Last Updated: December 21, 2022
THESE TERMS OF SERVICE (“Agreement“) CONSTITUTE A BINDING CONTRACT BETWEEN THE APPLICABLE WORKIZ ENTITY (“WORKIZ“) AND THE MERCHANT ENTITY (“PRO“) THAT ENTER(ED) INTO THE SALES ORDER (DEFINED BELOW).
A “Sales Order” means as the case may be: (a) the offline sales order form (in)to which this Agreement is attached or incorporated, and which is executed by both parties (“Offline Form“); or (b) the Workiz online sales web form, which is submitted by the Pro (“Online Form“). References herein to the “Agreement” shall be deemed to include the Sales Order.
BY ENTERING INTO THE SALES ORDER, OR BY OTHERWISE ACCESSING OR USING THE SERVICE (DEFINED BELOW), PRO ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “
“): (a) THIS AGREEMENT, AND (b) OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE STATED TO BE INCORPORATED INTO, AND MADE A PART OF, THIS AGREEMENT BY REFERENCE.
For the avoidance of doubt, in the case of the Sales Order being an Online Form, then:
(a) references herein to “Workiz” shall mean Workiz, Inc.;
(b) the individual who submitted the Online Form represents that he/she has the authority to act on behalf of the Pro, and to bind the Pro to this Agreement; and
Workiz reserves the right to make changes to these terms and conditions at any time by posting the changed version at https://www.workiz.com/terms-and-conditions/. (Workiz may – but is not obligated to – also provide notice through a pop-up or banner within the Software, by sending an email to any address Pro may have used to register for the Software, or through other similar mechanisms.) Such changes will be effective ten (10) days after such posting, and Pro’s continued use of the Service thereafter shall constitute Pro’s acceptance of such changes. In such cases, Workiz will also update the “Last Updated” date and “Version” number set forth above. Please check the above webpage regularly for any changes to this these terms and conditions.
- DEFINITIONS AND INTERPRETATION
These Terms contains a range of capitalized terms, some of which are defined in these Section, and some of which are defined elsewhere. The Section and sub-Section headings in these Terms are for convenience of reading only, and may not to be used or relied upon for interpretive purposes.
Affiliate” means, with respect to either party, any person, organization or entity controlling, controlled by, or under common control with, such party, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
“Consumer” means the Pro’s end user who engages the Pro via the Services.
“Content” means any text, data, information, files, images, graphics, sounds, videos, code, audio clips, links, and/or other similar materials.
“Feature” means any module, tool, functionality, or feature of the Service (including without limitation the voicemail services, text messages services, transcription services, call recording and tracking services, and phone masking services) provided or made available directly by Workiz or via a Third Party App (defined below).
“Free User” means an employee or contractor of Pro who does not have Pro User access to the Service, but can be assigned to jobs, receive and respond to notifications, and view job reports.
“Intellectual Property” means any and all inventions, invention disclosures, discoveries, improvements, works of authorship, technical information, data, databases, know-how, show-how, designs, ideas, drawings, logos, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, software (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property or technology, in any format and media, anywhere in the world.
“Intellectual Property Rights” means any and all rights, titles, and interests (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) in and to Intellectual Property, including without limitation patents, copyrights and similar authorship rights, moral (and similar personal) rights, mask work rights, data and database rights, trade secret rights and similar rights in confidential information and other non-public information, design rights, industrial property rights, trademark, service mark, trade name, trade dress and similar branding rights, as well as: (i) all applications, registrations, renewals, reexaminations, extensions, continuations, continuations-in-part, provisionals, substitutions, divisions or reissues of or for the foregoing; and (ii) all goodwill associated with the foregoing.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction.
“Pro Content” means any Content inputted or uploaded to the Service, or transmitted through the Service, by or on behalf of Pro (such as SMS messages sent by Pro to its clients).
“Pro User” means an employee, contractor, agent, representative or consultant of Pro whom the Pro authorizes to access and use the Service via the Account (defined below), and to perform administrative tasks such as scheduling, dispatching, and invoicing.
“Service” means Workiz’s proprietary field service management (FSM) software-as-a-service, as operated by Workiz’s proprietary platform and other Intellectual Property.
“Service Package” means the volume (such as number of Pro Users) and Feature permissions purchased under (and specified in) the Sales Order.
“Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor Law; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA“), and Pro also agrees that Workiz is not acting as Pro’s Business Associate or subcontractor (as such terms are defined under HIPAA); (iii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (iv) other information subject to regulation or protection under specific Laws, such as the United States’ Gramm-Leach-Bliley Act (or related Laws); (v) social security numbers, national insurance numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic Laws.
“Site” means https://www.workiz.com/
“Third Party Apps” means those third party online applications and platforms that are offered via the Services, or to which Pro integrates the Service (if applicable).
“Update” means an upgrade or update (such as a fix or patch) to or of the Service, excluding new Features.
“Workiz App” means Workiz’s proprietary mobile application for use in connection with the Service.
“Workiz Content” means any Content (excluding Pro Content) appearing or made available on or in the Service. Unless the context requires otherwise, references herein to the “Service” shall be deemed to include the Workiz App.
In order to access the Service, Pro is required to register for an account by submitting the information requested in the applicable web form or interface (“Account“). Under such Account, Pro may be required to set up access credentials for each of its Pro Users, and the Service may also allow Pro to configure different permission levels among various Pro Users. Pro represents and warrants, on behalf of itself and its Pro Users and/or Free Users (if applicable), that all information submitted during the registration process is, and will thereafter remain, complete and accurate.
SUBSCRIPTION RIGHTS AND RESTRICTIONS
- Subscription. Subject to the terms and conditions of this Agreement, Workiz grants Pro a limited, non-exclusive, non-assignable, non-sublicensable license and right, during the Term (defined below), to do the following (collectively, the “Subscription“):
- (a) access and use the Service for Pro’s own internal end-use business purposes; and
- (b) download and use the Workiz App on devices owned or controlled by Pro Users.
