THESE TERMS AND CONDITIONS govern the access to and use of the proprietary, cloud-based software platform for real estate project management (the " Platform") licensed by Workframe, Inc., a Delaware Corporation (" Workframe"). " Licensee" refers to the entity entering into an Order Form for access to the Platform referencing these Term and Conditions. The " Agreement" means these Terms and Conditions plus any associated Order Form(s).
1.1. Grant. Workframe hereby grants Licensee a worldwide, non-transferable, non-sublicensable, non-exclusive right during the Term (the " License") to (a) access and use the SaaS-based elements of the Platform specified on the Order Form (the " Workframe Cloud"), and (b) make the Workframe mobile application (the " Workframe App") available to employees and others authorized to access the Platform by Licensee in connection with specific projects (" Authorized Users") for the purpose of making the Platform available to Authorized Users. The License includes the right (x) for Licensee to make and use a reasonable number of copies of any written or online descriptions of the functionality, technical requirements, or use of the Platform (collectively, " Documentation"), and
(y) for Licensee and Authorized Users to use any modifications, improvements, bug fixes, or other new versions of the Platform made available to all licensees of the Platform at no additional cost (each, an " Update") as and when each Update is made available. Updates are applied automatically to the Workframe Cloud, and, depending on device settings and connectivity, may be installed automatically or manually to the Workframe App. Unless otherwise set forth herein, any reference to "Software" or the "Platform" means both the Workframe Cloud and Workframe App. Workframe represents that any such Update will not adversely impact the performance of the Workframe Cloud or Workframe App, or materially reduce functionality.
1.2. Restrictions. Except as explicitly permitted herein, Licensee will not, directly or indirectly, attempt to: (a) modify or create derivative works of the Platform; (b) decompile, reverse engineer, or otherwise translate any portion of the Platform into human-readable form (except to the extent that this subsection (b) is limited by applicable law); (c) rent, lease, share, distribute, or sell the Platform to any third party, including on a time sharing, service bureau, or other similar basis; (d) remove, alter or deface proprietary notices, labels or marks in the Platform or Documentation; (e) disclose the results of testing or benchmarking of the Platform; (f) circumvent or disable the Platform's license management or security mechanisms; or (g) use the Platform in violation of any applicable law or to violate the rights of any third party.
1.3. Usage Information. Workframe owns all (a) data regarding installation, registration, and use of the Platform; and (b) data related to performance of the Platform, including response times, load averages, usage statistics, activity logs, (collectively, " Usage Information"). Usage Information does not include any personally identifiable information, Licensee work product or confidential information, or Licensee-specific output resulting from the use of the Platform (" Licensee Output"). Usage Information is used to contribute to analytical models used by Workframe, to monitor and improve the Platform, and perform related services (as described below).
1.4. Additional Features. Workframe may make additional features or modules for the Platform available for an additional fee during the Term (each such offering, a " Add-On"). Add-Ons are not required for the proper functioning of the Platform, and will be made available to Licensee when made available to other Workframe customers.
2.1. Support Services. As part of the License, Workframe will (a) use commercially reasonable efforts to promptly resolve issues with the Software reported via chat, phone, and / or email, (b) provide Licensee with all Updates (subject to the representation in Section 1.1 that any such Update will not adversely impact the performance of the Workframe Cloud or Workframe App, or materially reduce functionality), and (c) provide Licensee with access to standard Documentation, which may be online. Additional support may be provided as set forth in the Order Form. Live support is available from 9:00AM to 5:00PM EST on weekdays, except holidays.
2.2. Training. As part of the License, Workframe provides up to (5) training sessions in the use of the Software. Training sessions are scheduled as mutually convenient and may take place in person or via live video.
2.3. Security. Workframe will use commercially reasonable security technologies in performing its obligations hereunder and to safeguard the integrity and stability of the Platform and the Licensee Data stored thereon. Workframe has implemented and will maintain information security policies and safeguards consistent with what is at a minimum standard within the industry, to preserve the security and confidentiality of Licensee Data in its possession or control, including that stored on the Platform.
2.4 Additional Services. Workframe may provide additional services to Licensee (" Additional Services"), including services related to the implementation or integration of the Platform with Licensee systems. The terms, requirements, and pricing for Additional Services will be set forth in the Order Form. For Additional Services desired after the Effective Date, the parties may enter into additional Order Forms referencing the Agreement. Each additional Order Form will be incorporated into and be subject in all respects to the terms of the Agreement.
