Workstorm Master Services Agreement

    Admin Services Agreement.

    Effective October 22, 2017

    This Workstorm Master Services Agreement (these “Terms”) contain the terms and conditions that govern your access to and use of the Workstorm Services (defined below) and are an agreement between Workstorm LLC and/or its affiliates (“Workstorm,” “we,” “us,” or “our”) and you or the entity you represent (“you”). These Terms take effect when you register for a Workstorm enterprise account (an “Enterprise Account”), log in, click an “I Accept” button or check the box presented with these Terms or, if earlier, when you use any of the Services (“Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into these Terms for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Capitalized terms used in these Terms and not otherwise defined will have the meanings ascribed to them in the Terms of Service.

    1. Access; Your Account. The “Service” is Workstorm’s hosted, scalable platform for workplace collaboration that combines email, video chat, screen sharing, and file sharing. We may add, remove or change the Service from time to time. You may access and use the Service in accordance with these Terms, the Terms of Service, and our Privacy Policy. To access the Service, you must register for an Enterprise Account and agree to these Terms. Once you have registered for an Enterprise Account, you may register others within or outside of your organization (each, a “User”) for individual User Accounts associated with your Enterprise Account. You will provide us with complete, true, and accurate information in connection with the creation and use of your Enterprise Account and all User Accounts. Unless we expressly agree otherwise, you must have a valid payment method associated with your Enterprise Account. If there is a problem charging your selected payment method, we may charge any other payment method associated with your Enterprise Account. You are responsible for all activities that occur under your Enterprise Account and all associated User Accounts, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents). We may refuse service at our discretion, and we may suspend or terminate your account, terminate your right to use the Service, or remove or edit content, in accordance with these Terms. If we terminate your account, you will not create another one without our permission.

    2. Use of the Service.

      1. Service License. Subject to your compliance with these Terms and the Terms of Service, and your payment of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Service. This license does not include any resale or commercial use of the Service, or any of its contents; or any use of data mining, robots, or similar data gathering and extraction tools. We or our licensors reserve all rights not granted herein. You may not reproduce, duplicate, copy, sell, or resell the Service or access to it. You may not misuse the Service. You may use the Service only as permitted by law. The licenses granted herein terminate if you do not comply with these Terms or the Terms of Service. We may change or discontinue the Service or change or remove functionality of the Service from time to time. We will notify you of any material change to or discontinuation of the Service.
      2. License Restrictions. Neither you nor any User may use the Service in any manner or for any purpose other than as expressly permitted by these Terms and the Terms of Service. Neither you nor any User may, or may attempt to, (a) resell or sublicense the Service or any part of it; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Services (“Software”); © modify, alter, tamper with, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by us or authorized within the Services); or (d) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. Although we have no obligation to monitor your use of the Service, we may do so and may prohibit any use of the Service we believe may be in violation of any of these Terms.
      3. Evaluation Use. If we agree to your pilot or evaluation use of the Service (“Evaluation” or “Pilot”), then notwithstanding any other terms to the contrary, you may use the Evaluation or Pilot Service only for your internal demonstration, test, or evaluation purposes and not in a production environment, for a term we mutually agree to. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THESE TERMS, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY PILOT OR EVALUATION SERVICE AND IT IS PROVIDED ON AN “AS IS” BASIS. You will not attempt to defeat or circumvent any duration mechanism for a Pilot or Evaluation Service, and will not use any Pilot or Evaluation Service beyond the prescribed license duration.
      4. Export Compliance. You may not remove or export from the United States or allow the export or re-export of the Service, Software or any part of either of them in violation of any restriction, law or regulation of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign authority. As defined in FAR §2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.
    3. Content Rights and Responsibilities.