The Subscription shall be subject to the corresponding Service Package, as well as any other limitations or conditions specified in the Sales Order. Use of the Workiz App may be subject to additional licensing terms (“App EULA“).
- Free Trial. For each Subscription, Workiz may offer a free trial period (the default is 7-day, unless configured otherwise by Workiz) (“Free Trial” and “Free Trial Period“) prior to charging for the Fees. The Free Trial, if any, shall commence on the date that Pro commences access or use of the Service, and will terminate at the end of the Free Trial Period, or sooner if: (a) Pro proceeds to begin paying the applicable Fees, (b) Pro requests to cancel the Subscription, or (c) the Free Trial is terminated by Workiz, in its sole discretion. Upon termination of the Free Trial, and unless Pro has cancelled the Subscription or Workiz has terminated the Free Trial, the Fees shall become immediately due and payable (and if no payment or billing information have been provided, Pro shall, and may be required, to provide such information). Free Trials are permitted solely for Pro to determine whether to proceed to a paid Subscription. Free Trials may not include all Features. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WORKIZ AND WORKIZ AFFILIATES WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS OR LIABILITIES WITH RESPECT TO FREE TRIALS, AND WORKIZ HAS THE RIGHT TO TERMINATE A FREE TRIAL AT ANY TIME AND FOR ANY REASON.
- Restrictions. As a condition to the Subscription, Pro shall not do (or permit or encourage to be done) any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Service; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Service to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Service; (d) modify, alter, adapt, arrange, or translate the Service; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Service; (f) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Service; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Service; (h) make a derivative work of the Service, or use it to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of devices or users that directly access or use the Service (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the Subscription; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Service by Pro; or (l) take any action that imposes or may impose (as determined in Workiz’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Service, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure. References in this paragraph to the “Service” shall also be deemed to include Workiz Content.
- Reservation of Rights. For the avoidance of doubt, the Service (including any copies thereof) is only licensed hereunder, and no title in or to the Software (or such copies) passes to Pro. Any rights not expressly granted herein are hereby reserved by Workiz and its licensors, and, except for the Subscription, Pro is granted no other right or license to the Service, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
- Hosting and Availability. The Service will be hosted by a third party hosting services provider selected by Workiz from time to time (each, a “Hosting Provider“), and accordingly the availability of the Service shall be in accordance with the Hosting Provider’s then-current uptime commitments. In the event Workiz decides to host the Service internally on Workiz’s own servers under this Agreement, then, at the written request of Pro, the parties agree to negotiate in good faith an addendum to this Agreement to address Service uptime availability.Get full access for 7-day, no credit card required!
The Service is not intended to, and will not, operate as a data storage or archiving product or service, and Pro agrees not to rely on the Service for the storage of any Pro Content whatsoever. Pro is solely responsible and liable for the maintenance and backup of all Pro Content.
As between Pro and Workiz, Pro is solely responsible and liable for (and agrees to hold harmless and release Workiz and all Workiz Affiliates from) all Pro Content, and for its use of the foregoing, as well as for the consequences of inputting, uploading, or transmitting Pro Content (including without limitation, for obtaining any licenses, permissions, consents, approvals, and authorizations from individuals appearing therein), and for the way in which it is used by others. Pro hereby represents and warrants that: (a) its Pro Content does not, and will not, infringe, misappropriate, or violate any third party’s Intellectual Property Rights, privacy rights, or any Law; (b) its Pro Content is not, and will not be, disparaging, libelous, threatening, offensive, harassing, deceptive, abusive, promoting of violence, illegal drugs, illegal arms trafficking, or illegal gambling, and does not, and will not, contain obscenity or pornography, create any risk to a person’s safety or health, impersonate another person, compromise national security, or interfere with an investigation by law enforcement; (c) its Pro Content does not, and will not, contain any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Service; (d) it has obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, approvals, and authorizations required in connection with Pro Content; and (e) the content, type and quantity of Pro Content has not been authorized by Workiz and is uploaded to the Service at Pro’s sole risk and discretion. Unless specifically requested by the Service, or strictly required for use of the Service, Pro represents and warrants that Pro Content will not include any Sensitive Data.
THIRD PARTY CONTENT AND APPS
Workiz reserves the right to remove, modify, and/or add Features at any time, without any notice or obligation to Pro, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Workiz in its sole discretion or required by the applicable third party provider. Moreover, if Workiz determines that Pro is in breach of any provision of this Agreement, Workiz reserves the right to block or suspend Pro from certain or all Features. Workiz may in its sole discretion charge for Features as part of the Fees and/or require additional personal, business or general information. Pro acknowledges and agrees that just because Workiz makes a Feature available, it does not mean Workiz endorses, or can otherwise control, every manner in which such Feature is used. Each Feature may be accompanied by separate or additional terms and conditions, as well as additional fees (in each case, “Feature Specific Terms“). Unless stated otherwise in Feature Specific Terms, all Feature Specific Terms apply in addition to (and not instead of) this Agreement.
UPDATES AND SUPPORT
- Updates. All references herein to the “Service” shall include the Updates provided by or on behalf of Workiz under this Agreement. Workiz may from time to time provide Updates, but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current internal policies Workiz may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by Workiz in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to Pro, and Pro consents to any such automatic updating or upgrading of the Service. In some cases, Pro may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, as well as additional fees (in each case, “Update Specific Terms“). Unless stated otherwise in Update Specific Terms, all Update Specific Terms apply in addition to (and not instead of) this Agreement.
- Support. Workiz (and/or a Workiz Affiliate or subcontractor) will use commercially reasonable efforts to provide Service-related technical support via any helpdesk or online portal offered via the Service or Site. For further information on such technical support see www.workiz.com/support/. If a problem or error relates to a Feature provided via a Third Party App, then technical support may be provided by the applicable third party provider.