3. LICENSEE RESPONSIBILITIES
3.1. Authorized Users. Licensee is responsible for providing each Authorized User with credentials to allow them to access the Platform (" Credentials"). Workframe App users will be required to accept an End User License Agreement with terms at least as protective of Workframe as those set forth herein, and which conforms to the requirements of the operator of the applicable "app store" (i.e., Google or Apple) from which the Workframe App is downloaded by the Authorized User. As between the parties, Licensee is responsible for the acts of all Authorized Users with respect to the Platform. Authorized Users may not share their Credentials, must keep Credentials confidential and secure, and are responsible for all activity that occurs under their accounts. Licensee must immediately inform Workframe of any suspected unauthorized use or access of the Platform using Credentials associated with its account, or reported by Authorized Users. To the greatest extent allowed under law, Workframe explicitly disclaims all liability for any loss or damage arising from (a) an Authorized User's failure to safeguard Credentials, or (b) unauthorized use of such Credentials.
3.2. Licensee Data. As between the parties, except with respect to Workframe's data security obligations under this Agreement, Licensee is solely responsible for any information uploaded to the Platform or otherwise provided to Workframe under this Agreement, including by Authorized Users (" Licensee Data"). Workframe expressly disclaims any liability arising from Licensee Data as provided or uploaded to the Platform. In addition to the restrictions set forth in Section 1.2, Licensee and Authorized Users may not use the Platform to transmit, store, display, distribute or otherwise make Licensee Data available that is illegal, harmful, or offensive, including content that is defamatory, obscene, abusive, invasive of privacy, or pornographic. Workframe may, in its sole discretion, remove or delete any Licensee Data that violates this Section 3.2.
3.3. Connectivity. Licensee is responsible for any network or internet connectivity required to access or use the Platform over the Internet. Licensee consents to the processing and storage of Licensee Data and Licensee Output on hardware owned or controlled by third parties (i.e., AWS)
3.4 Gen eral. In addition to obligations identified elsewhere in this Agreement, Licensee will provide access to such information, personnel and systems Workframe reasonably requires to support the License and Services, and to respond to inquiries and provide approvals promptly.
4.1. Platform. Except for the license granted in Section 1.1, Workframe or its licensors retain all right, title and interest in the Platform (including all intellectual property rights therein), the Usage Information.
4.2. Licensee Data and Output. Licensee retains all right, title, and interest in the Licensee Data and Licensee Output, except as explicitly set forth herein. Licensee grants Workframe a worldwide, royalty-free, sublicensable, nonexclusive license during the Term to use Licensee Data solely as required in connection with performing its obligations hereunder.
5.1. Fees. Licensee will pay the amounts set forth on the Order Form for the License and any Additional Services performed by Workframe (the " Fees"). Unless otherwise set forth on the Order Form, License Fees are invoiced annually in advance, Implementation Fees are invoiced upon the Effective Date, and other Fees for services will be invoiced monthly in arrears. Licensee will pay Fees within thirty (30) days of receipt of the applicable invoice. Workframe may adjust the Fees charged during any Renewal Term upon notice to Licensee at least sixty (60) days' prior to the end of the then-current Term.
5.2. Late Payments; Disputed Fees. If Fees are not received when due, Workframe may (a) assess a late payment charge of one-half percent (0.5%) per month or the maximum allowed by law, if less, and, (b) upon notice of such overdue payment and Licensee's failure to provide payment within five (5) days of such notice, suspend access to the Platform until payment in full is received. Licensee may dispute Fees by providing written notice prior to the date such Fees are due and including with reasonable specificity
the grounds for such dispute. The parties will work in good faith to promptly resolve such disputes. Licensee will pay the undisputed amounts on any invoice when due, regardless of a dispute regarding other amounts on such invoice.
5.3 Taxes. The Fees do not include any taxes, duties or similar assessments of any nature that may be imposed on the License or related services performed hereunder (" Taxes"). Licensee will be responsible for paying all Taxes. Workframe will list all Taxes that it is responsible for collecting and remitting to the appropriate authorities as a separate line item on each invoice.
6. TERM AND TERMINATION
6.1. Term . The Agreement will become effective on the Effective Date and will continue for the " Initial Term" set forth on the Order Form (or one (1) year if no Initial Term is defined). Thereafter, the Agreement will automatically renew for successive periods equal to the length of the Initial Term (each, a " Renewal Term ," and, all such Renewal Terms with the Initial Term, the " Term"), unless either party notifies the other in writing of an intent not to renew at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term, or as earlier terminated as set forth herein.
6.2. Termination for Material Breach. If either party fails to comply with any material provision of the Agreement, the other party may terminate the Agreement immediately. Additionally, either party may terminate this Agreement for convenience upon thirty (30) days' written notice.
