HomeMy WebLinkAboutWorkWave LLC; 2023-09-07; PSA23-2187FACPSA23-2187FAC
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AGREEMENT FOR CONTRACTOR MANAGEMENT SOFTWARE SERVICES
WORKWAVE LLC
THIS RATIFICATION OF AGREEMENT is made and entered into as of the __________
day of _________________________, 2023, but effective April 5, 2023, ratifying this
(“Agreement”), by and between the City of Carlsbad, California, a municipal corporation ("City")
and WorkWave LLC, a Delaware limited liability company ("Contractor").
RECITALS
A. City required the services of a consultant that is experienced in contractor
management software services.
B. Contractor has the necessary experience in providing services and advice related
to contractor management software services.
C. Contractor has submitted a proposal to City and has affirmed its willingness and
ability to perform such work.
NOW, THEREFORE, in consideration of these recitals and the mutual covenants
contained herein, City and Contractor agree as follows:
1. SCOPE OF WORK
City retains Contractor to perform, and Contractor agrees to render, those services (the
"Services") that are defined in attached Exhibit "A, B and C," which is incorporated by this
reference in accordance with this Agreement’s terms and conditions.
2. STANDARD OF PERFORMANCE
While performing the Services, Contractor will exercise the reasonable professional care and skill
customarily exercised by reputable members of Contractor's profession practicing in the
Metropolitan Southern California area, and will use reasonable diligence and best judgment while
exercising its professional skill and expertise.
3. TERM
The term of this Agreement will be effective for a period of two (2) years from April 5, 2023. The
City Manager may amend the Agreement to extend it for two (2) additional two (2) year periods
or parts thereof. Extensions will be based upon a satisfactory review of Contractor's performance,
City needs, and appropriation of funds by the City Council. The parties will prepare a written
amendment indicating the effective date and length of the extended Agreement.
4. TIME IS OF THE ESSENCE
Time is of the essence for each and every provision of this Agreement.
5. COMPENSATION
The total fee payable for the Services to be performed during the initial Agreement term shall not
exceed fifteen thousand dollars ($15,000) per agreement year. No other compensation for the
Services will be allowed except for items covered by subsequent amendments to this Agreement.
If the City elects to extend the Agreement, the amount shall not exceed fifteen thousand dollars
($15,000) per Agreement year. The City reserves the right to withhold a ten percent (10%)
retention until City has accepted the work and/or Services specified in Exhibit "A."
Incremental payments, if applicable, should be made as outlined in attached Exhibit "A."
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6. STATUS OF CONTRACTOR
Contractor will perform the Services in Contractor's own way as an independent contractor and
in pursuit of Contractor's independent calling, and not as an employee of City. Contractor will be
under control of City only as to the result to be accomplished, but will consult with City as
necessary. The persons used by Contractor to provide services under this Agreement will not be
considered employees of City for any purposes.
The payment made to Contractor pursuant to the Agreement will be the full and complete
compensation to which Contractor is entitled. City will not make any federal or state tax
withholdings on behalf of Contractor or its agents, employees or subcontractors. City will not be
required to pay any workers' compensation insurance or unemployment contributions on behalf
of Contractor or its employees or subcontractors. Contractor agrees to indemnify City within thirty
(30) days for any tax, retirement contribution, social security, overtime payment, unemployment
payment or workers' compensation payment which City may be required to make on behalf of
Contractor or any agent, employee, or subcontractor of Contractor for work done under this
Agreement. At the City’s election, City may deduct the indemnification amount from any balance
owing to Contractor.
7. SUBCONTRACTING
Contractor will not subcontract any portion of the Services without prior written approval of City.
If Contractor subcontracts any of the Services, Contractor will be fully responsible to City for the
acts and omissions of Contractor's subcontractor and of the persons either directly or indirectly
employed by the subcontractor, as Contractor is for the acts and omissions of persons directly
employed by Contractor. Nothing contained in this Agreement will create any contractual
relationship between any subcontractor of Contractor and City. Contractor will be responsible for
payment of subcontractors. Contractor will bind every subcontractor and every subcontractor of
a subcontractor by the terms of this Agreement applicable to Contractor's work unless specifically
noted to the contrary in the subcontract and approved in writing by City.
8. OTHER CONTRACTORS
The City reserves the right to employ other Contractors in connection with the Services.
9. INDEMNIFICATION
Contractor agrees to indemnify and hold harmless the City and its officers, officials, employees
and volunteers from and against all claims, damages, losses and expenses including attorney’s
fees arising out of the performance of the work described herein caused by any negligence,
recklessness, or willful misconduct of the Contractor, any subcontractor, anyone directly or
indirectly employed by any of them or anyone for whose acts any of them may be liable.
The parties expressly agree that any payment, attorney’s fee, costs or expense City incurs or
makes to or on behalf of an injured employee under the City’s self-administered workers’
compensation is included as a loss, expense or cost for the purposes of this section, and that this
section will survive the expiration or early termination of this Agreement.
10. INSURANCE
Contractor will obtain and maintain for the duration of the Agreement and any and all
amendments, insurance against claims for injuries to persons or damage to property which may
arise out of or in connection with performance of the services by Contractor or Contractor’s
agents, representatives, employees or subcontractors. The insurance will be obtained from an
insurance carrier admitted and authorized to do business in the State of California. The insurance
carrier is required to have a current Best's Key Rating of not less than "A-:VII"; OR with a surplus
line insurer on the State of California’s List of Approved Surplus Line Insurers (LASLI) with a rating
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in the latest Best’s Key Rating Guide of at least “A:X”; OR an alien non-admitted insurer listed by
the National Association of Insurance Commissioners (NAIC) latest quarterly listings report.
10.1 Coverage and Limits.
Contractor will maintain the types of coverage and minimum limits indicated below, unless the
Risk Manager or City Manager approves a lower amount. These minimum amounts of coverage
will not constitute any limitations or cap on Contractor's indemnification obligations under this
Agreement. City, its officers, agents and employees make no representation that the limits of the
insurance specified to be carried by Contractor pursuant to this Agreement are adequate to
protect Contractor. If Contractor believes that any required insurance coverage is inadequate,
Contractor will obtain such additional insurance coverage, as Contractor deems adequate, at
Contractor's sole expense. The full limits available to the named insured shall also be available
and applicable to the City as an additional insured.
10.1.1 Commercial General Liability (CGL) Insurance. Insurance written on an
“occurrence” basis, including personal & advertising injury, with limits no less than $2,000,000 per
occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply
separately to this project/location or the general aggregate limit shall be twice the required
occurrence limit.
10.1.2 Automobile Liability. (if the use of an automobile is involved for Contractor's work
for City). $2,000,000 combined single-limit per accident for bodily injury and property damage.