OWNERSHIP AND LICENSES
- Service; Feedback. Pro acknowledges that the Service is or may be protected by Intellectual Property (and similar) Laws, treaties, and conventions. Any rights not expressly granted herein are hereby reserved by Workiz and its licensors. As between Pro and Workiz, Workiz is the sole and exclusive owner of all Intellectual Property Rights in and to the Service and all Workiz Content. For the avoidance of doubt, “Workiz” (and its respective logos) are trademarks of Workiz and/or Workiz Affiliates, and all other trademarks appearing on or in the Service are the trademarks of their respective owners. If Pro provides Workiz with any ideas, suggestions, or similar feedback about performance of the Service or for improving the Service (“Feedback“), Pro hereby grants to each of Workiz and all Workiz Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable, and perpetual license, to access, use, reproduce, distribute, publish, broadcast, make available to the public, modify, adapt, edit, create derivative works of, publicly display, publically perform, and otherwise commercially exploit such Feedback, in any media format and through any media channels (now known or hereafter developed) (the “Feedback License“).
- Pro Content Ownership and Licenses. As between Pro and Workiz, Pro is the sole and exclusive owner of Pro Content. Notwithstanding such ownership, Pro hereby grants to each of Workiz and all Workiz Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual license, in any media format and through any media channels (now known or hereafter developed) to do the following (collectively, the “Pro Content License“):
(a) to process Pro’s Pro Content to perform under this Agreement, including without limitation to provide Pro with the functionality of the Service and any support; and (b) to process Pro’s Pro Content and Pro’s usage of the Service on an aggregated or otherwise anonymous basis, for the purposes of improving the Service, analytics, and generally research and development.
FEES, PAYMENT AND SERVICE PACKAGES
- Fees. Pro shall pay all fees stated in the applicable Sales Order (“Fees“). Fees are based on the Service Package purchased, regardless of actual usage. In the event Workiz increases pricing (for Pro Users and/or Features), such increased pricing will take effect immediately, and Workiz shall use commercially reasonable efforts to give Pro at least thirty (30) days’ prior notice of such increase. Service Packages can either be the ‘default’ packages offered via the Site (“Default Service Packages“) or ‘customized’ packages separately negotiated with Workiz (“Customized Service Packages“). Service Packages may be upgraded (e.g. adding Pro Users or Features) (“Package Upgrades“) or downgraded (e.g. removing Pro Users or Features) (“Package Downgrades“) in accordance with this Section 10.
- Default Service Package Changes. The following applies to Default Service Packages: Pro is only entitled to Package Downgrades if the Billing Cycle is calendar monthly (i.e. no Package Downgrades are permitted for annual Billing Cycles). Pro is entitled to Package Upgrades. To the extent entitled, Package Downgrades and Package Upgrades may be configured by Pro at any time via the functionality offered in the Service, or, in the absence of such functionality, via written request to Workiz.
- Customized Service Package Changes. The following applies to Customized Service Packages: Pro is not entitled to Package Downgrades. Pro may request a Package Upgrade at any time, but not later than five (5) business days prior to subsequent Billing Cycle, by submitting Workiz a request in writing or via any functionality offered (“Modification Request”). Each Modification Request shall include: (a) current, complete and accurate information on Pro’s Service Package; and (b) details of the required Package Modification. Approval of a Modification Request is in Workiz’s sole discretion. Following Workiz’s receipt of the Modification Request, Workiz shall promptly confirm in writing to the Pro: (i) whether the Modification Request has been approved or rejected; (ii) when the applicable Package Upgrade will be implemented; and (iii) any changes to Pro’s Fees due to the applicable Package Upgrade. Changes to Pro’s Fees (if any) shall be reflected in accordance with Section 10.3 (Payment Terms).
- Payment Terms. The payments made to Workiz shall be made in advance and on a recurring basis (each, a “Billing Cycle”). Billing Cycles are based on the Subscription term specified in the Sales Order (i.e. calendar monthly basis or annual basis). For the avoidance of doubt, it is agreed that:
- (a) In respect of a calendar monthly Billing Cycle, if the Effective Date is after the 1st day of a given calendar month, the Fees for that calendar month will be pro-rated.
- (b) The increased Fees for a Package Upgrade becomes immediately due when the Package Upgrade takes effect, and if the Package Upgrade takes effect during the then-current Term, there will be a pro-rated adjustment of the Fees for the remainder of the then-current Term.
- (c) In the event of a Package Downgrade taking effect after the 1st day of a given calendar month, Pro will not be entitled to a pro-rated refund of that calendar month’s Fees, but will instead receive a pro-rated credit against the subsequent calendar month’s Fees.
- All Billing Cycles are renewed automatically at the commencement of each Renewal Term (defined below). Unless expressly stated otherwise in the Sales Order: (a) all Fees are stated, and are to be paid, in US Dollars; (b) all Fees are payable in advance; (c) all payments under this Agreement are non-refundable, and are without any right of set-off or cancellation; and (d) any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of: (i) the rate of one and a half percent (1.5%) per month; and (ii) the highest amount permitted by applicable Law.
- Taxes . Amounts payable under this Agreement are exclusive of all applicable sales, use, consumption, VAT, GST, and other taxes, duties or governmental charges, except for taxes based upon Workiz’s net income. In the event that Pro is required by any Law applicable to it to withhold or deduct taxes for any payment under this Agreement, then the amounts due to Workiz shall be increased by the amount necessary so that Workiz receives and retains, free from liability for any deduction or withholding, an amount equal to the amount it would have received had Pro not made any such withholding or deduction.
- Payment Processing . Pro shall provide Workiz accurate and complete billing information including without limitation full name, address, state, zip code, telephone number, and a valid payment method information. Pro agrees to promptly notify Workiz of any changes to the Pro’s billing information. Pro authorizes Workiz (either directly or through third parties) to request and collect payment on a recurring basis (or otherwise charge or take any other billing actions) from the Pro. In case Pro pays with a credit card, Pro hereby authorizes Workiz to charge the credit card on a recurring basis for all applicable Fees and to store the credit card information on Workiz’s (and its third parties’ payment processing providers’) servers. Payment of Fees may be processed through a third-party payment processing service, and additional terms may apply to such payments.
