your possession or destroy all copies of such Confidential Information, at Workshare’s sole discretion and direction. In addition to all definitions and this sentence, the following sections will survive any termination or expiration of this Agreement: 3, 4, 6, 7, 9, 11 and 13-19.

14. Governing Law; Venue.  This Agreement will be governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions to the contrary. The 1980 U.N. Convention on Contracts for the International Sale of Goods or any successor thereto does not apply.  The parties agree that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state and federal courts located in the County of San Francisco, California. The parties hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of this Agreement.

15. English Language.  It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C'est la volonté expresse exigé par les parties que cette convention et tous les documents y afférents, soient rédigés en anglais seulement.

16. Attorneys' Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys' fees.

 

19. Miscellaneous.  This Agreement is the entire agreement of the parties regarding the subject matter hereof, superseding all other agreements between them, whether oral or written, regarding the subject matter hereof. You may not transfer Your rights under this Agreement to any third party and no third party shall obtain any rights under this Agreement to enforce any of its terms. Workshare may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns. If any provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this Agreement will nonetheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled. Any notice, demand or communication required or permitted to be given by any provision of this Agreement will be deemed to have been sufficiently given or served for all purposes if: (a) delivered personally; or (b) deposited with a pre-paid messenger, express or air courier or similar courier; or to like equipment that receives and reproduces such notice. Notices will be deemed to have been received (i) in the case of personal delivery, upon receipt, and (ii) in the case of messenger, express or air courier or similar courier, two days after being deposited, No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.