End User License Agreement
Welcome to Workyard! You are either a “Visitor” by coming to our Workyard website, currently located at www.workyard.com (“Website”) or an “End User” by having been invited or given access to use our Workyard “SaaS Services” (as defined below) by a company that you work for as an employee or independent contractor (our “Customer” or “your “Organization”).
Please carefully review this “End User License Agreement” (or “EULA”) as they contain important information about your legal rights, remedies and obligations regarding your use of the Workyard services as an End User.
As a Visitor, this EULA constitutes a legally binding agreement between you and Workyard governing your access to and use of our Website.
As an End User, this EULA constitutes a legally binding agreement between you and Workyard governing your access to and use of our end-to-end cloud-based technology solution that provides access to Workyard’s “Business Productivity Software” and its various applications through web browsers, desktop clients and mobile apps (“SaaS Services”). Your access to and use of the SaaS Services include your downloading, installing or using our Business Productivity Software and any associated software, APIs or apps supplied by Workyard, including any for which the purpose is to enable you to use the Business Productivity Software and use of any related “Workyard Materials” (as defined below) (collectively, “SaaS Services”).
This EULA also governs your access to and use of our websites and other related software and applications (collectively, with the SaaS Services, the "Services”). When this EULA mentions “Workyard,” “we,” “us” or “our,” it refers to Workyard Holdings, Inc. including its subsidiaries and affiliates. When this EULA mentions “you” or “your,” it refers to you as an End User or Visitor.
For clarification, if you are a Visitor, all references to “Services” below will pertain to you, and if you are an End User, all references to both “SaaS Services” and “Services” will pertain to you.
In addition to this EULA, your access to and use of the Services as an End User or Visitor are governed by: (i) any additional terms from third-party providers described below or applicable to certain programs or services which you or (if applicable) your Organization may elect to use or participate in (“Additional Terms”), and (ii) any other policies applicable to your use of the Services that we make available, each of which is incorporated by reference into and made a part of this EULA.
In addition, any information we collect through your use of the Services is subject to our “Privacy Policy,” which is located at http://www.workyard.com/privacy and also governs your use of the Services. The Privacy Policy, together with this EULA are collectively referred to as the "Agreement."
All references to “Party” or “Parties” means you or us or both you and us. All capitalized terms not defined in this EULA are defined in our Privacy Policy.
IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS AND/OR USE THE SERVICES.
1. General Rules
As a condition of your use of our Services, you acknowledge and agree that:
● You are 18 years of age or older, or if other applicable Laws require you to be older in order to use our Services, then you are the older age under such applicable Law.
● You are able to create a binding legal obligation on behalf of yourself and/or your company and/or employer.
● You are responsible for all content you provide and of your activities when using our Services.
● You will use our Services in compliance with all applicable Laws.
● You will not use our Services to solicit the performance of any activity which infringes or violates our rights or the rights of others.
● You will not use our Services to upload, transmit, or otherwise distribute any objectionable or infringing content, as solely determined by us.
● You may only use the Services using your valid “End User Account” (as defined below) established and maintained by you and in accordance with the Agreement.
2. Changes To The EULA And Entire Agreement
This EULA and any other relevant parts of the Agreement are subject to occasional revision, and if we make any substantive changes, we may notify you by sending you an email to the last email address you provided to us or by prominently posting a notice of the changes within our Services and/or within this EULA. Your continued use of our Services following notice of any changes to our EULA or Privacy Policy, or any Additional Terms or other policies or guidelines, constitutes your acceptance of all such changes.
3. Scope of SAAS Services
Once your Organization has subscribed to the SaaS Services and invited you (or given you access) to use the SaaS Services, you must now set up an End User Account to use the SaaS Services. We will use commercially reasonable efforts to provide complimentary technical support services (customer support) to you as an End Users. Our standard support is available Monday through Friday from 9 a.m. 5 p.m. Pacific Time, excluding major federal holidays. You may contact customer support: (1) via in-app chat support, (2) by emailing us at help@workyard.com or (3) by calling us at the phone number published on our website. We also have available an online 24/7 knowledge base as part of the SaaS Services.
4. Your Account
4.1 In order to use the SaaS Services, you must register by setting up an account (“End User Account”) once your Company has invited you or given you access to use the SaaS Services. You may only create and hold one End User Account for your personal use.