10.1.3 Workers' Compensation and Employer's Liability. Workers' Compensation limits as
required by the California Labor Code. Workers' Compensation will not be required if Contractor
has no employees and provides, to City's satisfaction, a declaration stating this.
10.1.4 Professional Liability. Errors and omissions liability appropriate to Contractor’s
profession with limits of not less than $1,000,000 per claim. Coverage must be maintained for a
period of five years following the date of completion of the work.
10.2 Additional Provisions. Contractor will ensure that the policies of insurance required under
this Agreement contain, or are endorsed to contain, the following provisions:
10.2.1 The City will be named as an additional insured on Commercial General Liability
which shall provide primary coverage to the City.
10.2.2 Contractor will obtain occurrence coverage, excluding Professional Liability, which
will be written as claims-made coverage.
10.2.3 This insurance will be in force during the life of the Agreement and any extensions
of it and will not be canceled without thirty (30) days prior written notice to City sent by certified
mail pursuant to the Notice provisions of this Agreement.
10.3 Providing Certificates of Insurance and Endorsements. Prior to City's execution of this
Agreement, Contractor will furnish certificates of insurance and endorsements to City.
10.4 Failure to Maintain Coverage. If Contractor fails to maintain any of these insurance
coverages, then City will have the option to declare Contractor in breach, or may purchase
replacement insurance or pay the premiums that are due on existing policies in order to maintain
the required coverages. Contractor is responsible for any payments made by City to obtain or
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maintain insurance and City may collect these payments from Contractor or deduct the amount
paid from any sums due Contractor under this Agreement.
10.5 Submission of Insurance Policies. City reserves the right to require, at any time, complete
and certified copies of any or all required insurance policies and endorsements.
11.BUSINESS LICENSE
Contractor will obtain and maintain a City of Carlsbad Business License for the term of the
Agreement, as may be amended from time-to-time.
12.ACCOUNTING RECORDS
Contractor will maintain complete and accurate records with respect to costs incurred under this
Agreement. All records will be clearly identifiable. Contractor will allow a representative of City
during normal business hours to examine, audit, and make transcripts or copies of records and
any other documents created pursuant to this Agreement. Contractor will allow inspection of all
work, data, documents, proceedings, and activities related to the Agreement for a period of three
(3) years from the date of final payment under this Agreement.
13.OWNERSHIP OF DOCUMENTS
All work product produced by Contractor or its agents, employees, and subcontractors pursuant
to this Agreement is the property of City. In the event this Agreement is terminated, all work
product produced by Contractor or its agents, employees and subcontractors pursuant to this
Agreement will be delivered at once to City. Contractor will have the right to make one (1) copy
of the work product for Contractor’s records.
14.COPYRIGHTS
Contractor agrees that all copyrights that arise from the services will be vested in City and
Contractor relinquishes all claims to the copyrights in favor of City.
15.NOTICES
The name of the persons who are authorized to give written notice or to receive written notice on
behalf of City and on behalf of Contractor under this Agreement.
For City For Contractor
Name Brian Bacardi Name Jason Krueger
Title Public Works Superintendent Title
Vice President - Contracting & Corporate Governance
Department Public Works Address 407 S. 27th Ave.
City of Carlsbad Omaha, Nebraska 68131
Address 405 Oak Ave. Phone No. 402-661-7187
Carlsbad, CA 92008 Email Jason.Krueger@workwave.com
Phone No. 760-434-2944
Each party will notify the other immediately of any changes of address that would require any
notice or delivery to be directed to another address.
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16. CONFLICT OF INTEREST
Contractor shall file a Conflict of Interest Statement with the City Clerk in accordance with the
requirements of the City of Carlsbad Conflict of Interest Code. The Contractor shall report
investments or interests as required in the City of Carlsbad Conflict of Interest Code.
Yes No
If yes, list the contact information below for all individuals required to file:
Name Email Phone Number
17. GENERAL COMPLIANCE WITH LAWS
Contractor will keep fully informed of federal, state and local laws and ordinances and regulations
which in any manner affect those employed by Contractor, or in any way affect the performance
of the Services by Contractor. Contractor will at all times observe and comply with these laws,
ordinances, and regulations and will be responsible for the compliance of Contractor's services
with all applicable laws, ordinances and regulations.
Contractor will be aware of the requirements of the Immigration Reform and Control Act of 1986
and will comply with those requirements, including, but not limited to, verifying the eligibility for
employment of all agents, employees, subcontractors and consultants whose services are
required by this Agreement.
18. DISCRIMINATION AND HARASSMENT PROHIBITED
Contractor will comply with all applicable local, state and federal laws and regulations prohibiting
discrimination and harassment.
19. DISPUTE RESOLUTION
If a dispute should arise regarding the performance of the Services the following procedure will
be used to resolve any questions of fact or interpretation not otherwise settled by agreement
between the parties. Representatives of Contractor or City will reduce such questions, and their
respective views, to writing. A copy of such documented dispute will be forwarded to both parties
involved along with recommended methods of resolution, which would be of benefit to both
parties. The representative receiving the letter will reply to the letter along with a recommended
method of resolution within ten (10) business days. If the resolution thus obtained is unsatisfactory
to the aggrieved party, a letter outlining the disputes will be forwarded to the City Manager. The
City Manager will consider the facts and solutions recommended by each party and may then opt
to direct a solution to the problem. In such cases, the action of the City Manager will be binding
upon the parties involved, although nothing in this procedure will prohibit the parties from seeking
remedies available to them at law.
20. TERMINATION
In the event of the Contractor's failure to prosecute, deliver, or perform the Services, City may
terminate this Agreement for nonperformance by notifying Contractor by certified mail of the
termination. If City decides to abandon or indefinitely postpone the work or services contemplated
by this Agreement, City may terminate this Agreement upon written notice to Contractor. Upon
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notification of termination, Contractor has five (5) business days to deliver any documents owned
by City and all work in progress to City address contained in this Agreement. City will make a
determination of fact based upon the work product delivered to City and of the percentage of work
that Contractor has performed which is usable and of worth to City in having the Agreement
completed. Based upon that finding City will determine the final payment of the Agreement.
City may terminate this Agreement by tendering thirty (30) days written notice to Contractor.
Contractor may terminate this Agreement by tendering thirty (30) days written notice to City. In
the event of termination of this Agreement by either party and upon request of City, Contractor
will assemble the work product and put it in order for proper filing and closing and deliver it to City.
Contractor will be paid for work performed to the termination date; however, the total will not
exceed the lump sum fee payable under this Agreement. City will make the final determination as
to the portions of tasks completed and the compensation to be made.
21. COVENANTS AGAINST CONTINGENT FEES
Contractor warrants that Contractor has not employed or retained any company or person, other
than a bona fide employee working for Contractor, to solicit or secure this Agreement, and that
Contractor has not paid or agreed to pay any company or person, other than a bona fide
employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration
contingent upon, or resulting from, the award or making of this Agreement. For breach or violation
of this warranty, City will have the right to annul this Agreement without liability, or, in its discretion,
to deduct from the Agreement price or consideration, or otherwise recover, the full amount of the
fee, commission, percentage, brokerage fees, gift, or contingent fee.