- WorkizPay payment services
- General . Pro may enable the Consumer to pay for goods and services via the Service (” WorkizPay “). Workiz may use a third-party payment processing service in order to provide this feature (currently provided by Stripe) (” Stripe Payment Services “). Workiz reserves the right to suspend or change the Stripe Payment Services for an alternative payment processing service at its sole discretion. With respect to the Pro’s use of the Stripe Payment Services, Pro hereby acknowledges and agrees that it is entering into a relationship with Stripe and agrees to be bound by the Stripe Connect Platform Agreement and any other Stripe terms referred to therein, which are incorporated by reference into this Agreement (” Stripe Terms “).
- Activities and Compliance . Pro shall be responsible for all activities initiated by or on behalf of the Pro (or the Consumer), or using the Pro’s credentials with respect to the Stripe Payment Services. Pro shall, at all times, comply with applicable laws and regulations, payment card network operating rules, agreements with third parties and the Stripe Terms. Pro represents, warrants and covenants that it shall not use the Stripe Payment Services to (a) to access any Account Data or conduct any activity, or attempt to do either, for which the Consumer has not given Pro express authorization or for which such authorization has been withdrawn; (b) for any fraudulent, unlawful, deceptive, or abusive purposes, or in any manner harmful to, or intended to harm, the Consumer, Stripe, or any third party; or (c) to circumvent Stripe’s intended limitations for any feature of the Stripe Payment Services or in a manner inconsistent with the Stripe Connect documentation .
- Reserve Accounts . Workiz may require that certain sums of money be set aside and held in a reserve account to cover chargebacks, refunds or other payment obligations arising from the use of WorkizPay, Stripe Payment Services or any payment related service under this Agreement (a “ Reserve Account “). Workiz may set the terms and the amount of the Reserve Account and may notify Pro of such terms if Workiz deems appropriate (but is under no obligation to notify), which may require, for example, that a particular amount of the funds received for a transaction processed through the WorkizPay service and/or Stripe Payment Services are held for a period of time, or that additional amounts are held in the Reserve Account. In addition, Workiz may, at its sole discretion, directly charge the Pro’s bank account and/or credit or debit card held by Workiz on file, for the purposes of creating and funding the Reserve Account as appropriate under the circumstances. Workiz reserves the right to change the terms of the Reserve Account at any time and for any reason, based on Pro’s (or the Consumer) payment processing history or as requested by the payments processors. Workiz may require Pro to fund the Reserve Account by means of (amongst others): (i) any funds payouts made or due to Pro for transactions submitted to the Stripe Payment Services; (ii) other sources of funds associated with Pro’s Workiz account; or, (iii) requesting that Pro provides funds to Workiz for deposit to the Reserve Account. Pro acknowledges and agrees that Pro: (iv) is not entitled to any interest or other compensation associated with funds held in the Reserve Account; (v) you have no right to direct that account; (vi) you have no legal interest in those funds or that account; and, (vii) you may not assign any interest in those funds or that account.
- Chargebacks/ Reversed Transactions . Pro shall be solely responsible for all Chargebacks (defined below) and/or other reversed or charged back transactions (including, without limitation, any fees levied by the card company, payments networks and/or Stripe) with the Consumer, regardless of the reason for, or timing of the Chargeback. Workiz shall not be liable for any Chargeback or other reversed or charged back transaction whatsoever. Pro shall be solely responsible for responding to and/or contesting (if applicable) any Chargeback in respect of a transaction to which Pro is a party. Pro may do this by contacting the applicable Consumer and/or submitting evidence to validate a transaction directly with the Consumer’s card provider. In the event that Pro does not promptly address a chargeback, Pro hereby authorizes Workiz to collect and submit, in its sole discretion, relevant information and evidence from Pro’s Workiz account to the applicable card company/payment processor in order to address any disputed charges. For the purposes of this section, ” Chargeback ” means a disputed charge raised by the Consumer, which is raised with their card company and can be on a variety of grounds including contesting a transaction as fraudulent, unrecognized or a duplicate charge or in relation to non-receipt of products or services or poor quality of the same. Workiz will charge the Pro a non-refundable $25 fee for each Chargeback regardless of the outcome.
- Workiz, at its own discretion, might use a third-party service providers to support the Pro in the dispute process. The Pro agrees to pay any charges or fees associated with this activity to the third party service provider and/or Workiz.
- Negative Account Balances . If a Pro’s Account has a negative balance (for example, where Pro provides more refunds than it receives payments from the Consumer and/or where a Pro’s Account is subject to a number of disputed transactions by the Consumer), such negative balance shall constitute a debt owed to Workiz. Accordingly: (a) any payments received to that Pro Account (for example, from future Consumer transactions) will be applied to automatically reduce the balance in the Pro Account; (b) the functionality which enables the processing of refunds through the affected Account may be disabled at any time by Workiz at it sole discretion; (c) Pro may be required by Workiz (upon Workiz’s instructions and in its sole discretion), to address any negative balance through a repayment plan agreement. Workiz may, at its sole discretion, directly charge the Pro’s bank account and/or credit or debit card held by Workiz on file, for the purposes of covering any negative balance, as appropriate under the circumstances. Pro acknowledges and agrees that it is a condition of Pro being granted rights to use Stripe Payment Services that Pro shall enter into a repayment plan agreement with Workiz if such a plan is deemed necessary by Workiz. If Pro does not enter into such a plan or fails to meet the re-payment schedule in the applicable repayment plan, Workiz may terminate Pro’s Account and/or take other appropriate actions as Workiz deems necessary in accordance with applicable law.