4.2 If you are using the Workyard mobile app, you should set the app’s location data setting to “Always Allow,” which means that the app will automatically track when you enter and exit any geofences (a virtual fence or perimeter around physical locations of project sites) set up by your Organization. This will enable us to generate timecards for the time you worked at certain project sites. For more information on how this works (including how you should and should not turn off the location data setting), go here.
4.3 You are responsible for: (a) submitting truthful and accurate registration information; (b) updating and correcting any information you submitted to create or maintain your End User Account; (c) maintain the accuracy of all such information submitting; and (d) maintaining the confidentiality of your End User Account and login information.
4.4 You are solely responsible for all activities and acts or omissions that occur under your End User Account, regardless of whether by such activities originated from you or another party. You acknowledge and agree that Workyard (including its Representatives) is not responsible or liable in any way for any unauthorized access to your End User Account, or any lost or stolen account information.
4.5 Your Account is solely for your specific individual use and is non-transferable. You cannot sell, transfer, combine, sublicense or otherwise share your End User Account with any other party.
5. Licenses And Use Restrictions
5.1 SaaS Services License. The Workyard SaaS Services are licensed and not sold to End Users. Subject to your compliance with the terms of this Agreement and to your Company’s payment of the SaaS Services fees, and solely for so long as you are permitted by Workyard to use the SaaS Services, Workyard grants to you, during the Term, a limited, non-exclusive, revocable, non-transferable, non-sublicensable end user license to use the SaaS Services, solely for your personal, non-commercial use.
5.2 Workyard Property License. Subject to your compliance with the terms of this Agreement, and solely for so long as you are permitted by Workyard to use the Website and any related Services, Workyard grants to you, during the Term, a limited, non-exclusive, revocable, non-transferable, on-sublicensable visitor user license to use the Workyard Property available to the public on the Workyard website, solely for your personal, non-commercial use.
5.3 Use Restrictions. All rights in the Workyard Property and any other rights not expressly granted to Customer under this Agreement are specifically reserved by Workyard. Except as otherwise specified in this Agreement, End Users and Visitors shall not engage in any of the following acts, and as an organization, shall not permit End Users or any other Representatives to engage in any of the following acts pertaining to the Workyard Property (whether such acts apply to the Business Productivity Software, or all or a portion of the Workyard Property):
(a) make the Workyard Property available to any individual or entity other than authorized End Users or applicable Visitors;
(b) offer to sell, sell, resell, rent or lease the Workyard Property;
(c) attempt to, directly or indirectly, gain or give unauthorized access to the Workyard Property;
(d) directly or indirectly access, or attempt to directly or indirectly access, the Workyard Property in order to (1) build a competitive product or service that is the same or similar, in whole or in part, or (2) copy any features, functions or graphics of the Workyard Property, in whole or in part;
(e) access and/or engage in any use of the Workyard Property in a manner that abuses or materially disrupts Workyard or the property or systems of Workyard’s service providers;
(f) interfere with or disrupt the integrity or performance of the Workyard Property;
(g) modify, distribute, prepare derivative works of, copy, frame, mirror, reverse engineer, reverse assemble, disassemble, decompile or otherwise attempt to decipher any code, in whole or in part, used in connection with the Workyard Property; or
(h) use the Workyard Property for fraudulent purposes or otherwise in violation of applicable “Law” (which means any statute, law, regulation, rule, code, order, common law, judgment or other requirement of any federal, state, local or foreign government, arbitrator, court or tribunal of competent jurisdiction).
6. End User Data License
6.1 The SaaS Services will enable you, as an End User, to enter certain information, content and data (“End User Data”). Data and analytics resulting from or relating to your use of the SaaS Services and/or other Services and consisting of aggregated and anonymized End User Data is referred to in this EULA as “Resultant Data.”
6.2 By providing, posting, uploading, inputting or submitting (“Providing”) your End User Data to the SaaS Services or other Services, you hereby grant to Workyard (and its Representatives and any other authorized licensees) a worldwide, royalty-free, perpetual, non-exclusive, sublicensable and transferable license to process any and all End User Data (which includes without limitation the license to use, distribute, reproduce, display, publish, make derivative works of, etc.) for the purpose of performing its duties and obligations under this Agreement.