22. CLAIMS AND LAWSUITS
By signing this Agreement, Contractor agrees that any Agreement claim submitted to City must
be asserted as part of the Agreement process as set forth in this Agreement and not in anticipation
of litigation or in conjunction with litigation. Contractor acknowledges that if a false claim is
submitted to City, it may be considered fraud and Contractor may be subject to criminal
prosecution. Contractor acknowledges that California Government Code sections 12650 et seq.,
the False Claims Act applies to this Agreement and, provides for civil penalties where a person
knowingly submits a false claim to a public entity. These provisions include false claims made
with deliberate ignorance of the false information or in reckless disregard of the truth or falsity of
information. If City seeks to recover penalties pursuant to the False Claims Act, it is entitled to
recover its litigation costs, including attorney's fees. Contractor acknowledges that the filing of a
false claim may subject Contractor to an administrative debarment proceeding as the result of
which Contractor may be prevented to act as a Contractor on any public work or improvement for
a period of up to five (5) years. Contractor acknowledges debarment by another jurisdiction is
grounds for City to terminate this Agreement.
23. JURISDICTION AND VENUE
Any action at law or in equity brought by either of the parties for the purpose of enforcing a right
or rights provided for by this Agreement will be tried in a court of competent jurisdiction in the
County of San Diego, State of California, and the parties waive all provisions of law providing for
a change of venue in these proceedings to any other county.
24. SUCCESSORS AND ASSIGNS
It is mutually understood and agreed that this Agreement will be binding upon City and Contractor
and their respective successors. Neither this Agreement nor any part of it nor any monies due or
to become due under it may be assigned by Contractor without the prior consent of City, which
shall not be unreasonably withheld.
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25. ENTIRE AGREEMENT
This Agreement, together with any other written document referred to or contemplated by it, along
with the purchase order for this Agreement and its provisions, embody the entire Agreement and
understanding between the parties relating to the subject matter of it. In case of conflict, the terms
of the Agreement supersede the purchase order. Neither this Agreement nor any of its provisions
may be amended, modified, waived or discharged except in a writing signed by both parties.
26. AUTHORITY
The individuals executing this Agreement and the instruments referenced in it on behalf of
Contractor each represent and warrant that they have the legal power, right and actual authority
to bind Contractor to the terms and conditions of this Agreement.
CONTRACTOR CITY OF CARLSBAD, a municipal
corporation of the State of California WORKWAVE LLC,
a Delaware limited liability company
By: By:
(sign here) Paz Gomez, Deputy City Attorney, Public
Works, as authorized by the City Manager
Rohan Sukhdeo, SVP & General Counsel
(print name/title)
By:
(sign here)
(print name/title)
If required by City, proper notarial acknowledgment of execution by contractor must be attached.
If a corporation, Agreement must be signed by one corporate officer from each of the following
two groups.
Group A Group B
Chairman, Secretary,
President, or Assistant Secretary,
Vice-President CFO or Assistant Treasurer
Otherwise, the corporation must attach a resolution certified by the secretary or assistant
secretary under corporate seal empowering the officer(s) signing to bind the corporation.
APPROVED AS TO FORM:
CINDIE K. McMAHON, City Attorney
BY: _____________________________
Deputy City Attorney
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EXHIBIT “A”
SCOPE OF SERVICES
Contractor shall furnish all materials, equipment and labor necessary to provide the City a full
access subscription to the Lighthouse mobile workforce management software, provided by
WorkWave LLC as a service (SAAS). Scope of services shall include all-inclusive customer
service, training, and complete implementation services.
The City shall maintain a minimum of 20 monthly user licenses during the term of this agreement.
Cost for services shall be charged per user license on a monthly basis. The user license rate
structure provides quantity discounts at the following intervals:
Number of User Licenses Monthly Cost Per License
20 to 39 $25.00
40 to 59 $21.00
60 to 79 $17.00
80 to 99 $15.00
100 or More $13.00
Each user license for Lighthouse mobile workforce management software shall include a full
access subscription to the associated browser-based web module and mobile app capabilities.
Contractor shall provide a dedicated account manager available during business hours, and 24/7
live chat for technical support.
Contractor’s terms of service are attached in this document as Exhibit “B.” In the event of any
conflict between the terms and conditions of the Agreement and the Contractors terms provided
in Exhibit “B,” the terms in the Agreement shall prevail.
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EXHIBIT “B”
CONTRACTOR’S TERMS OF SERVICE
Terms of Service and Subscription Agreement
Last Updated: January 27, 2021 (for PSA with City of Carlsbad, CA)
These Terms of Service and Subscription Agreement (the “Service Agreement”) and the Order
constitute a binding, written agreement by and between WorkWave LLC (“WORKWAVE”) and the
City of Carlsbad, a chartered municipal corporation who will use WORKWAVE’s Services,
Hardware, or Software (“Client”) (each a “Party” and collectively the “Parties”).
By entering into an Order (defined below), by clicking “I Accept” or “I Agree” on any electronic
version of this Service Agreement, by otherwise accessing or using any of WORKWAVE’s
Services, Hardware or Software (as each term is defined below), or by accessing a WORKWAVE
website, Client agrees to be bound by the terms and conditions set forth in this Service
Agreement. If you are an individual entering into this Service Agreement on behalf of any
company, organization or other entity, then you as the individual represent and warrant that you
have the authority to bind such entity to the terms and conditions of this Service Agreement and,
in which case, the term “Client” shall refer to such entity. This Service Agreement includes and
incorporates any initial or subsequent service order, order form, schedule, exhibit, scope of work,
or invoice and regardless of whether it was submitted in written or electronic form (each, an
“Order”).
WORKWAVE’s use any personal information collected in relation to the Services, Hardware,
Software, or any WORKWAVE website is governed by WORKWAVE’s Privacy Policy and Data
Processing Addendum (“DPA”) located at https://www.workwave.com/security/, the terms of
which are incorporated into this Service Agreement by reference.
In consideration of the mutual agreements set forth in this Service Agreement, the Parties agree
as follows:
1. Definitions.
(a) “Affiliate” means, with respect to WORKWAVE, any entity, including without limitation,
corporation, company, partnership, limited liability company or group, that directly, or indirectly
through one or more intermediaries, is controlled by or is under common control with
WORKWAVE. For purposes of this definition, the terms “controlled by” and “under common
control with” means the possession directly or indirectly of the power to direct or cause the
direction of the management and policies of an entity, whether through the ownership of voting
securities, by trust, management agreement, contract or otherwise.
(b) “Client Data” means any information or data that is transmitted, created, collected, stored,
processed or otherwise made available by or to WORKWAVE via the Software or Subscription
Services.