      1. Content. You are solely responsible for all information, text, photos, links, and other media (collectively, “Content”) you (or any other user associated with your Enterprise Account) enter into or upload to or through the Service or otherwise transmit to Workstorm in connection with the Properties or the Service (“Your Content”).You will not transmit Content that is illegal, obscene, threatening, defamatory, invasive of privacy, infringing of proprietary rights, or otherwise injurious to third parties or objectionable, or content that contains software viruses or other harmful code or script, or any form of “spam” or unsolicited commercial electronic messages. You will ensure that you have adequate rights and permissions to provide us with access to any such materials or information. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of Your Content. We may remove or edit such content, or review it in the course of investigating an alleged violation, but we have no obligation to, nor do we regularly, review Your Content. We take no responsibility and assume no liability for any content posted by you or any third party.
      2. Suggestions. If you provide any ideas for suggested improvements or other feedback about the Service or Software (“Suggestions”) to us, we may use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions. You represent and warrant that you or your licensor(s) own all right, title, and interest in and to the Suggestions; and that you have all rights in your Suggestions necessary to grant the rights granted in this Section 3.
      3. Usage Data. We may use technical, account, usage and performance data derived from your interactions with and use of the Software and Service, consisting of, for example, usage history, statistics, and telemetry, and including information derived from Your Content (“Usage Data”) to service your accounts, support and improve our products and services, and provide you with information on our services. We may also use Aggregated Data to develop new features, products, tools, and content, for market research, and to offer products and services of interest to our customers. “Aggregated Data” means Usage Data that has been stripped of any and all information that identifies you or is capable of identifying you.
    4. Hardware. You are solely responsible for obtaining and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use the Service, including, without limitation, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). You are responsible for maintaining the security of the Equipment and your Enterprise Account and User Accounts (including but not limited to administrative and user passwords).

    5.Proprietary Rights. 1. Services and Software. We and our affiliates and licensors own all right, title, and interest in and to the (a) Service and the Software; (b) all improvements, enhancements and modifications to the Service and the Software; and © all technology and intellectual property rights related to the foregoing. 2. Your Content. Except as provided in this Section and in Sections 3.2 and 3.3, we obtain no rights under these Terms from you or your licensors to Your Content. You consent to our use of Your Content to provide the Service to you and your Users.

    1. Privacy and Data Security. You acknowledge that we and our affiliates will handle any personal data relating to you or your Users that is provided to us and our affiliates for the purposes of the Service in accordance with our Privacy Policy. You represent and warrant that you are entitled in accordance with applicable laws to provide such personal data to us and our affiliates for the purposes of the Service, and that you will make our Privacy Policy available to all Users whose personal data you provide to us and our affiliates. If you provide personal data to us on behalf of any third party in connection with the Service, you are responsible to such third party for your use and handling of such personal data in accordance with applicable laws. We may from time to time notify you of any changes to our Privacy Policy, but you should check the Properties frequently for recent changes and notify your Users about any updated version. Without limiting Section 11 or your obligations under these Terms, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.

    2. Fees and Payment. You will pay us all applicable fees and charges for use of and access to the Service as described on the Properties (“Fees”) using one of the payment methods we support. We may change the Fees at any time. If we change Fees during a Service Term, the new Fees will be effective for you as of the start of your next Service Term. All amounts payable on a statement will be final if you do not dispute them within 60 days of your receipt of the statement containing the disputed calculation. If we agree to invoice you in arrears, you will pay all invoices within 30 days of the invoice date. We may charge interest on overdue amounts of the lower of 1.5% per month or the maximum permitted by law. You will reimburse us for all costs associated with our collection efforts on unpaid amounts. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding. You are responsible for all taxes other than U.S. taxes based on our net income.

    3. Your Compliance. You represent and warrant to us that: (a) you will use the Service only in compliance with these Terms, the Terms of Service, our published policies then in effect (the “Policies”) and all applicable laws and regulations; (b) you or your licensors own all right, title, and interest in and to Your Content and Suggestions.

    4. Term; Termination. These Terms are effective on the Effective Date and will continue for the Service Term. At the end of each Service Term, the Service Term will renew for an additional period of time of the same duration as the initial Service Term, unless and until either party provides notice of termination to the other in accordance with these Terms at least 30 days prior to the end of the then-current term. We may suspend or terminate your use of the Service and/or your Enterprise Account or User Account(s) upon notice for any breach by you of these Terms. In such event, you will not receive any discount, credit or refund of any fees, expenses or charges payable by you under these Terms. Upon termination, (a) all your rights under these Terms will immediately terminate, (b) you remain responsible for all fees you have incurred through the date of termination, and © Sections 1, 2.2, 2.4, 3.1, 3.3, 5.1, 7, 10-12, 15, and 17-18 will continue to apply in accordance with their terms.