6.3 Effects of Termination. Upon the expiration or termination of the Agreement for any reason, (a) all rights and licenses to the granted under the Agreement will terminate; (b) Licensee will immediately discontinue all use of the Platform and remove or destroy any copies of the Documentation in its possession; and (c) Sections 1.2, 1.3, 4, 5 (to the extent fees remain unpaid), 6.3, 7, 9, 10, and 11 will survive in accordance with their terms. For clarity, Licensee may export Licensee Output from the Platform prior to the termination or expiration of the Agreement if necessary to preserve such Licensee Output
7.1. Confidential Information. The terms of the Agreement and all non-public information (" Confidential Information") of either party (" Disclosing Party") provided to the other party (" Receiving Party") hereunder will be maintained in confidence and will not be disclosed by the Receiving Party except (a) to the Receiving Party's personnel who have a need to know such information in connection with the Agreement, and (b) to the Receiving Party's advisors, accountants, attorneys, and actual and potential lenders, investors and/or acquirers (in all cases where such recipient is under a written obligation respecting confidentiality that is materially similar to this Section 7). In maintaining the confidentiality of Confidential Information of the Disclosing Party, the Receiving Party will exercise the same degree of care that it exercises with its own confidential information of a similar nature, and in no event less than a reasonable degree of care. The Receiving Party will ensure that each of its personnel holds in confidence and makes no use of the Confidential Information of the Disclosing Party for any purpose other than those permitted under the Agreement or otherwise required by law. The Platform, Documentation, and Usage Information will be Confidential Information of Workframe. Licensee Output will be Confidential Information of Licensee.
7.2. Exceptions. The terms of Section 7.1 will not apply to the extent that the Receiving Party is required to disclose information by applicable law; provided, however, that, to the extent permitted by law, the Receiving Party will not make any such disclosure without first notifying the Disclosing Party and allowing the Disclosing Party a reasonable opportunity to seek injunctive relief from (or a protective order or confidential treatment with respect to) the obligation to make such disclosure. Confidential Information will not include information that the Receiving Party can demonstrate (a) was generally known to the public other than as a result of the Receiving Party's breach of its obligations hereunder; (b) was rightfully known to the Receiving Party prior to the date of disclosure; or (c) was independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party.
7.3. Injunctive Relief. The Receiving Party agrees that (a) the remedies at law for any breach of this Section 7 are inadequate and that the damages resulting from any such breach may not be adequately addressed by monetary compensation, and (b), therefore, upon any breach by it of this Section 7, the Disclosing Party will be entitled to immediate injunctive relief and may obtain any order restraining any threatened or future breach from any court of competent jurisdiction without the requirement to post bond. Such relief will be in addition to any remedies at law or in equity available to the Disclosing Party for a breach by the Receiving Party of any of the provisions of the Agreement.
7.4 Return of Information. Upon expiration or termination of the Agreement, the Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party obtained in the performance of the Agreement, including all copies thereof, under its possession or control, or, at the Disclosing Party's option, destroy or purge its own systems and files, of all such Confidential Information of the Disclosing Party and, upon request by the Disclosing Party, deliver to the Disclosing Party a written confirmation of such destruction and purging.
8. WARRANTIES AND DISCLAIMERS
8.1. Performance. Implementation and any other services separately paid for by Licensee as set forth in the Order Form will be performed in a professional and workmanlike manner consistent with industry standards.
8.2. Software As Is. WORKFRAME PROVIDES THE PLATFORM AND ANY LICENSEE OUTPUT "AS IS" AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND.
8.3 Disclaimer. ASIDE FROM THE LIMITED WARRANTY PROVIDED IN SECTION 8.1, WORKFRAME EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT) OR ARISING FROM A COURSE OF DEALING. IN ADDITION, WORKFRAME DOES NOT WARRANT THAT THE PLATFORM OR ANY SERVICES RENDERED HEREUNDER WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXPRESS WARRANTY FAILS OF ITS ESSENTIAL PURPOSE AND, TO THE EXTENT THIS DISCLAIMER IS
9.1. Infringement. Workframe will indemnify and hold harmless Licensee and its officers, directors and employees against any third-party claim (including reasonable attorneys' fees and court costs) alleging that the Platform infringes the intellectual property rights of a third party, except to the extent the alleged infringement is the result of (a) Licensee's failure to use an Update that Workframe communicated was required to avoid infringement, (b) Licensee's modification of the Platform or use the Platform in combination with other software not approved by Workframe, or (c) solely based on the Licensee Data. Additionally, Workframe will indemnify and hold harmless Licensee and its officers, directors and employees against any third-party claim (including reasonable attorneys' fees and court costs) arising our of a breach of its data protection obligations (as set forth in Exhibit 1, hereto).