6.3 Workyard is not a messaging or data storage service. You acknowledge and agree that you are responsible for any lost or unrecoverable End User Data. Workyard is not responsible for any of your End User Data that you submit through the SaaS Services and/or other Services.
6.4 Content Restrictions. You agree not to use, nor permit any End Users or any other third party to use, the SaaS Services and/or other Services to upload, post, distribute, link to, publish, reproduce, engage in, promote or transmit any of the following:
(a) Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable information or communications of any kind, including without limitation conduct that is excessively violent, incites or threatens violence, encourages “flaming” others or criminal or civil liability under any local, state, federal or foreign law;
(b) Content that would impersonate someone else or falsely represent your identity or qualifications, or that may constitute a breach of any individual’s privacy; is illegally unfair or deceptive, or creates a safety or health risk to an individual or the public;
(c) Investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or spamming or flooding;
(d) Virus, Trojan horse, worm or other disruptive or harmful software or content; and
(e) Content that you do not own or have the right to use without permission from the intellectual property rights owners thereof.
6.5 EXCEPT AS MUTUALLY AGREED UPON IN WRITING BY THE PARTIES, YOU AGREE NOT TO USE THE SAAS SERVICES AND/OR OTHER SERVICES TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION (as defined below). WORKYARD SHALL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SAAS SERVICES AND/OR OTHER SERVICES TO COLLECT MANAGE SENSITIVE INFORMATION.
6.6 “Sensitive Information” means credit or debit card numbers; personal financial account information; Social Security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as, but not limited to, the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act and the Payment Card Industry Data Security Standards.
7. Workyard Property
7.1 Workyard Property. Other than those related to your End User Data, all right, title and interest (including without limitation all Intellectual Property Rights and all other proprietary and related rights) in and to the Workyard Materials (including without limitation the SaaS Services and other Services), Workyard’s confidential information, Resultant Data, Feedback, Workyard names, trademarks and logos, Trade Secrets, and any other content, materials, technology or information contained therein or provided in connection with the Services, in any form or medium, are and will remain the sole and exclusive property of Workyard and/or its licensors (collectively, “Workyard Property”). You acknowledge and agree that, except for your End User Content: (a) you have no ownership rights of any kind and agree not to challenge Workyard’s rights in the Workyard Property, even to the extent such Workyard Property includes usage information, Feedback or Resultant Data created as a result of your or (if applicable) your Organization’s use; (b) you have no rights of any kind with respect to the same except as are specifically granted by Workyard in this Agreement; (c) Workyard reserves all rights not specifically granted under this Agreement; and (d) you understand that there are no implied licenses granted under this Agreement;
7.2 Feedback. Any feedback, suggestions, ideas, questions, or other comments regarding the Services or Workyard Materials provided by you to Workyard (“Feedback”) are the sole property of Workyard. To the extent you own any rights in the Feedback, you agree to assign to Workyard of all of your right, title, and interest in and to the Feedback.
8. End User Obligations And Acknowledgements
8.1 Your System Set-Up. You are solely responsible for determining the appropriate set-up and configuration of the SaaS Services and any other Services to enable your use of all such Services. This also means that you are solely responsible for any computer hardware and system connectivity necessary for you to use all such Services. If you request us (through Customer Support) to assist you in the set-up or configuration of the Services, we make no representations or warranties with respect to any changes we may make or work we may perform on your behalf and at your request.
8.2 End User System. You have and will, at all times during the Term, employ (and retain sole responsibility for) all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) control the content and use of all End User Data and any other information you provide through the Services; (b) secure your information technology infrastructure, including computers, software, databases, electronic systems and networks, whether operated directly by you or through the use of third-party services ("End User Systems"); (c) maintain, operate and manage such End User Systems in accordance with industry standards for purposes of using the Services; (d) securely use your all login credentials and protect against any unauthorized access to such credentials; and (e) ensure and monitor all access to and use of the Services through your Account.
8.3 End User Data Acknowledgement. You agree and acknowledge that you shall be fully responsible to validate the accuracy of all End User Data processed by and any resulting data produced (as a result of End User Data) by the SaaS Services or any other Services.