    5. Indemnification. To the maximum extent permitted by law, and except to the extent caused by us, our employees, agents, or subcontractors, you will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) any violation by you or any of your Users of your representations and warranties in these Terms; (b) your or of your Users’ use of the Service in a manner not authorized by these Terms; or © a dispute between you and any third party with respect to use of the Service. We may assume control of the defense and settlement of any third party claim of the nature described above at any time.

    6. Disclaimers. THE SERVICE IS PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT IT WILL PROVIDE ANY PARTICULAR RESULTS; AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

    7. Limitation of Liability. WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE FOR ANY REASON; (B) COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR © ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 12 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

    8. Modifications. We may modify these Terms at any time by posting a revised version on the Properties or within an area visible to Enterprise Account holders, or by otherwise notifying you in accordance with Section 15. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to access or use the Service after the effective date of any modifications to these Terms, you agree to be bound by the modified terms. It is your responsibility to check the Properties and your Enterprise Account regularly for modifications to these Terms. We last modified these Terms on the date listed at the beginning of these Terms.

    9. Force Majeure. Without limitation of Section 11, we will use reasonable efforts to maintain the Service in a manner intended to minimize errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of causes beyond our reasonable control. We will use reasonable efforts to notify you by email or through your Enterprise Account of any scheduled service downtime. We and our affiliates will not be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any cause beyond our reasonable control, including, subject to applicable law, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

    10. Notice

      1. To You. We will provide any notice to you under these Terms of Service by: (A) sending a notification through your User Account, or (B) sending a message to the email address then associated with your User Account. Any notices provided through your User Account will be effective upon posting, and notices provided by email will be effective upon sending.
      2. To Us. To give us notice under these Terms, you must contact us as follows: (i) by email to legal@workstorm.com; or (ii) by personal delivery, overnight courier or registered or certified mail to Workstorm, 27 N. Wacker Drive, #464, Chicago, IL 60606, attention CEO. We may update the email or address for notices to us by posting a notice on the Properties. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
      3. Miscellaneous. If any provision of these Terms is found unenforceable or invalid, that provision will be limited or eliminated to the extent necessary for these Terms to otherwise remain in full force and effect and enforceable. You may not assign, transfer, or sublicense these Terms or any of your rights or obligations under them without our prior written consent. We may assign any of our rights and obligations under these Terms at any time. These Terms, together with the Policies, Terms of Service, and Privacy Policy, constitute the entire agreement of the parties with respect to the Service and supersede all previous written and oral agreements relating to the Service. The failure by either party to enforce any provision of these Terms will not constitute a present or future waiver of such provision or limit such party’s right to enforce such provision at a later time. No agency, partnership, joint venture, or employment is created as a result of these Terms, and you have no authority to bind us. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. The United Nations Convention on the International Sale of Goods does not apply to these Terms.
      4. Disputes. Any dispute or claim relating in any way to your use of the Service will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would. To begin an arbitration proceeding, you must send an email to legal@workstorm.com. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. We will pay all AAA arbitration fees for claims less than $25,000. If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you $1,000 more than the award. We will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines that your claim is frivolous. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. We and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

    Workstorm Master Services Agreement.

    Effective October 22, 2017

    This Workstorm Master Services Agreement (these “Terms”) contain the terms and conditions that govern your access to and use of the Workstorm Services (defined below) and are an agreement between Workstorm LLC and/or its affiliates (“Workstorm,” “we,” “us,” or “our”) and you or the entity you represent (“you”). These Terms take effect when you register for a Workstorm enterprise account (an “Enterprise Account”), log in, click an “I Accept” button or check the box presented with these Terms or, if earlier, when you use any of the Services (“Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into these Terms for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Capitalized terms used in these Terms and not otherwise defined will have the meanings ascribed to them in the Terms of Service.