(c) “Documentation” means any online guides or policies provided or made available to Client in
connection with the Subscription Services, Hardware or Software, as the same may be updated
by WORKWAVE, in its sole discretion, from time to time.
(d) “Hardware” means third-party hardware, equipment or other product(s) which is sold or leased
by WORKWAVE to Client as specified in the Order.
(e) “Professional Services” means the training, consulting, technical support or other
professional services WORKWAVE provides to Client, as specified on an Order or SOW.
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(f) “Software” means the object code version of the WORKWAVE software program that
WORKWAVE’s licenses to Client, either as a stand-alone executable program or as pre-installed
in the Hardware, as specified in the Order.
(g) “Subscription Services” means WORKWAVE’s software as a service accessed via the
internet.
(h) “Services” means the Professional Services and Subscription Services.
(i) “Third Party Services” means services or applications provided by a third party which
WORKWAVE may make available to Client as part of the Services or Software.
(j) “Term” means, with respect to the Subscription Services and Software, the subscription term
indicated on the Order as well as any renewal terms designated therein; with respect rented
Hardware, the rental period indicated on the Order; and, with respect to Professional Services,
means the terms specified in the applicable Scope of Work (SOW).
(k) “Termination” means, i) termination of the Agreement, ii) expiration of all applicable Orders,
or iii) acceptance by WORKWAVE of a partial termination of an Order. In the event of a partial
termination of an Order, Client will request in writing and identify the specific Subscription
Services, Software, or rented Hardware that it is requesting WORKWAVE to partially terminate,
and the remaining Subscription Services, Software, or rented Hardware (if any) under this Service
Agreement will continue in full force and effect until the termination of this Service Agreement.
(l) “User” means any individual authorized by Client to use the Services, Hardware or Software
including any User that has been issued a login name and password to access the Services,
Hardware or Software.
2. Services.
(a) During the Term, WORKWAVE will make available to Client the Subscription Services set
forth on the applicable Order, solely for its internal business purposes, and subject to the
restrictions set forth in this Service Agreement and in the Documentation. Each Order will specify
the applicable license term, pricing and licensing metric for Client’s use of the Services. Except
for Client’s agreement, WORKWAVE rejects any terms, conditions or provisions contained in any
purchase order, document or other communication issued to WORKWAVE in connection with an
Order that omit or are additional to or inconsistent with the terms of this Service Agreement or the
applicable Order. Client’s purchase of a subscription to use the Services under this Service
Agreement is not contingent upon the delivery of any future functionality or features, or dependent
on any comments made by WORKWAVE regarding future functionality or features.
(b) WORKWAVE will use reasonable efforts to make the Subscription Services available to Client
in accordance with WORKWAVE’s current Service Level Agreement (“SLA”) attached to this
Agreement as Exhibit “C”.
(c) WORKWAVE will provide the Professional Services as set forth in the applicable Order.
(d) The Parties may enter into additional Orders during the Term of this Service Agreement.
Subject to Client’s compliance with the terms and conditions of this Service Agreement,
WORKWAVE hereby grants Client during the Term a right to access and use the Subscription
Services for its internal business purposes through an Internet site(s) operated and hosted by
WORKWAVE.
(e) WORKWAVE may make available to Client certain Subscription Services on an evaluation,
trial or beta test basis (the “Trial Service”). Client’s use of a Trial Service will be for the term
specified in the applicable Order. WORKWAVE may discontinue a Trial Service at any time in its
sole discretion. WORKWAVE provides the Trial Service to Client “as is” and without any warranty
or indemnity of any kind.
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3. Software.
(a) License. During the Term, and in consideration of the payment of fees included in the Order,
WORKWAVE hereby grants to Client a nonexclusive and nontransferable license and right to use
the Software and any related Documentation solely in accordance with this Service Agreement
and for Client’s internal business purposes. WORKWAVE does not sell the Software or
Documentation to Client, and WORKWAVE always remains the owner of the Software and
Documentation. The license granted in this Section 3 shall commence upon the delivery of the
Software and shall continue for the Term specified in the applicable Order. Client’s use of the
Software and Documentation is further subject to any license terms which are linked to or
otherwise presented to Client upon installation of the Software. Unless otherwise set forth on the
applicable Order or as installed on Hardware delivered in accordance with Section 4,
WORKWAVE will deliver the Software electronically to Client in a format reasonable acceptable
to the Parties. Unless otherwise specified in the relevant Order, all Software is deemed accepted
by Client upon delivery to the Client.
(b) Software Support or Maintenance. In consideration of the payment of fees, sometimes
referred to as annual Software license, support, or maintenance fees and specified in the Order,
WORKWAVE will use reasonable efforts to provide such Software support or maintenance
services for the Software and in accordance with this Service Agreement.
(c) Third-Party Services. When required, Third Party Services will be identified by WORKWAVE
in the applicable Order. WORKWAVE may then make available to Client additional terms, if any,
applicable to such Third-Party Services. Client’s access to and use of Third-Party Services is
governed solely by the terms and conditions of such Third-Party Services. WORKWAVE hereby
represents and warrants that it has the right to use or license such Third-Party Services in
conjunction with the Services or Software provided hereunder. WORKWAVE is not responsible
or liable for, makes no representations or warranties and provides no indemnification with respect
to any aspect of the Third-Party Services. WORKWAVE is not liable for any damage or loss
caused or alleged to be caused by or in connection with enablement, access or use of any such
Third-Party Services. WORKWAVE may, upon ninety (90) days’ written notice to Client,
discontinue any Third-Party Services. In addition, the Subscription Services and Software may
include or incorporate certain components which are licensed or made available under separate
terms by the third-party licensor of such components and/or under the terms of an open source
software license. Any use of a third-party component by Client shall be governed by, and subject
to, the terms and conditions of the separate terms applicable to such third-party component.
4. Hardware. This Section applies only to Orders which include Hardware.
(a) Delivery. Delivery of the Hardware will be made with shipping charges to be paid by Client.
Unless specifically agreed in writing, all shipments of Hardware shall be to the same address set
forth on an Order. Title and risk of loss or damage in the Hardware passes from WORKWAVE to
Client upon the tender of shipment to the applicable carrier at WORKWAVE’ shipping facility (but
title in any rented Hardware will not pass to the Client). Client shall pay all shipping charges,
insurance, duties and taxes required. WORKWAVE may allocate production and deliveries of the
Hardware in its sole and reasonable discretion. Shipping dates are approximate only.
WORKWAVE shall not be liable for any damage, loss, or expense incurred by Client if
WORKWAVE fails to meet a specified shipping date. Notwithstanding anything herein to the
contrary, Client does not by virtue of this Section 4 (or any Order) acquire any right, title or interest
in or to any pre-installed or embedded Software in the Hardware, other than the right to use such
pre-installed or embedded Software solely in the normal operation of the Hardware and in
accordance with any license terms for such Software.