- Payment Disputes . As between Pro and the Consumer, all payment disputes between Pro and the Consumer arising in connection with Pro’s use of WorkizPay or the Stripe Payment Services are between Pro and such particular Consumer and not between Pro and Workiz or Workiz and the Consumer. Workiz shall not be liable or responsible in any way whatsoever for any payment dispute between Pro and any third party that uses the Stripe Payment Services feature to process payments. Pro shall indemnify, defend and hold Workiz harmless for any costs, damages, claims, losses, expenses, liabilities incurred by Workiz in connection with any payment dispute arising between Pro and any Consumer or other third party.
- Warranty Disclaimer and Limitation of Liability . The Stripe Payment Services are provided on an ‘as is’ and ‘as available’ basis without any warranties, either express, implied or statutory. To the maximum extent permitted by law, Workiz shall not be responsible and disclaims all liability for Pro and Consumers’ acts, omissions or use of the Strike Payment Services. Without derogating from the foregoing, Workiz is not responsible for, and expressly disclaim all damages, whether direct and indirect, incidental, consequential, special or other damages in connection with (i) any technical issues, errors, unavailability or failures, losses, damages, loss of data, lost profits or other losses or claims originating from or arising in connection with the Strike’s platform; (ii) any unauthorized access, hacking, tampering with or to your account or the services provided by Strike by third parties; or (iii) any software, bugs, viruses, Trojan horses, or other harmful and malicious code that may be transmitted via the Strike’s platform.
- Fees and Fines . Pro agrees to pay the applicable fees and taxes for processing which apply to the processing of any transactions using WorkizPay and/or Stripe Payment Service. In addition to the fees, Pro is responsible for any penalties and fines imposed on Pro or on Workiz by any bank, money services business, payment network, financial institution, or other financial intermediary resulting from Pro’s use of WorkizPay and the Stripe Payments Services in a manner not permitted by this Agreement or by such financial intermediary’s rules and regulations.
- Stripe Terminal . Pro may only purchase the Stripe Terminal Products for its own use in accordance with the Stripe Terminal Purchase Terms available at https://stripe.com/legal/terminal-purchase . Pro may not otherwise resell, rent, lease or distribute Stripe Terminal Products, or allow a third party to use Stripe Terminal Products that Pro has purchased. Workiz and/or Stripe reserve the right to refuse to sell or ship the Stripe Terminal Purchase Terms or the Stripe Terminal Reseller Terms available at https://stripe.com/legal/terminal-reseller , to any person they believe intends to use, resell, distribute or lease the Stripe Terminal Products in a manner prohibited by the Stripe Terminal Purchase Terms. Without limiting any of your other obligations under these Purchase Terms, if Pro obtains equipment, software or accessories branded by Verifone and shipped to Pro by or on behalf of Stripe or Workiz to an address in the United Kingdom or European Economic Area, Pro must comply with the Verifone Minimum Terms available at https://stripe.com/verifone/legal . Pro represents and warrants that it shall at all times: (a) agree to and comply with the Stripe Terminal Purchase Terms and Stripe Terminal Services Terms, as applicable; and (b) use Stripe Terminal Products only within the country to which Stripe and/or Workiz initially shipped those products except that Pro may use a Stripe Terminal Product that was shipped to the European Economic Area or Switzerland in another country in the European Economic Area or Switzerland but only if Stripe supports Stripe Terminal in that country (found on https://stripe.com/docs/terminal/fleet/placing-orders or as otherwise communicated to Pro by Stripe and/or Workiz in writing).
- Chargeback Requests . Pro understands and acknowledges that Pro is not entitled to claim any refund from Stripe, at any time, following the first thirty (30) days of the Pro’s annual subscription to Workiz, for any reason whatsoever, including, without limitation, for a claim that the Pro’s subscription has been cancelled or a Pro’s claim of either a fraudulent charge, that the product is unacceptable, that the product has not been received, that credit has not been processed, or otherwise. Workiz shall not be responsible or liable for any refund or other claim made by Pro to Stripe in this regard.
- Sunbit-Faciliated Loans.
- Loan Program Agreements . If a Pro decides to make Sunbit-facilitated loan products available to the Consumer, Pro shall first enter into a direct agreement with Sunbit (” Loan Program Agreement “). It is the Pro’s responsibility to execute the Loan Program Agreement and in no event shall Workiz be responsible or liable with respect to the Loan Program Agreement or the provision of any Sunbit-facilitated loan product by Sunbit whatsoever. Pro represents, warrants and covenants that it shall not promote any Sunbit-facilitated loan products to the Consumer through the Services, unless it has executed and complies with the Loan Program Agreement. Pro acknowledges and agrees that Sunbit has the right to refuse to sign a Loan Program Agreement for any reason in its sole and absolute discretion.
- Assistance.Pro acknowledges and agrees that Workiz will not assist the Consumer in filling out any applications for Sunbit-facilitated loans and will cannot accept or receive compensation directly from Pro or any of the Consumer for assisting with an application for any Sunbit-facilitated loan. To the extent applicable, Pro shall not assist, nor cause any of its healthcare Consumers to assist, any applicant in the completion or submission of a credit or loan application (except to the extent required to provide a reasonable accommodation with respect to any disability). Pro shall provide any written or electronic notice required under applicable state law to any patient seeking to establish a credit or loan, as instructed by Workiz or Sunbit. Pro shall comply, and shall not inhibit any healthcare professional from complying, with any patient credit laws regulating the practices of medical providers arranging for credit transactions, including but not limited to Cal. Bus. and Prof. Code § 654.3. Pro shall not inhibit healthcare Consumers from complying with Medicare, Medicaid, and any other state or federal law, regulation, guidance document, manual provision, program memorandum, opinion letter, or other issuance which regulates patient or program billing for charges. All marketing or promotional functions conducted by Pro shall be structured to comply with HIPAA.
- Subject to the terms of this Agreement and any other applicable terms and laws, Pro may make available the Sunbit facilitated loan products to Consumers by text message, email, interface results, at point of sale or other methods.
- Pro expressly confirms, agrees and consents to Workiz providing certain data of Pro to Sunbit though the Services to facilitate loan applications for the Sunbit facilitated loan products.