9.2. Alternative Remedy. If the Platform or any element thereof is or in Workframe's view is likely to be found to infringe any third-party intellectual property rights, Workframe, in its sole discretion and at its cost and expense, will either (a) procure the right for Licensee to continue to use the Platform; or (b) modify the Platform to be non-infringing without materially diminishing its functionality. If neither (a) nor (b) is commercially reasonable practicable, Workframe may terminate the Agreement by giving Licensee at least thirty (30) days' prior written notice and, as Licensee's sole and exclusive remedy therefor, refund Licensee the portion of any prepaid License Fees attributable to the terminated portion of the Agreement.
9.3. Procedures. The obligations in this Section 9 are contingent on Licensee (a) promptly notifying Workframe of any indemnifiable claim; (b) granting Workframe sole control over the defense and/or settlement of the claim (provided that a settlement may not impose costs or liability on Licensee without its consent); and (c) providing reasonable assistance to Workframe at Workframe's expense.
9.4. Sole Remedy. The remedies in this Section 9 are Licensee's sole remedy, and Workframe's entire liability, with respect to any indemnifiable claim.
10. LIMITATION OF LIABILITY
10.1. Disclaimer; Limits. SUBJECT TO SECTION 10.2, (A) NEITHER PARTY WILL HAVE ANY LIABILITY TO THE OTHER PARTY WITH RESPECT TO CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, MULTIPLE, PUNITIVE OR OTHER INDIRECT DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT WILL A PARTY'S TOTAL LIABILITY IN CONNECTION WITH OR UNDER THE AGREEMENT EXCEED THE FEES PAID OR PAYABLE BY LICENSEE UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM.
10.2 Exclusions. The limitations in Section 10.1 will not apply to (a) either party's indemnification obligations; (b) claims related to unauthorized disclosure of Confidential Information; (c) claims related to one party's misappropriation, infringement or violation of the other party's intellectual property rights; (d) Licensee's failure to make undisputed payments due hereunder; or (e) a party's gross negligence, willful misconduct or fraud.
11.1. Governing Law; Venue. The Agreement will be governed by and interpreted in accordance with the laws of the State of New York without giving effect to any conflicts of laws principles that would require a different result. Each party irrevocably consents to the jurisdiction of the state and federal courts located in New York County, New York for any action or proceeding arising out of or relating to the Agreement, and expressly waives any objection it may have to such jurisdiction or venue.
11.2. Relationship of the Parties. The parties are independent contractors and the Agreement does not constitute a partnership, joint venture or agency between the parties. Licensee acknowledges that its use of the Platform is non-exclusive and Workframe may provide software and services that are the same as or similar to the Software and services provided to Licensee to third parties, including competitors of Licensee.
11.3. Waiver. No waiver by either party of any right or remedy hereunder will be valid unless in writing and signed by the party giving such waiver. No waiver will be deemed to extend to any prior or subsequent default, misrepresentation, or breach.
11.4. Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, then the remaining provisions of the Agreement, if capable of substantial performance, will remain in full force and effect.
11.5. Attribution. Licensee agrees that Workframe may indicate that Licensee is a Workframe client on Workframe's website, through Workframe's marketing materials or through other reasonable means. Any such attribution will be consistent with Licensee's style guidelines or requirements as communicated to Workframe. The parties may agree to additional marketing efforts (i.e., case studies, events) in writing.
11.6. Assignment. Neither party may assign the Agreement without the other party's prior written consent, except if there is a merger, consolidation or sale of all or substantially all of a party's stock or assets.
11.7. Non-Solicitation. During the Term, Licensee will not (a) induce or attempt to induce any current Workframe employee or independent contractor to cease their relationship with Workframe, or (b) recruit any former Workframe employee or independent contractor to perform services for Licensee.
11.8. Force Majeure. Except for payment obligations, neither party will be liable to the other party for a failure to perform its obligations under the Agreement as a result of actions beyond its reasonable control that cannot be mitigated through the exercise of due care.
11.9. Notices. All notices or other communications required or permitted to be given under the Agreement will be in writing and sent via commercial overnight courier to each party at the address specified on the Order Form or such other address as the party provides to the other in writing following the Effective Date. Operational communications, including changing a party's notice address, may be delivered by email.
11.10. Entire Agreement; Amendment. The Agreement is the entire agreement between the parties with respect to its subject matter. No alterations or modifications of the Agreement will be valid unless made in writing and signed by the parties.
11.11. Execution. The Agreement may be executed in any number of counterparts, by digital signature or by a scanned signature page in a format such as PDF, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the parties.