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(b) Installation; Support Services. If the Hardware is subject to installation on a site/location,
WORKWAVE or its appointed engineers must have installed it or supervised directly its
installation, for support services for the Hardware to be available. Client will ensure that the site
in which the Hardware will be installed satisfies WORKWAVE’s specifications. Client shall, at its
expense, obtain all licenses, permits, permission or consents required by any landlord or any
other party applicable to the installation of such Hardware. In consideration of the payment of fees
included in the Order, WORKWAVE will use reasonable efforts to provide support services for the
Hardware (if applicable) and in accordance with this Agreement.
(c) Applicable Terms. All Hardware that is sold or rented to Client is also subject to the third-
party manufacturer’s terms and conditions. Client acknowledges that WORKWAVE merely
acquired the Hardware for Client, and that the proprietary and intellectual property rights to the
Hardware may be owned by parties other than WORKWAVE. Client also acknowledges that,
except for the payment to WORKWAVE for the Hardware, all of Client’s rights and obligations
with respect thereto flow from and to such third parties. Upon reasonable request, WORKWAVE
shall provide Client with copies of all documentation and warranties applicable to Client’s use of
the Hardware that are provided to WORKWAVE and which WORKWAVE is permitted to provide
to Client.
(d) Rented Hardware. WORKWAVE, as lessor of the rented Hardware, leases the Hardware to
Client for the Term set forth in the applicable Order. WORKWAVE shall have all the rights and
remedies available as a lessor under this Service Agreement, the Uniform Commercial Code, or
other applicable law. All rented Hardware shall always be and remain personal property
regardless of how the same may be affixed to any realty or other property. WORKWAVE shall be
permitted to display notice of its ownership of the rented Hardware by affixing an identifying indicia
of ownership. If Client fails to return the rented Hardware after termination or at the end of the
rental period, or the rented Hardware is returned to WORKWAVE in a damaged state (ordinary
wear and tear excluded), then WORKWAVE reserves the right to invoice Client for the total
purchase price of such Hardware at the prevailing rate.
5. Use Restrictions and Acceptable Use. Client’s access and use of the Services and Software
is subject to the following use rights and restrictions:
(a) Use Restrictions. Client, in connection with its use of the Services and Software, shall: (i) use
commercially reasonable efforts to prevent unauthorized access to or use of the Services and
Software, including keeping passwords and user names confidential and not permitting any third
party to access or use Client passwords or accounts for the Services and Software; (ii) be solely
responsible and liable for all activity conducted through its account in connection with the Services
and Software, including all activity of any Users; (iii) promptly notify WORKWAVE if Client
becomes aware of or reasonably suspects any security breach, including any loss, theft, or
unauthorized disclosure or use of Client’s (or any User’s) user name, password, or account; (iv)
provide and maintain systems and materials reasonably required by WORKWAVE to perform the
Services and Software, including, as applicable, but not limited to: Client or third party software,
hardware, systems, routing and network systems, addresses and configurations and key contacts
for problem escalation (collectively the “Client Systems”); (v) use, or otherwise access in
connection with Client’s use, the Services and Software only in accordance with applicable laws
and government regulations; and (vi) comply in all respects with all applicable terms of the Third
Party Services that it accesses or subscribes to, in connection with the Services.
(b) Acceptable Use. Client shall not, and shall ensure that no Users are permitted to: (i) make
the Services and Software available to anyone other than its employees and Users, including as
a service bureau or third-party provider of the Services and Software to third parties; (ii) to the
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extent the Service is provided on a per User basis, allow more than one individual User to access
the Services and Software using a single user password or account; (iii) use the Services and
Software to store or transmit any content, including Client Data, that may be infringing,
defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may
violate intellectual property, privacy, rights of publicity, or other laws, or send spam or other
unsolicited messages in violation of applicable law; (iv) upload to, or transmit from, the Services
and Software any data, file, software, or link that contains or redirects to a virus, Trojan horse,
worm, or other harmful component; (v) attempt to reverse engineer, de-compile, hack, disable,
interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity,
or performance of the Services and Software (including any mechanism used to restrict or control
the functionality of the Services and Software), any third-party use of the Services and Software,
or any third-party data contained therein; (vi) attempt to gain unauthorized access to the Services
and Software, or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or
otherwise circumvent any software protection or monitoring mechanisms of the Services and
Software; or (vii) access the Services and Software in order to build a similar or competitive
product or service or copy any ideas, features, functions, or graphics of the Services or Software.
(c) Suspension. WORKWAVE reserves the right to suspend Client’s (or any User’s) access to
the Services, without incurring any liability as result of such suspension: (i) for scheduled or
emergency maintenance; (ii) if Client breaches this Service Agreement, including failure to pay
any amounts due to WORKWAVE; (iii) if Client breaches this Section 5; (iv) as it deems
reasonably necessary to respond to any actual or potential security concerns; or (v) based on
WORKWAVE’s reasonable belief that Client’s or its Users’ use of the Services is violating
applicable laws, rules or regulations. WORKWAVE will provide advance written notice to Client, ,
of its intent to suspend Services and provide Client an opportunity to cure. Any suspension will
continue until Client has resolved any violation to WORKWAVE’s satisfaction.
(d) Services Monitoring; Software Verification of Use. WORKWAVE may electronically
monitor the Services for the following purposes: (i) support, including diagnostics and corrective
actions; (ii) to determine applicable fees due for Client’s use of the Services; (iii) to verify Client’s
compliance with applicable terms and restrictions set forth in this Service Agreement. If such
monitoring indicates Client or its Users are not in compliance with this Service Agreement, or if
fraudulent activity is suspected, WORKWAVE reserves the right to take such action as it deems
necessary, including, but not limited to, suspension or termination of any User’s access, the
Services, or this Service Agreement. With respect to Software, during the applicable Term and
for two (2) years after its Termination, WORKWAVE will, upon ten (10) business days’ notice,
have the right to audit Client’s use of the Software to confirm compliance with this Service
Agreement. Client will reasonably cooperate with WORKWAVE in the performance of any such
audit and will, without prejudice to any other rights of WORKWAVE under this Service Agreement,
(i) promptly address any non-compliance identified by the audit.
6. Intellectual Property.
(a) Services. As between Client and WORKWAVE, WORKWAVE retains all right, title, and
interest in and to the Services and Software. Nothing herein shall be construed to restrict, impair,
encumber, alter, deprive, or adversely affect the Services and Software or any of WORKWAVE’s
rights or interests therein or any other WORKWAVE intellectual property, information, content,
processes, methodologies, products, goods, services, materials, or rights, tangible or intangible.
All rights, title, and interest in and to the Services and Software not expressly granted in this
Service Agreement are reserved by WORKWAVE.