- Text Messaging . Pro represents, warrants and covenants that all communications with Consumers that occur via a text message to a cellular telephone via the Services will be made in compliance with the Telephone Consumer Protection Act, 47 U.S.C. § 227, and the FCC’s implementing regulations, 47 C.F.R. § 64.1200, (collectively, the “ TCPA ”) the Telemarketing Fraud and Abuse Prevention Act, 47 U.S.C. § 6101 et seq., the FTC’s Telemarketing Sales Rule issued thereunder, 16 C.F.R. Part 310 (together with the Telemarketing Fraud and Abuse Prevention Act, the “ TSR ”) and any state laws regulating the initiation of marketing and/or autodialed calls or text messages. Without limiting the foregoing, with regard to any text message that references in any manner, either explicitly or implicitly, Sunbit or any Sunbit-facilitated loan product, Pro represents, warrants and covenants that:
- Pro shall send messages only to recipients who have provided their prior express written consent, as that term is defined in at 47 C.F.R. § 64.1200(f)(8), (“ PEWC ”) to receive autodialed, promotional text messages from Sunbit. For the avoidance of doubt, such PEWC may only be obtained from a person in a manner that is completely voluntary wherein the individual specifically “opts-in” or requests to receive autodialed marketing communications from Sunbit. Pro agrees that no form of PEWC in association with the promotional Services provided using Sunbit’s technology may be utilized until it has been approved in writing by Sunbit. If PEWC is to be obtained electronically, it must be preceded by a valid consent to receive electronic disclosures obtained in accordance with the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7101 et seq. Further, Pro shall refrain from sending more than a single verification text message to a particular consumer after PEWC has been obtained until such consumer has confirmed his or her consent by affirmatively responding to such single verification text message, such process being commonly referred to as a “double opt-in”;
- Pro shall immediately honor any request by Consumers to not be contacted through an automated means and/or to not be contacted by Sunbit, including any text message received by Pro or the Service from a consumer containing the term “Stop” or any similar term or terms that might reasonably evidence a consumer’s desire to not receive further communications relating to Sunbit or Sunbit-facilitated loan products, and to communicate such request to Sunbit, including the name and telephone number of the individual making such request, no later than one business day following the date of such request;
- Pro shall ensure the telephone number to be contacted does not appear on the federal do-not-call registry, any applicable state do-not-call registry, or Sunbit’s and the applicable Pro’s company-specific do-not-call list (each a “DNC List”). Any number appearing on a DNC List must not be contacted if such Communication relates in any manner to the Sunbit-facilitated loan products absent the prior written approval of Sunbit; and
- Pro shall send text messages only between the hours of 8:00 AM and 9:00 PM local time at the recipient’s location.
- Pro further agrees that the content of any text message that references Sunbit or Sunbit-facilitated loan products in any manner, either implicitly or explicitly, shall require the prior written approval of Sunbit. Sunbit reserves the right to require to refrain from sending any or all text messages, including text messages to specific telephone numbers in relation to Sunbit-facilitated loans.
- Email. Pro represents, warrants and covenants that all communications with Consumers that occur via email will be made in compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. § 7701 et seq. and the FTC’s rule issued thereunder, 16 C.F.R. Part 316 (collectively, “ CAN-SPAM ”) and any applicable state laws regulating the initiation of email messages to consumers. Without limiting the foregoing, with regard to any email message that references in any manner, either explicitly or implicitly, Pro represents, warrants and covenants to:
- Clearly and conspicuously include in each commercial electronic mail message either a functioning return electronic mail address or other Internet-based mechanism that permits the recipient to opt-out of future commercial electronic mail messages. Such return address or mechanism must remain capable of receiving an opt-out for no less than 30 days after the transmission of the original message;
- Honor any such opt-out in no more than 10 business days;
- Refrain from sharing, in any manner, any electronic email address that has submitted an opt-out, other than for purposes of complying with CAN-SPAM;
- Clearly and conspicuously identify any commercial electronic mail message as an advertisement or solicitation unless the recipient has previously provided affirmative consent to receive commercial electronic messages from Sunbit;
- Refrain from sending any email that contains or is accompanied by header information, as that term is defined in 15 U.S.C. § 7702, that is false or misleading;
- Include a valid physical postal address of Sunbit, Workiz and/or the Pro;
- Refrain from sending any such message without the prior written approval of Sunbit.
- Pro further agrees that the content of any email message that references Sunbit or any Sunbit-facilitated loan product in any manner, either implicitly or explicitly, is subject to the prior written approval of Sunbit.
- Pro acknowledges that Workiz cannot answer questions from Pro and/or Consumers about any promoted credit program and all such questions shall be referred directly to Sunbit.
- Sunbit and/or Workiz may, at its sole discretion notify Pro if such Pro no longer has the right to make available Sunbit-facilitated loan products, and upon which time Workiz may, remove such Pro’s access to Sunbit’s technology through the Services, without any further liability to Pro.
- Pro acknowledges and agrees that Sunbit may modify Sunbit’s technology at any time, in order to comply with applicable law or as may be necessary to accommodate industry specific requirements of the Pro. In addition, Sunbit reserves the right to refuse to offer or to cease offering Sunbit’s technology to Pro or Sunbit-facilitated loan products to Consumers of any U.S. state, region or territory as may be necessary to comply with applicable law. Workiz assumes no responsibility or liability with respect to the foregoing.
- Workiz makes no representations or warranties of any kind, whether express, implied, or statutory, including any warranties or conditions of non-infringement, merchantability, or fitness for a particular purpose with respect to Sunbit’s technology, any Loan Program Agreement or any other services provided by Sunbit hereunder and shall have no responsibility or liability with respect to the foregoing. Pro shall fully indemnify, defend and hold Workiz harmless for any claim with respect to the forgoing. For clarity, under no circumstance, will Workiz be responsible or liable whatsoever for any dispute, outstanding amounts, refunds or any matter with respect to the Loan Program Agreement and/or any other services provided by Sunbit and Pro shall fully indemnify Workiz for any claim with respect to the foregoing.