    1. Access; Your Account. The “Service” is Workstorm’s hosted, scalable platform for workplace collaboration that combines email, video chat, screen sharing, and file sharing. We may add, remove or change the Service from time to time. You may access and use the Service in accordance with these Terms, the Terms of Service, and our Privacy Policy. To access the Service, you must register for an Enterprise Account and agree to these Terms. Once you have registered for an Enterprise Account, you may register others within or outside of your organization (each, a “User”) for individual User Accounts associated with your Enterprise Account. You will provide us with complete, true, and accurate information in connection with the creation and use of your Enterprise Account and all User Accounts. Unless we expressly agree otherwise, you must have a valid payment method associated with your Enterprise Account. If there is a problem charging your selected payment method, we may charge any other payment method associated with your Enterprise Account. You are responsible for all activities that occur under your Enterprise Account and all associated User Accounts, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents). We may refuse service at our discretion, and we may suspend or terminate your account, terminate your right to use the Service, or remove or edit content, in accordance with these Terms. If we terminate your account, you will not create another one without our permission.

    2. Use of the Service.

      1. Service License. Subject to your compliance with these Terms and the Terms of Service, and your payment of all applicable fees, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Service. This license does not include any resale or commercial use of the Service, or any of its contents; or any use of data mining, robots, or similar data gathering and extraction tools. We or our licensors reserve all rights not granted herein. You may not reproduce, duplicate, copy, sell, or resell the Service or access to it. You may not misuse the Service. You may use the Service only as permitted by law. The licenses granted herein terminate if you do not comply with these Terms or the Terms of Service. We may change or discontinue the Service or change or remove functionality of the Service from time to time. We will notify you of any material change to or discontinuation of the Service.
      2. License Restrictions. Neither you nor any User may use the Service in any manner or for any purpose other than as expressly permitted by these Terms and the Terms of Service. Neither you nor any User may, or may attempt to, (a) resell or sublicense the Service or any part of it; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Services (“Software”); © modify, alter, tamper with, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by us or authorized within the Services); or (d) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. Although we have no obligation to monitor your use of the Service, we may do so and may prohibit any use of the Service we believe may be in violation of any of these Terms.
      3. Evaluation Use. If we agree to your pilot or evaluation use of the Service (“Evaluation” or “Pilot”), then notwithstanding any other terms to the contrary, you may use the Evaluation or Pilot Service only for your internal demonstration, test, or evaluation purposes and not in a production environment, for a term we mutually agree to. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THESE TERMS, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, FOR ANY PILOT OR EVALUATION SERVICE AND IT IS PROVIDED ON AN “AS IS” BASIS. You will not attempt to defeat or circumvent any duration mechanism for a Pilot or Evaluation Service, and will not use any Pilot or Evaluation Service beyond the prescribed license duration.
      4. Export Compliance. You may not remove or export from the United States or allow the export or re-export of the Service, Software or any part of either of them in violation of any restriction, law or regulation of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign authority. As defined in FAR §2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of commercial software or commercial software documentation by the U.S. Government will be governed solely by these Terms and will be prohibited except to the extent expressly permitted by these Terms.
    3. Content Rights and Responsibilities.

      1. Content. You are solely responsible for all information, text, photos, links, and other media (collectively, “Content”) you (or any other user associated with your Enterprise Account) enter into or upload to or through the Service or otherwise transmit to Workstorm in connection with the Properties or the Service (“Your Content”).You will not transmit Content that is illegal, obscene, threatening, defamatory, invasive of privacy, infringing of proprietary rights, or otherwise injurious to third parties or objectionable, or content that contains software viruses or other harmful code or script, or any form of “spam” or unsolicited commercial electronic messages. You will ensure that you have adequate rights and permissions to provide us with access to any such materials or information. You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of Your Content. We may remove or edit such content, or review it in the course of investigating an alleged violation, but we have no obligation to, nor do we regularly, review Your Content. We take no responsibility and assume no liability for any content posted by you or any third party.
      2. Suggestions. If you provide any ideas for suggested improvements or other feedback about the Service or Software (“Suggestions”) to us, we may use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions. You represent and warrant that you or your licensor(s) own all right, title, and interest in and to the Suggestions; and that you have all rights in your Suggestions necessary to grant the rights granted in this Section 3.
      3. Usage Data. We may use technical, account, usage and performance data derived from your interactions with and use of the Software and Service, consisting of, for example, usage history, statistics, and telemetry, and including information derived from Your Content (“Usage Data”) to service your accounts, support and improve our products and services, and provide you with information on our services. We may also use Aggregated Data to develop new features, products, tools, and content, for market research, and to offer products and services of interest to our customers. “Aggregated Data” means Usage Data that has been stripped of any and all information that identifies you or is capable of identifying you.
    4. Hardware. You are solely responsible for obtaining and maintaining all equipment and ancillary services needed to connect to, access, or otherwise use the Service, including, without limitation, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). You are responsible for maintaining the security of the Equipment and your Enterprise Account and User Accounts (including but not limited to administrative and user passwords).