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(b) Client Data. Client shall retain all right, title and interest in and to, and all intellectual property
rights in, the Client Data. Client hereby grants WORKWAVE a limited, worldwide, non-exclusive
license to access, use, reproduce, electronically distribute, transmit, display, store, archive and
index the Client Data for the purpose of providing the Services and Software to Client and
supporting Client’s use of the Services and Software. Notwithstanding anything in this Service
Agreement to the contrary, and except where expressly prohibited by law, Client agrees that
WORKWAVE may collect and analyze data and other information relating to the provision, use
and performance of the Services and Software (including, without limitation, information
concerning Client Data and data derived therefrom), and WORKWAVE may (during and after the
Term hereof) (i) use such information and data to improve and enhance the Services and Software
(for Client and any other client) and for other development, diagnostic, benchmarking and/or
corrective purposes in connection with the Services, Software and other WORKWAVE offerings,
and/or (ii) use such data solely in aggregate or other de-identified form in connection with
WORKWAVE’s business.
(c) Responsibility for Client Data. Client is solely responsible for the Client Data that Client and
its authorized Users upload, publish, display, link to, or otherwise make available via the Services
and Software.
(d) Feedback. To the extent Client or any of its Users offers WORKWAVE any feedback,
comments or suggestions regarding the Services, Hardware or Software, (the “Feedback”), Client
irrevocably assigns to WORKWAVE all right, title and interest in and to the Feedback.
WORKWAVE may freely use or exploit Feedback for any lawful purpose.
7. Representations and Warranties.
(a) Mutual Representations. Each Party represents and warrants to the other that: (i) its
execution and performance of this Service Agreement will not violate any provision of law, rule,
regulation to which such Party is subject; (ii) it will comply with all laws, rules and regulations
pursuant to which such Party conducts its business; (iii) it has all requisite corporate power and
authority to execute, deliver, and perform its obligations under this Service Agreement; (iv) the
execution, delivery, and performance of this Service Agreement has been duly authorized by such
Party; (v) no approval, authorization, or consent of any governmental or regulatory authority is
required to be obtained by it in order for it to enter into and perform its obligations under this
Service Agreement; and (vi) the signatory to this Service Agreement possesses all necessary
authority to enter into this Service Agreement.
(b) WORKWAVE Representations. WORKWAVE further warrants that: (i) the Services will be
performed in a professional and workmanlike manner; and (ii) the Subscription Services and
Software will conform in all material respects with applicable Documentation made available by
WORKWAVE to Client in connection with the applicable Order.
(c) Client Representations. Client represents and warrants that: (i) the Client Systems and the
Client Data will be in compliance with all laws, rules, and regulations; (ii) Client is solely
responsible for providing to WORKWAVE sufficient rights to use the Client Systems and Client
Data; (iii) Client’s processing instructions to WORKWAVE with respect to the Client Systems and
Client Data do not violate the rights of any third party or any law, rule, or regulation; and (iv) in
connection with Client’s use of the Services and Software, as well as WORKWAVE’s provision of
the Services or Software, Client has obtained all consents, authorizations, or lawful bases and
taken any other steps required by applicable law to collect, store, disclose, transfer (including,
transferring between two countries as provided in this Service Agreement and the DPA), and use
any personally identifiable information included in Client Data uploaded or used in connection with
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Client’s use of the Services and Software in compliance with such law. Client specifically
acknowledges and agrees that, except as may be required under applicable law, WORKWAVE
has not and is not expected to provide Client with any analysis, interpretation or advice regarding
the compliance of any aspect of the Client Data or Client Systems with any third-party rights or
laws, rules, or regulations. Upon request, Client shall provide reasonable proof of compliance with
the provisions set forth in this Service Agreement and WORKWAVE shall have no obligation to
provide Services and Software where WORKWAVE reasonably believes that Client has not so
complied.
(d) Disclaimer. THE SERVICES, HARDWARE AND SOFTWARE ARE PROVIDED BY
WORKWAVE “AS IS.” EXCEPT WHERE SUCH DISCLAIMER IS PROHIBITED BY APPLICABLE
LAW, WORKWAVE DISCLAIMS ALL WARRANTIES, CONDITIONS AND OTHER TERMS,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY,
CONDITION OR OTHER TERM OF SATISFACTORY QUALITY, MERCHANTABILITY,
ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE,
CORRESPONDENCE TO DESCRIPTION OR INTELLECTUAL PROPERTY INFRINGEMENT
AND WORKWAVE HEREBY EXPRESSLY DISCLAIMS ANY OF THE FOREGOING.
WORKWAVE DOES NOT REPRESENT OR WARRANT THAT (I) THE SERVICES, HARDWARE
AND SOFTWARE WILL OPERATE ERROR FREE, (II) CLIENT’S USE OF THE SERVICES,
HARDWARE AND SOFTWARE WILL BE UNINTERRUPTED OR (III) ALL DEFECTS WILL BE
IDENTIFIED, REPRODUCIBLE OR RESOLVED. SUCH WARRANTIES, CONDITIONS OR
OTHER TERMS SHALL NOT BE ENLARGED, DIMINISHED OR OTHERWISE AFFECTED BY
THE RENDERING OF ANY ADVICE OR SERVICE BY WORKWAVE IN CONNECTION WITH
THE SERVICES, HARDWARE AND SOFTWARE OR BY ANY IMPLIED WARRANTY,
CONDITION OR OTHER TERM ARISING OUT OF ANY COURSE OF DEALING, BY STATUTE,
OR BY PERFORMANCE, CUSTOM OR USAGE OF TRADE.
8. Fees.
Client agrees to pay for the Services, Hardware and Software in accordance with the rates set
forth in the applicable Order. Unless otherwise specified on an Order, all Fees are payable in
United States Dollars (USD). Fees for Services, Hardware and Software are exclusive of all
service, sales, use, and value-added taxes, duties, levies, or other fees, if any (collectively,
“Taxes”). Client is responsible for all Taxes (except for taxes on WORKWAVE’s net income) which
may be assessed or levied by any governmental authority with respect to the Services, Hardware
and Software provided by WORKWAVE to Client pursuant to this Service Agreement.
WORKWAVE may increase the price of the Subscription Services, Software, or rented Hardware
after completion of the initial Term, but not more than once per year, by providing Client with
written notice of such increase at least sixty (60) days prior to the start of the upcoming renewal
Term. Any amount due to WORKWAVE hereunder will be due and payable via electronic funds.
Invoices are due upon receipt, or in accordance with the applicable payment terms on the Order.
Invoices will be transmitted electronically pursuant to WORKWAVE’s invoicing procedures. If part
of an invoice is in dispute, Client agrees to pay the undisputed portion of the invoice and make a
note on the invoice regarding the disputed portion within thirty (30) days from the date of invoice,
otherwise Client will be deemed to agree to such charges and WORKWAVE will not be subject to
making adjustments to charges or invoices.