- Debt Collection Services. Workiz may use a third party debt collection service to recover any outstanding amounts owning by the Pro to Workiz. Currently, Workiz uses RevX to provide this service, however, Workiz reserves the right to change or substitute this provider at its sole discretion. If a debt is recovered from a Pro though such third party provider, such third party service provider may charge a commission based on the recovered amount. Pro is fully liable and responsible to pay all commissions charged by the debt collection provider and Workiz shall not be held liable for the forgoing and Pro may not be entitled to recover such amounts from Workiz in any circumstances.
- THE SERVICE, ANY WORKIZ CONTENT, AND ANY THIRD PARTY CONTENT AND THIRD PARTY APPS ARE PROVIDED AND MADE AVAILABLE TO PRO ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, QUIET POSSESSION, TITLE, QUALITY OF SERVICE, NON-INFRINGEMENT, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY WORKIZ AND ITS LICENSORS AND SUPPLIERS.
- PRO AGREES THAT WORKIZ WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM TECHNICAL PROBLEMS INCLUDING WITHOUT LIMITATION IN CONNECTION WITH THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF WORKIZ’S OR SERVICE-RELATED SERVERS) OR ANY TELECOMMUNICATIONS OR INTERNET PROVIDERS.
- IN ADDITION, NEITHER WORKIZ NOR ITS LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION:
- (A) REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE SERVICE, WORKIZ CONTENT, THIRD PARTY APPS, OR THIRD PARTY CONTENT;
- (B) THAT PRO’S USE OF, OR RELIANCE UPON, THE SERVICE, WORKIZ CONTENT, THIRD PARTY APPS, OR THIRD PARTY CONTENT WILL MEET ANY REQUIRMENTS OR EXPECTATIONS;
- (C) THAT THE SERVICE, WORKIZ CONTENT, THIRD PARTY APPS, OR THIRD PARTY CONTENT WILL BE UNINTERRUPTED, SECURE, ERROR-FREE OR VIRUS-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED; OR
- (D) REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
LIMITATION OF LIABILITY
- IN NO EVENT SHALL WORKIZ, ANY WORKIZ AFFILIATE, OR ANY OF THEIR RESPECTIVE LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT FOR:(A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;(B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;(C) ANY LOSS OF, THEFT OF, OR DAMAGE TO, PRO CONTENT, DATA, NETWORKS, HARDWARE, REPUTATION, OR GOODWILL; AND/OR(D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
- THE COMBINED AGGREGATE LIABILITY OF WORKIZ AND ALL WORKIZ AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY PRO (IF ANY) TO WORKIZ OR A WORKIZ AFFILIATE DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
- THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF WORKIZ OR A WORKIZ AFFILIATE HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STATUTORY BREACH, STRICT LIABILITY, CONTRACT OR TORT.
- NO ACTION, REGARDLESS OF FORM, MAY BE BROUGHT BY PRO AFTER THE EARLIER OF: (A) 12 MONTHS AFTER THE DATE ON WHICH PRO BECOMES AWARE THAT A CAUSE OF ACTION HAS ARISEN, OR (B) THE PERIOD SET FORTH UNDER THE APPLICABLE LAW.
If any third party (including, but not limited to, a regulatory or governmental authority) brings any kind of demand, claim, suit, action or proceeding against Workiz, a Workiz Affiliate, and/or any of their respective directors, officers, employees, or representatives (each, an “Indemnitee“), and it is based upon or arises from:
(a) Pro’s use of the Service;
(b) Pro’s breach of any provision of this Agreement; and/or
(c) any demand, claim, suit, action, or proceeding brought by, or loss or damage incurred or suffered by, any Free User, Pro User, or client of Pro
(each of the foregoing, an “Indemnity Claim“) then, upon written request by Workiz (to be decided in its sole discretion), Pro agrees to assume full control of the defense and settlement of the Indemnity Claim;
provided, however, that (c) Workiz reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases Pro agrees to reasonably cooperate with Workiz’s defense activities at Pro’s own cost and expense; and (d) Pro shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s). In addition, and regardless of whether (or the extent to which) Pro controlled or participated in the defense and/or settlement of an Indemnity Claim, Pro agrees to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
TERM AND TERMINATION
- Term. Unless otherwise specified in a Sales Order, this Agreement commences on the commencement date of Your Subscription (as specified in the Sales Order) and shall continue in full force and effect for a period of twelve (12) months (“Initial Term“). Following the Initial Term, this Agreement shall automatically renew for successive twelve (12) month periods (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either Party notifies the other Party in writing, no less than thirty (30) days prior to the expiration of the then-current term, of its intention not to renew this Agreement. At the commencement of each Renewal Term, Pro shall pay all Fees with respect to such Renewal Term in accordance with this Agreement, which are non-refundable.
- Termination by Workiz for Convenience. Workiz reserves the right to terminate this Agreement for convenience, at any time, and without notice or obligation to Pro, and Pro agrees that Workiz shall have no liability to Pro for any such termination; provided, however, that if terminated, then Workiz shall refund to Pro a pro-rated amount of any pre-paid and unused Fees based on the remainder of the Term.
- Termination by Workiz for Cause. Workiz may terminate this Agreement immediately upon notice to Pro (which may be via email or via the functionality of the Service): (a) if Pro commits a material breach under this Agreement (and default of any payment obligations shall be deemed a material breach); and/or (b) upon the occurrence of any of the following events in respect of Pro: (i) a receiver is appointed for Pro, which appointment is not dismissed within sixty (60) days; (ii) Pro makes a general assignment for the benefit of its creditors; (iii) Pro commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) Pro is liquidating, dissolving or ceasing normal business operations.