8.4 Features of the SaaS Services. Certain features of the SaaS Services, including multiplying hours tracked by a monetary figure supplied by your Organization or generating time cards by tracking location data in relation to geofences set up by your Organization, are provided to End Users for your convenience and your reference only. You acknowledge and agree that such features may not accurately reflect the actual calculation of any payment payable to you and are, therefore, not warranted or guaranteed by Workyard to be a payroll calculation or any other payment calculation.
8.5 Third-Party Applications and Content. If you incorporate any third-party applications or other third-party content, you use of any such applications and content is at your sole risk and Workyard shall have no obligations or liability with respect to such use or risks. Further, you as an End User, and not Workyard, shall be solely responsible for any problems or issues arising from use of any such third-party applications, including without limitation any disclosure, modification, deletion or loss of any End User Data on account of such third-party application or content, or any acts or omissions of any third party.
8.6 Compliance with Laws. You, and not Workyard, shall be solely responsible for your compliance with all applicable Laws pertaining to: (a) your use of the SaaS Services and any other Workyard Property; and (b) submission of all End User Data through the Services. You shall hold Workyard harmless, defend and indemnify Workyard from any and all payroll, tax and labor compliance liabilities in accordance with the indemnification section below.
8.7 Conflicts with Others. You as an End User, and not Workyard, shall be solely responsible and liable for any problems, issues or mistakes (including any claims or conflicts between you and your Organization (or its Representatives), another End User or any other third party that arise from use of the SaaS Services, any other Services, or any End User Data inputted or processed, including without limitation any disclosure, modification, deletion or loss of any End User Data for any reason.
9. Workyard Referral Program
9.1 The Workyard Referral Program is offered by Workyard and its Referral Program Partner for our Referrers and Referred Customers.
9.2 The Referral Program terms consist of our Referral Program Rules, as further described below. If you choose to participate in our Referral Program as an End User, you will be a “Referrer” and be governed by these Referral Program Rules, including without limitation those established by our Referral Program Partner’s terms at https://cello.so/terms-and-conditions (collectively, “Rewards Criteria”).
9.3 Participation in the Referral Program is subject to Workyard’s sole discretion and Workyard does not guarantee participation. All Referral Program Rules, Rewards Criteria, distribution and use of Referral Rewards and Referral Credits (including any voiding or retraction thereof) and all other related terms and conditions are determined by Workyard and/or its Referral Program Partner (including termination and changes thereto, for any or no reason) in their sole discretion. Your violation of any applicable rules, terms and conditions may result in termination or retraction of any Referral Awards, as solely determined by us.
Notwithstanding anything to the contrary in the Terms of Service, all participants of the Referral Program will be subject to and governed by the Terms of Service and this EULA (which means your participation in the Referral Program constitutes use of our SaaS Services and Services), as well as our Referral Program Partner’s terms which are deemed “Additional Terms.”
Referrers – Eligibility and Referral Links/Widget
9.4 To be eligible to participate in the Referral Program as a Referrer, you must: (i) be a current Workyard Customer; and (ii) maintain a Workyard account in good standing. Referrers may be End Users or Organizations.
9.5 As a Referrer, Workyard will provide you with a unique “Referral Link” through a “Referral Program Widget” which is placed on the Workyard website, within our SaaS Services and/or elsewhere as we determine. You can make a Referral by sending the Referral Link through an email or sharing the Referral Program Widget to individuals or companies who may be potential Referred Customers. Workyard owns all rights in and to these domains, and may reclaim, deactivate, invalidate or terminate your Workyard Referral Link and/or access to the Referral Program Widget at any time.
Rewards Criteria
9.6 If your Referred Customer satisfies the eligibility requirements and all other Rewards Criteria, including completing the purchase of a Subscription Plan, then you will be eligible to receive a Referral Reward, which is currently in the form of a cash reward.
9.7 As a Referrer, you will be able to view your Referral Rewards via emails if sent from our Referral Program Partner or through the Referral Program Widget as provided by our Referral Program Partner.
Referral Program Restrictions
9.8 As a Referrer, once you have made a Referral through the Referral Program Widget, then you will not participate in any other activities related to the process of the Referred Customer becoming a new Customer of Workyard’s SaaS Services, such as discussions or consummation of such transaction.
9.9 Workyard reserves the right to not proceed with any sale of the Workyard SaaS Services without any liability or obligation to pay any Referral Rewards or any other compensation to the Referrer or Referred Customer.