9. Confidentiality and Proprietary Information; Data Privacy and Security.
(a) Confidential Information. Each Party may disclose (the “Discloser”) confidential and
proprietary information (“Confidential Information”) to the other Party (the “Recipient”). In each
such case, the Recipient shall hold such Confidential Information in confidence and shall not
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disclose such Confidential Information except to a Party’s employees or agents who have a need
to know such Confidential Information in order to perform such Party’s obligations under this
Service Agreement. Neither Party shall have any rights in the other Party’s Confidential
Information and where possible, shall return or destroy all such Confidential Information upon the
Termination or expiration of this Service Agreement.
(i) Client’s Confidential Information shall include Client Data.
(ii) WORKWAVE’s Confidential Information shall include the computers, systems and software
operating the Service and all Documentation, development tools, phone numbers, know-how and
data related thereto, and any derivative works thereof as well as physical property, analytical
procedures, techniques, skills, ideas, models, research, development, trade secrets, or business
affairs of WORKWAVE or its employees, suppliers or agents.
(b) Client Data. With respect to Client Data, upon expiration or Termination of this Service
Agreement for any reason, WORKWAVE will return the Client Data in raw form to Client in a
generally recognized format mutually agreed to with Client. Notwithstanding the foregoing, the
Parties acknowledge that WORKWAVE shall not be required to return to Client or destroy those
copies of Confidential Information residing on WORKWAVE’s backup, disaster recovery, or
business continuity systems and the obligations hereunder with respect to such Confidential
Information shall survive until such Confidential Information is destroyed.
(c) Exceptions. Notwithstanding any other term hereof, the term “Confidential Information” shall
not include information that: (i) was already in the lawful possession of the Recipient prior to
receipt thereof, directly or indirectly, from the Discloser; (ii) lawfully becomes available to
Recipient on a non-confidential basis from a source other than Discloser that is not under an
obligation to keep such information confidential; (iii) is generally available to the public other than
as a result of a breach of this Service Agreement by Recipient or its representative(s); or (iv) is
subsequently and independently developed by employees, consultants or agents of the Recipient
without reference to the Confidential Information disclosed hereunder. In addition, a Party shall
not be considered to have breached its obligations by disclosing Confidential Information of the
other Party as required to satisfy any request of a competent governmental body provided that,
promptly upon receiving any such request and to the extent that it may legally do so, such Party
advises the other Party of the request prior to making such disclosure in order that the other Party
may interpose an objection to such disclosure, take action to assure confidential handling of the
Confidential Information, or take such other action as it deems appropriate to protect the
Confidential Information.
(d) Security Practices. WORKWAVE uses industry-standard administrative, technical, physical,
and other safeguards (the “Security Program”) to preserve the Client Data. A copy of
WORKWAVE’s current Security Program can be found at https://www.workwave.com/security/.
(e) Privacy Policy; Personal Data Processing. WORKWAVE handles all Client Data in
accordance with its privacy policy (the “Privacy Policy”). A copy of WORKWAVE’s current Privacy
Policy can be found at https://www.workwave.com/security/. In addition, and unless otherwise
separately agreed to by the Parties, to the extent that WORKWAVE is processing Client Data that
relates to an identified or identifiable natural person that is protected as personal data under
applicable data protection laws and regulations of the European Economic Area and its member
states, Switzerland, or the United Kingdom, the Parties agree to comply with the Data Processing
Addendum found at https://www.workwave.com/security/.
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(f) California Public Records Act. Client is subject to the California Public Records Act and the
California Civil Discovery Act (collectively “Disclosure Acts”), and this Section 9 is not intended to
impede or impair Client’s requirements or obligations under the Disclosure Acts.
10. Reserved.
11. Limited Warranty and Limitation of Liability.
(a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7, WORKWAVE MAKES NO EXPRESS
OR IMPLIED WARRANTIES, AND WORKWAVE EXPRESSLY DISCLAIMS ANY IMPLIED
WARRANTIES, CONDITIONS OR OTHER TERMS OF SATISFACTORY QUALITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE TO
DESCRIPTION OR NON-INFRINGEMENT. WORKWAVE EXPRESSLY DENIES ANY
REPRESENTATION, WARRANTY, CONDITION OR OTHER TERM ABOUT THE ACCURACY
OR CONDITION OF DATA OR THAT THE SERVICES, HARDWARE OR SOFTWARE OR
RELATED SYSTEMS WILL OPERATE UNINTERRUPTED OR ERROR-FREE.
(b) WORKWAVE SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR , LOST DATA
OR LOST PROFITS, COST OF CAPITAL, COST OF COVER, OR SERVICE INTERRUPTIONS,
FROM THE USE OF OR INABILITY TO USE THE HARDWARE, SOFTWARE OR THE
SERVICES, IRRESPECTIVE OF WHETHER SUCH DAMAGES CONSTITUTE DIRECT OR
INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL
DAMAGES AND REGARDLESS OF WHETHER THE DAMAGES WERE FORESEEABLE OR
WHETHER A PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, THESE EXCLUSIONS SHALL APPLY EVEN IN
THE EVENT OF A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
(c) THE TOTAL LIABILITY OF WORKWAVE FOR ANY REASON, SHALL BE LIMITED TO
WORKWAVES LEVELS OF INSURANCE, UNDER THE ORDER APPLICABLE TO THE EVENT
GIVING RISE TO SUCH ACTION. FOR THE AVOIDANCE OF DOUBT, AND IN RELATION TO
THE INSURANCE PROVISIONS UNDER THE AGREEMENT, CLIENT WILL NOT FILE ANY
CLAIM WITH WORKWAVE’S INSURANCE CARRIERS WITHOUT THE PARTIES FIRST
DISCUSSING OTHER POTENTIAL REMEDIES UNDER THE AGREEMENT AND OBTAINING
WRITTEN APPROVAL FROM WORKWAVE PRIOR TO EACH INSTANCE OF ANY POTENTIAL
CLAIM BEING FILED. THE LIMITS ON LIABILITY IN THIS SECTION SHALL APPLY IN ALL
CASES INCLUDING IF THE APPLICABLE CLAIM ARISES OUT OF BREACH OF EXPRESS
OR IMPLIED WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT
PRODUCT LIABILITY, AND EVEN IF THE PARTY HAS BEEN ADVISED THAT SUCH
DAMAGES ARE POSSIBLE OR FORESEEABLE. THE LIMITATIONS OF LIABILITY REFLECT
THE ALLOCATION OF RISK BETWEEN THE PARTIES. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE LIMITATIONS SPECIFIED IN THIS SECTION 11 SURVIVE AND
APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS SERVICE AGREEMENT IS
FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(d) Nothing in this Service Agreement limits any liability for: (i) death or personal injury caused by
a Party’s negligence; (ii) gross negligence, willful misconduct, fraud or fraudulent
misrepresentation; or (iii) any liability which cannot be excluded by applicable law.