- Termination by Pro. Pro may terminate this Agreement for convenience or for any other reason, at any time, by sending a termination notice to email@example.com, in which case termination will take effect at the end of the then-current Term, and Pro will not be charged for the subsequent Term. For the avoidance of doubt, any pre-paid Fees will not be refunded and all amounts under the original Term and Agreement will remain due. If Pro objects to any provision of this Agreement or becomes dissatisfied with the Service in any way, Pro agrees that its sole remedy, and Workiz’s sole liability, is for Pro to terminate this Agreement as aforementioned.
CONSEQUENCES OF TERMINATION; SURVIVAL
Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement: (a) the Subscription will automatically terminate and be deemed revoked, and Pro will immediately lose all access to and use of the Service; (b) Pro’s Account (and related Pro User access credentials) shall be terminated, and Pro shall be responsible for download or backing up any Pro Content, and Workiz may permanently delete Pro’s Pro Content from Workiz’s databases and servers hosting the Service; and (c) Pro shall promptly pay any unpaid amounts that are outstanding as of termination. Sections 9 (Ownership and Licenses) and 11 (Disclaimers) through 17 (General) inclusive, as well as any other provision which is intended to survive termination of this Agreement, shall survive termination.
GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement (including its validity) shall be governed by, and construed in accordance with, the laws of the State of California, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to this Agreement and are hereby disclaimed. Any claim, dispute or controversy under, or otherwise in connection with, this Agreement (a “Dispute“) shall be subject to the exclusive jurisdiction and venue of the courts located in San Diego County, California. Pro hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waives any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Notwithstanding the foregoing, Workiz reserves the right to seek equitable relief in any court worldwide of competent jurisdiction. Furthermore, the parties hereby irrevocably and unconditionally waive the right to litigate such Disputes in court before a jury.
- Entire Agreement. This Agreement represents the entire agreement between Workiz and Pro with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Pro and Workiz with respect to such subject matter. Pro acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the Site. To the extent of any conflict or inconsistency between these terms and conditions on the one hand, and the Sales Order on the other hand, the former shall prevail (unless the Sales Order expressly overrides a provision herein).
- Language; Electronic Contract. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement, Pro hereby irrevocably waives, to the maximum extent legally permitted, any Law applicable to Pro requiring that the Agreement be localized to meet Pro’s language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. Workiz may be able (but is not obligated) to provide Pro with copies of this Agreement on written request; however, please be sure to print a copy of this Agreement for Pro’s own records.
- Workiz Affiliates. At Workiz’s sole discretion, any Workiz obligation hereunder may be performed (in whole or in part), and any Workiz right or remedy may be exercised (in whole or in part), by a Workiz Affiliate. Without limiting the generality of the foregoing, Workiz may assign its right to invoice and receive payments under this Agreement to a Workiz Affiliate.
- Assignment. Workiz may assign this Agreement (or any of its rights and/or obligations hereunder) without Pro’s consent, and without notice or obligation to Pro. This Agreement is personal to Pro, and Pro shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without Workiz’s express prior written consent. Any prohibited assignment shall be null and void.
- GDPR. Pro hereby represents and warrants that it will: (i) provide all appropriate notices, (ii) obtain all required informed consents and/or have any and all ongoing legal bases, and (iii) comply at all times with any and all applicable privacy and data protection Laws (including, without limitation, the EU General Data Protection Regulation (“GDPR”)), for allowing Workiz to use and process Pro Content in accordance with this Agreement (including, without limitation, the provision of such Pro Content to Workiz (or access thereto) and the transfer of such Pro Content by Workiz to its Affiliates, and subcontractors, including transfers outside of the European Economic Area), for the provision of the Service and the performance of this Agreement. To the extent that Pro needs a data processing agreement, Pro shall download Workiz’s Data Processing Agreement (“DPA”) available on the Site and return it signed to Workiz as described therein. In the event Pro fails to comply with any data protection or privacy Law (such as the GDPR) and/or any provision of the DPA, and/or fails to return an executed version of the DPA to Workiz, then: (a) to the maximum extent permitted by Law, Pro shall be solely and fully responsible and liable for any such breach, violation, infringement, and/or processing of personal data without a DPA by Workiz and/or its Affiliates (including, without limitation, their respective employees, officers, directors, subcontractors and agents); (b) in the event of any claim of any kind related to any such breach, violation, or infringement, and/or any claim related to processing of personal data without a DPA, Pro shall defend, hold harmless and indemnify Workiz and its Affiliates (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees; and (c) any limitations on, or exclusions of, of Pro’s liability under this Agreement shall not apply in connection with the above subparagraphs (a) and (b).
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
- Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
- Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Pro, emails will be acceptable; for waivers by Workiz, the writing must be duly signed by an authorized representative of Workiz), and shall be valid only in the specific instance in which given.
- Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
- Notices. Pro agree that Workiz may send Pro notices by email, via Pro’s Account, by regular mail, and/or via postings on or through the functionality of the Service. Except as stated otherwise in this Agreement or required by Law applicable to Pro, Pro agrees to send all notices to Workiz, to firstname.lastname@example.org.
- No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Workiz Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
- U.S. Government Rights. The Service is “commercial computer software” and the Documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Pro is an agency, department, employee or other entity of the United States Government, then Pro’s access to and use of the Service shall be subject solely to the terms and conditions of this Agreement.
- Third Party Charges. Pro’s use of the Service may require and utilize an internet connection or data access. To the extent that third party service provider or carrier charges for internet or data usage are applicable, Pro shall be solely responsible and liable for those charges.
- Export Compliance. Pro represents and warrants (on behalf of itself and its Pro Users and Free Users) that: (a) it is not a resident of (or will use the Service in) a country that the U.S. government has embargoed for use of the Service, nor is Pro named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Pro breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Service, Pro agrees to indemnify and hold harmless Workiz and all Workiz Affiliates (including their respective directors, officers, and employees) for any fines and/or penalties imposed upon Workiz or an Workiz Affiliate (or such persons) as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control Laws applicable to Pro and/or Workiz, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.