9.10 Referral Rewards are only valid for one individual per Referred Customer, are not available in addition to any other discounts or promotions, and are not transferable, unless Workyard specifically and expressly states in writing otherwise.
9.11 You agree that you will only make Referrals about Workyard’s SaaS Services free of charge, only for promotional purposes, not pay to advertise the Referral Link or any other information about the Referral Program, and may not pay or provide anything of value to an invited user (e.g., potential Referred Customer) beyond any Referral Credits supplied by Workyard as described in the Program Rules.
9.12 No spamming. You will not “spam” anyone with invitations to sign up for the Workyard SaaS Services, and that you at all times will remain compliant with CAN-SPAM, the TCPA, and other applicable laws, including without limitation mass emailing, texting or messaging people you do not personally know, using automated systems or bots or posting Referral Rewards or Referral Credits offers on event or venue pages without express permission, etc.
9.13 No Misrepresentations. You will not attempt to, directly or indirectly, mislead anyone in connection with the Referral Program.
9.14 No Phishing, etc. You will not engage in phishing or attempting in any way to obtain financial or other personal information, or solicit passwords or personally identifiable information.
10. Unauthorized Access
You acknowledge and agree that you will not allow any unauthorized access to or use of the Business Productivity Software, the SaaS Services, your Account or any other parts of the Workyard Property. You agree to immediately notify us of any actual or suspected unauthorized use of your Account or any other breach of security, including the loss or stealing of your Account or login information. You will immediately: (a) take all reasonable and lawful measures within your respective control necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the SaaS Services, your Account and any other Workyard Property); and (b) immediately notify Workyard (via email and by telephone) of any such activity.
11. Changes To The Services & Pricing
We reserve the right, at any time, to modify, update, suspend, or discontinue any or all of the Services with or without notice to you. You acknowledge and agree that we will not be liable to you or to any third party for any modification, updates, suspension, or discontinuation of the Services or any part thereof. Unless otherwise indicated, any future release, update, or other addition to functionality of the Services shall be subject to this EULA.
12. Term & Termination
This EULA will remain in full force and effect while you use the Services. We may, without any liability to you whatsoever, suspend or terminate your rights to use the Services (including your Account) at any time for any reason in our sole discretion, including for any use of the Services in violation of this EULA. This means we have the right to revoke our consent to your use of the Services, the SaaS Services and/or any other permissions we previously granted to you. Upon termination of your rights under this Agreement, your Account and right to access and use the Services will immediately terminate. Even after your rights under this EULA are terminated, the following provisions of this EULA will remain in effect (e.g., survive the termination of the Terms): Sections 5 through 22, and any other right or obligation of the Parties in this Agreement that, by its nature, sense and context are intended or should survive termination or expiration of this Agreement.
13. Copyright And Other Intellectual Property Infringement Claims
We take the protection of Intellectual Property seriously. Our procedure for handling intellectual property inquiries and complaints can be accessed here. Notwithstanding anything to contrary in this EULA, all references to “Customer” in this linked section mean you as an End User or Visitor.
14. Indemnification
14.1 To the extent permitted by applicable Law, you will defend, indemnify and hold harmless Workyard and its affiliates and each of their respective Representatives, successors and assigns (“Workyard Indemnitees”) from and against all liabilities, losses and expenses, including without limitation reasonable attorneys’ fees and costs, arising from any claim, suit or proceeding brought against a Workyard Indemnitee: (i) claiming that your End User Data infringes or misappropriates any patent, copyright, trademark, trade secret or other proprietary right of any third party; (ii) in connection with your violation of this EULA or any other part of the Agreement; (iii) in connection with your (actual or alleged) gross negligence, willful misconduct, fraud or fraudulent misrepresentations related to this Agreement; or (iv) your violation of applicable Law.
14.2 In the event of a claim triggering your indemnification obligations: (a) we will give you prompt written notice of such claim; (b) you will provide us with sole control of the defense and settlement of such claim; (c) we will provide reasonable information and assistance (at your reasonable expense) for you to settle and defend such claim. Notwithstanding anything to the contrary in this Section, any negotiations relative to the settlement of any such claim intended to bind Workyard shall not be final without our prior written consent. Further, we may participate in or observe the proceedings at our own cost and expense with counsel of our own choosing. Our failure to promptly notify you as to the existence of an indemnifiable claim shall not relieve your indemnification obligations. except to the extent that such failure or delay is prejudicial.