    5. Proprietary Rights.

      1. Services and Software. We and our affiliates and licensors own all right, title, and interest in and to the (a) Service and the Software; (b) all improvements, enhancements and modifications to the Service and the Software; and © all technology and intellectual property rights related to the foregoing.
      2. Your Content. Except as provided in this Section and in Sections 3.2 and 3.3, we obtain no rights under these Terms from you or your licensors to Your Content. You consent to our use of Your Content to provide the Service to you and your Users.
    6. Privacy and Data Security. You acknowledge that we and our affiliates will handle any personal data relating to you or your Users that is provided to us and our affiliates for the purposes of the Service in accordance with our Privacy Policy. You represent and warrant that you are entitled in accordance with applicable laws to provide such personal data to us and our affiliates for the purposes of the Service, and that you will make our Privacy Policy available to all Users whose personal data you provide to us and our affiliates. If you provide personal data to us on behalf of any third party in connection with the Service, you are responsible to such third party for your use and handling of such personal data in accordance with applicable laws. We may from time to time notify you of any changes to our Privacy Policy, but you should check the Properties frequently for recent changes and notify your Users about any updated version. Without limiting Section 11 or your obligations under these Terms, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.

    7. Fees and Payment. You will pay us all applicable fees and charges for use of and access to the Service as described on the Properties (“Fees”) using one of the payment methods we support. We may change the Fees at any time. If we change Fees during a Service Term, the new Fees will be effective for you as of the start of your next Service Term. All amounts payable on a statement will be final if you do not dispute them within 60 days of your receipt of the statement containing the disputed calculation. If we agree to invoice you in arrears, you will pay all invoices within 30 days of the invoice date. We may charge interest on overdue amounts of the lower of 1.5% per month or the maximum permitted by law. You will reimburse us for all costs associated with our collection efforts on unpaid amounts. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding. You are responsible for all taxes other than U.S. taxes based on our net income.

    8. Your Compliance. You represent and warrant to us that: (a) you will use the Service only in compliance with these Terms, the Terms of Service, our published policies then in effect (the “Policies”) and all applicable laws and regulations; (b) you or your licensors own all right, title, and interest in and to Your Content and Suggestions.

    9. Term; Termination. These Terms are effective on the Effective Date and will continue for the Service Term. At the end of each Service Term, the Service Term will renew for an additional period of time of the same duration as the initial Service Term, unless and until either party provides notice of termination to the other in accordance with these Terms at least 30 days prior to the end of the then-current term. We may suspend or terminate your use of the Service and/or your Enterprise Account or User Account(s) upon notice for any breach by you of these Terms. In such event, you will not receive any discount, credit or refund of any fees, expenses or charges payable by you under these Terms. Upon termination, (a) all your rights under these Terms will immediately terminate, (b) you remain responsible for all fees you have incurred through the date of termination, and © Sections 1, 2.2, 2.4, 3.1, 3.3, 5.1, 7, 10-12, 15, and 17-18 will continue to apply in accordance with their terms.

    10. Indemnification. To the maximum extent permitted by law, and except to the extent caused by us, our employees, agents, or subcontractors, you will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) any violation by you or any of your Users of your representations and warranties in these Terms; (b) your or of your Users’ use of the Service in a manner not authorized by these Terms; or © a dispute between you and any third party with respect to use of the Service. We may assume control of the defense and settlement of any third party claim of the nature described above at any time.