(e) Force Majeure. Neither Party shall be liable for delays and/or defaults in its performance
(other than Client’s obligation to pay undisputed fees) due to causes beyond its reasonable
control, including, but without limiting the generality of the foregoing: acts of God or of the public
enemy; fire or explosion; flood; stability or availability of the Internet; telecommunication system
failure; war; technology attacks; acts of terrorism; riots; embargoes; quarantine; viruses;
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pandemic; strikes; total or partial failure of transportation, utilities, delivery facilities, or supplies;
acts or requests of any governmental authority; or any other cause beyond its reasonable control,
whether or not similar to the foregoing (“Force Majeure Event”). Nothing in this Section 11 shall
limit WORKWAVE’s obligations regarding disaster recovery services provided in connection with
the Services.
12. Export Compliance, Government Use, and Other Regulations.
(a) The Services and Software may be subject to the trade laws and regulations including, but not
limited to the Export Administration Regulation (EAR) and the sanctions program administered by
the United States Government Office of Foreign Assets Control (OFAC). Client represents and
warrants that it is not owned or controlled by any person or entity on the OFAC Specially
Designated Nationals List.
(b) Client shall not export, re-export or release, directly or indirectly, or otherwise use the Services
and Software in or to any country or jurisdiction to which the export, re-export or release of the
same (i) is prohibited by applicable law, regulation, or to any country which is the subject of an
embargo, or to any individual on a Specially Designated Nationals List; and (ii) without first
obtaining any licenses and permits which may be required under the applicable export laws.
(c) WORKWAVE and Client mutually represent and warrant to one another that each complies
with those laws applicable to their respective roles in the provisioning of the Services and this
Service Agreement in the countries in which WORKWAVE operates including, as applicable, the
United States Foreign Corrupt Practices Act, the UK Bribery Act 2010, and those laws and
regulations applicable to human trafficking and slavery.
13. Administrative Provisions.
(a) Equitable Relief. Unless otherwise specified in this Service Agreement, all rights, remedies
and powers of a Party are irrevocable and cumulative, and not alternative or exclusive, and are
in addition to all other rights, remedies and powers given under this Service Agreement or any
laws now existing or subsequently enacted. Client acknowledges and agrees that if it breaches
any of the licensing or confidentiality obligations under this Service Agreement, WORKWAVE
may suffer immediate and irreparable harm for which monetary damages alone are not a sufficient
remedy, and that, in addition to any other remedies WORKWAVE may have, WORKWAVE is
entitled to seek injunctive relief, specific performance or any other form of relief in a court of
competent jurisdiction, including, but not limited to, equitable relief, to remedy the breach or
threatened breach by Client and to enforce this Service Agreement.
(b) Severability; Waiver. If any provision of this Service Agreement is declared void or
unenforceable, then the provision is automatically amended to the minimum extent required to
make it valid, legal, enforceable and nearest to the original intent, and the other provisions remain
in full force and effect. No failure or delay by a Party to exercise any right or remedy provided
under this Service 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.
The waiver of a breach does not operate as a waiver of any subsequent breach.
(c) Interpretation; Captions. If an ambiguity or question of intent arises, this Service Agreement
will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will
arise for or against any Party by virtue of the authorship of any of the provisions of this Service
Agreement. The captions and headings used in this Service Agreement are used for convenience
only and are not to be given any legal effect.
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(e) Governing Law.
The Parties acknowledge and agree that neither the Uniform Computer Information Transactions
Act nor the United Nations Convention for the International Sale of Goods shall apply to this
Service Agreement.
(f) Third Party Rights. Except as expressly provided in this Agreement relative to WORKWAVE’s
Affiliates’ rights to enforce the terms of this Agreement against Client, there are no third-party
beneficiaries to this Service Agreement.
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SERVICE LEVEL AGREEMENT
Last Updated: November 1, 2020, and also found here at https://teamsoftware.com/legal/sla/
Subscription Services Availability
TEAM will use commercially reasonable efforts to ensure the Subscription Services maintain a Services Availability at least 99.9% of the time. As used herein, “Services Availability” means the percentage of a particular month (based on a 24-hour day for the number of days in the subject month) that the Subscription Services are
available for access by Client and its Users.
Services Availability does not include, and TEAM will not be obligated or liable as a result thereof: (a) the negligence, or acts or omissions of Client; (b) a Force Majeure Event; (c) Scheduled Maintenance (as described below) or emergency maintenance; or (d) any Third Party Services, including those provided by TEAM’s third-party hosting provider.
Subscription Service Credits
The calculation of Subscription Services unavailability begins the time an Incident is logged by Client with TEAM to report a service level failure (“Unavailability Period”); provided that TEAM, in its reasonable determination,
confirms that the unavailability was caused by TEAM. An “Incident” is hereby defined as a known, unplanned interruption to a Subscription Service. The Unavailability Period shall end when TEAM has restored accessibility to the Subscription Service.
In the event the Services Availability for the Subscription Services is less than 99% due to a cause related solely to the Subscription Services, TEAM shall provide the following service level credit:
1.Client shall be entitled to a pro rata credit against all monthly recurring fees as detailed in
the applicable Services Schedule for the affected Service, including all associated session, usage, per-employee, and storage fees, based on the percentage of Service Availability achieved for any given month, subject to the claims process below.
2.To claim a service level failure credit (“Service Credit”) Client must file a claim withinfive (5) business days of the end of the claimed Unavailability Period. Claims may be filed via email at accounting@teamsoftware.com. The applicable credit for any timely filed claim, if any, shall be reflected by TEAM to Client on the next billing cycle following the date on which the properly submitted claim is received and verified. The maximum monthly credit will be no greater than 15% of the total fees for the
applicable Service charge in any month. In no event shall Client be provided a Service Credit in cash, refund, or any other form other than a credit against charges for the Subscription Service.
Scheduled Maintenance
TEAM will provide Client a minimum of 48 hours’ notice of planned maintenance work that is considered to carry any risk of service interruption. The scheduling of any planned maintenance activity will seek to minimize disruption and will avoid periods of high activity
TEAM will use reasonable efforts to provide Client with notice of any unplanned maintenance giving due regard to the circumstances and risks associated with any delay required to provide advanced notice.
PSA23-2187FAC; Exhibit "C"
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DocuSign Envelope ID: 42113BE6-1B95-4450-83D9-77D59B0EC929
DocuSign Envelope ID: 42113BE6-1B95-4450-83D9-77D59B0EC929
DocuSign Envelope ID: 42113BE6-1B95-4450-83D9-77D59B0EC929
DocuSign Envelope ID: 42113BE6-1B95-4450-83D9-77D59B0EC929
DocuSign Envelope ID: 42113BE6-1B95-4450-83D9-77D59B0EC929