15. Representations And Warranties
You represent and warrant that: (a) you will comply in all material respects with applicable Law related to your use of the Services and all duties and obligations under this Agreement; (b) all End User Data provided directly or indirectly by you can be used by you and your Organization (if applicable), and can be collected and processed by Workyard and its Representatives in accordance with the terms of this Agreement while still in compliance with all applicable Laws; and (c) you give us consent for Workyard and its Representatives to process any and all of your End User Data as permitted in this Agreement; and (d) you are not in the business of, or in the development stages of, manufacturing or marketing programs or products that compete with Workyard or the Business Productivity Software.
16. Disclaimers
16.1 THE SAAS SERVICES AND ALL OTHER SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND WE (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICES, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE; OTHERWISE, THERE IS NO SUCH WARRANTY AVAILABLE.
16.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
16.3 WE DO NOT ENDORSE ANY SPECIFIC PRODUCTS, PROGRAMS, PROCEDURES, OPINIONS OR OTHER INFORMATION THAT MAY BE MENTIONED OR DESCRIBED THROUGH OUR SERVICES. IF YOU RELY ON ANY CONTENT OBTAINED BY YOU THROUGH THE SERVICES, YOU DO SO SOLELY AT YOUR OWN RISK. WORKYARD ASSUMES NO RESPONSIBILITY FOR ANY ACT, OMISSION, ACTIVITY, PRODUCT OR SERVICE THROUGH INDIVIDUALS OR PROGRAMS PROVIDED THROUGH THE SERVICES.
17. Limitation Of Liability
17.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WORKYARD OR ITS REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO AND USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
17.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE TOTAL AGGREGATE LIABILITY, OF WORKYARD AND ITS AFFILIATES (AND EACH OF THEIR RESPECTIVE REPRESENTATIVES, EXCEPT FOR THOSE EXCLUDED IN SECTION 16.3), FOR THE ENTIRE TERM OF THE AGREEMENT (INCLUDING FREE TRIAL, MONTHLY, YEARLY SUBSCRIPTIONS AND ANY RENEWALS) TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) $200 (TWO HUNDRED DOLLARS); OR (B) THE AMOUNTS YOU HAVE PAID TO WORKYARD, IN THE IMMEDIATELY PRECEDING 12-MONTH PERIOD PRIOR TO THE CLAIM, FOR USE OF THE SERVICES, PROVIDED YOU DO NOT HAVE ANY THEN-EXISTING PAYMENT OBLIGATIONS TO WORKYARD. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
17.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY, YOU AGREE THAT OUR SUPPLIERS AND THIRD-PARTY INDEPENDENT CONTRACTORS, CONSULTANTS, AGENTS AND REPRESENTATIVES WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS SECTION 16 AND ANY OTHER RELEVANT TERMS IN THIS AGREEMENT.
17.4 SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
17.5 THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN WORKYARD AND YOU.
18. California Resident Waiver
IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
19. Force Majeure
You agree that we are not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, pandemics, epidemics, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control (collectively, “Force Majeure”). We reserve the right (in our sole discretion) to terminate any or all Services to you or any of our End Users due to any Force Majeure event.
20. Informal Dispute Procedure
If you have any complaints or claims against Workyard or any of its our staff and representatives, we require you to go through our “Informal Dispute Procedure” which can be accessed here. Notwithstanding anything to contrary in this EULA, all references to “Customer” in that linked section mean you as an End User or Visitor.
21. Arbitration
For any formal complaints (after our required Informal Dispute Procedure and other than equitable relief and a few exceptions), we offer an arbitration process which can be accessed here. Notwithstanding anything to contrary in this EULA, all references to “Customer” in these linked sections mean you as an End User or Visitor.