    11. Disclaimers. THE SERVICE IS PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, OR THAT IT WILL PROVIDE ANY PARTICULAR RESULTS; AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

    12. Limitation of Liability. WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE FOR ANY REASON; (B) COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR © ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 12 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

    13. Modifications. We may modify these Terms at any time by posting a revised version on the Properties or within an area visible to Enterprise Account holders, or by otherwise notifying you in accordance with Section 15. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to access or use the Service after the effective date of any modifications to these Terms, you agree to be bound by the modified terms. It is your responsibility to check the Properties and your Enterprise Account regularly for modifications to these Terms. We last modified these Terms on the date listed at the beginning of these Terms.

    14. Force Majeure. Without limitation of Section 11, we will use reasonable efforts to maintain the Service in a manner intended to minimize errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of causes beyond our reasonable control. We will use reasonable efforts to notify you by email or through your Enterprise Account of any scheduled service downtime. We and our affiliates will not be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any cause beyond our reasonable control, including, subject to applicable law, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

    15. Notice

      1. To You. We will provide any notice to you under these Terms of Service by: (A) sending a notification through your User Account, or (B) sending a message to the email address then associated with your User Account. Any notices provided through your User Account will be effective upon posting, and notices provided by email will be effective upon sending.
      2. To Us. To give us notice under these Terms, you must contact us as follows: (i) by email to legal@workstorm.com; or (ii) by personal delivery, overnight courier or registered or certified mail to Workstorm, 27 N. Wacker Drive, #464, Chicago, IL 60606, attention CEO. We may update the email or address for notices to us by posting a notice on the Properties. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
      3. Miscellaneous. If any provision of these Terms is found unenforceable or invalid, that provision will be limited or eliminated to the extent necessary for these Terms to otherwise remain in full force and effect and enforceable. You may not assign, transfer, or sublicense these Terms or any of your rights or obligations under them without our prior written consent. We may assign any of our rights and obligations under these Terms at any time. These Terms, together with the Policies, Terms of Service, and Privacy Policy, constitute the entire agreement of the parties with respect to the Service and supersede all previous written and oral agreements relating to the Service. The failure by either party to enforce any provision of these Terms will not constitute a present or future waiver of such provision or limit such party’s right to enforce such provision at a later time. No agency, partnership, joint venture, or employment is created as a result of these Terms, and you have no authority to bind us. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. The United Nations Convention on the International Sale of Goods does not apply to these Terms.
      4. Disputes. Any dispute or claim relating in any way to your use of the Service will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would. To begin an arbitration proceeding, you must send an email to legal@workstorm.com. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. We will pay all AAA arbitration fees for claims less than $25,000. If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you $1,000 more than the award. We will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines that your claim is frivolous. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. We and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
    16. Miscellaneous. If any provision of these Terms is found unenforceable or invalid, that provision will be limited or eliminated to the extent necessary for these Terms to otherwise remain in full force and effect and enforceable. You may not assign, transfer, or sublicense these Terms or any of your rights or obligations under them without our prior written consent. We may assign any of our rights and obligations under these Terms at any time. These Terms, together with the Policies, Terms of Service, and Privacy Policy, constitute the entire agreement of the parties with respect to the Service and supersede all previous written and oral agreements relating to the Service. The failure by either party to enforce any provision of these Terms will not constitute a present or future waiver of such provision or limit such party’s right to enforce such provision at a later time. No agency, partnership, joint venture, or employment is created as a result of these Terms, and you have no authority to bind us. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees. The United Nations Convention on the International Sale of Goods does not apply to these Terms.

    17. Disputes. Any dispute or claim relating in any way to your use of the Service will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to these Terms. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these Terms as a court would. To begin an arbitration proceeding, you must send an email to legal@workstorm.com. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, which are available at www.adr.org or by calling 1-800-778-7879. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. We will pay all AAA arbitration fees for claims less than $25,000. If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you $1,000 more than the award. We will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines that your claim is frivolous. We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we and you waive any right to a jury trial. We and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.