22. Miscellaneous Terms
Our standard miscellaneous terms for this EULA can be accessed here. Notwithstanding anything to contrary in this EULA, all references to “Customer” in these linked sections (as Miscellaneous Terms) and in this Section 23 mean you as an End User or Visitor. A few select terms are repeated below
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED (AS PERMITTED IN THIS AGREEMENT) ON AN INDIVIDUAL PERSON OR ORGANIZATION BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER, END USER OR VISITOR (WHETHER AN INDIVIDUAL OR AN ORGANIZATION) CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER, END USER OR VISITOR (WHETHER AN INDIVIDUAL OR ORGANIZATION)
Time Limit. Notwithstanding any to the contrary in this Agreement, except for those subject to the terms pertaining to “Claims Not Subject to Arbitration” or “Equitable Relief,” any claim or cause of action arising out of or related to Customer’s use of the Services must be filed within one (1) year after such claim or cause of action arose, or else such claim or cause of action will be barred forever
Entire Agreement, Etc. This Agreement embodies the entire agreement and understanding of the Parties and supersedes all prior or contemporaneous written or oral communications or agreements between the Parties regarding this Agreement. No amendments or additions to this Agreement will be binding unless in writing and signed by both Parties. Unless expressly provided in this Agreement, no remedy specified herein is intended to be exclusive of any other remedy, and each and every remedy will be cumulative and in addition to every other right or remedy provided herein or available at law or in equity. No delay or omission by either Party to exercise any right or power it has (in whole or in part) under this Agreement will be construed as a waiver of such right or power. A waiver by either Party of any breach by the other Party will not be construed to be a waiver of any succeeding breach or any other covenant by the other Party. All waivers must be in writing and signed by the Party waiving its rights. This Agreement is for the sole benefit of the Parties under this Agreement and such Parties’ successors and permitted assigns, and nothing herein express or implied shall give or be construed to give any person or entity other than such Parties any legal or equitable rights hereunder.
23. Workyard Electronic Communications To You
The communications between you and Workyard use electronic means, whether you use the Services or send us emails, or whether we post notices on the Services or communicate with you via email. For contractual purposes, you: (a) consent to receive communications from us in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights. See other notice requirements here. Notwithstanding anything to contrary in this EULA, all references to “Customer” in this linked section mean you as an End User or Visitor.
24. Consent to Electronic Records and Signatures
24.1 Consent to Electronic Records and Signatures (“E-Signature(s)”). By using the E-Signature functions of the Services for a particular document or form governing services, sale, lease, exchange, licensing or other transaction (“Transaction”) you are signing the Transaction electronically. You agree your electronic signature is the legal equivalent of your manual signature on the Transaction. You also agree that no third-party verification is necessary to validate your E-Signature, and that the lack of such third-party verification will not in any way affect the enforceability of your E-Signature, or of any resulting agreement between you and the other parties to the Transaction. You also certify to Workyard that if you are signing on behalf of an entity, you are the duly authorized representative of the entity and are authorized to provide the information and submit the Transaction on behalf of the entity. You further understand and acknowledge that your submission of the Transaction will bind the owner and/or entity to this Agreement as of the date of your E-Signature.
24.2 Hardware and Software Requirements. To access, view and retain the signed Transaction documents, you will need (i) a valid working e-mail account and (ii) access to a computer, operating system and telecommunication connections to the Internet capable of receiving, accessing, displaying and either printing or storing the Transaction electronically. You also need browser software that supports 256-bit security encryption. We will notify you of any changes to these requirements that create a risk that may prevent you from receiving the Transaction electronically.
24.3 Withdrawing Consent. You may withdraw consent to E-Signatures at any time by contacting us at help@workyard.com or writing to us at 440 N Barranca Ave #9675 Covina, CA 91723. We will not charge you a fee for withdrawing your consent. If you withdraw your consent, the legal effectiveness, validity and/or enforceability of prior E-Signatures will not be affected. Any withdrawal of your consent will be effective only after we have a reasonable period of time to process your withdrawal.
24.4 Paper Copies: You may request a paper copy of the Transaction by contacting the administrator of the account or your employer, where applicable.
24.5 Changes to E-Mail Address: You must promptly inform us of any change in your e-mail address by contacting us at one of the channels provided above.
24.6 Compliance with law and retention: If you choose to use the E-Signature features of our Services, it is your responsibility to determine whether the E-Signature features are appropriate for your particular use cases and the laws and regulations that apply to you and the signers of your documents. Workyard does not commit to maintaining copies of signed agreements or signature logs separately from the files created during the E-Signature process. You have the sole responsibility to ensure these files are maintained appropriately.
25. Consent to Electronic Records and Signatures
PLEASE CONTACT US AT help@workyard.com IF YOU HAVE ANY QUESTIONS ABOUT THIS EULA.