Terms of Service
1. Introduction
This Agreement sets out the general terms and conditions under which WorkflowTitan agrees to provide, and Customer and End User agree to receive and use, the Services. By accessing or using the Services, Customer and End User acknowledge that they have read, understand, and agree to be bound by this Agreement, WorkflowTitan’s Privacy Notice, End User Conduct & Content Policy and the Supplemental Terms which are hereby incorporated into and made a part of this Agreement. Those who do not agree with the terms of this Agreement should not access or use the Services.
1.1 Authority
The individual agreeing to this Agreement represents to WorkflowTitan that they have the authority to bind Customer and any Affiliates to this Agreement.
1.2 End Users
To access or use the Services, an End User must sign up for an End User Account by registering for an account and providing their full legal name, a valid email address, and any other information required by WorkflowTitan to complete the registration process.
1.3 Relationship Between Customer and End User
The administrator of Customer’s Account can modify or re-assign roles of End Users and otherwise exercise the rights granted to the Customer pursuant to this Agreement. If a Customer elects to replace the administrator of its Customer Account, such administrator must agree to take any actions reasonably necessary and requested by WorkflowTitan or Customer to facilitate such transfer of authority. When utilizing the Services under a Customer Account, End Users may submit Customer Data in and to the Services, such as messages, conversations or files, and Customer may provide WorkflowTitan with instructions on what to do with it. For example, Customer may provision or deprovision access to the Services, manage permissions, retention and export settings and reassign inboxes. These choices and instructions of Customer’s administrator may result in the disclosure, modification, deletion or other Processing of certain or all Customer Data.
2. Use and Access to the Services
2.1 Accessing the Services
Access to the Services may be procured via an Order Form entered into by and between Customer and WorkflowTitan, or Customer may procure the Services (including purchasing additional End User subscriptions) through WorkflowTitan’s websites and Customer Settings. Customer must purchase a subscription for each End User who accesses or uses the Services.
2.2 Customer’s Responsibilities Regarding End Users
Customer is responsible for the conduct of its End Users and for ensuring that End Users abide by the terms of this Agreement at all times in connection with their use of the Services. It is Customer’s responsibility to (i) inform End Users of any relevant WorkflowTitan policies, practices and settings that Customer elects to enforce related to its End Users’ use of the Services; (ii) give all notices to, and obtain any rights, permissions or consents from its End Users that are necessary for Customer’s lawful use of the Services and the Processing of Customer Data by or on behalf of WorkflowTitan in connection with Customer’s use of the Services; and (iii) respond to and resolve any dispute between Customer and an End User related to or based on Customer Data and/or Customer’s Processing of that Customer Data in connection with Customer’s use of the Services.
2.3 Login Credentials
Customer and End User are responsible for all login credentials, including usernames and passwords, and WorkflowTitan shall not be liable for any damages or losses that may occur as a result of Customer’s failure, or the failure of End Users, to maintain the confidentiality of their login credentials. End Users are not permitted to share or use the same login credentials to the Services. WorkflowTitan reserves the right to refuse registration of or cancel passwords it deems inappropriate. Customer is responsible for notifying WorkflowTitan at support@WorkflowTitan.com if it becomes aware of any unauthorized use of or access to its Customer Account or any End User Account.
2.4 Acceptable Use
In addition to complying with the other terms set forth in this Agreement, Customer and End User agree to (i) use the Services in compliance with all applicable laws and regulations; and (ii) comply with the terms of WorkflowTitan’s End User Conduct and Content Policy.
2.5 Export Compliance
Customer and End User may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Customer represents that neither it nor any of its End Users are named on any U.S. government denied-party list. Customer shall not permit any End User to access or use the Services in a U.S. embargoed country or region or in violation of any U.S. export law or regulation.
2.6. Equipment
Customer shall be responsible for obtaining, maintaining and securing any Equipment used to access the Services.
2.7 Support and Maintenance
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by WorkflowTitan or by third party providers, or because of other causes beyond WorkflowTitan’s reasonable control, but WorkflowTitan shall use reasonable efforts to provide advance written notice of any scheduled service disruption. WorkflowTitan may access Customer Accounts or End User Accounts in order to respond to and resolve support requests.
3. Confidentiality
3.1 Protection of Confidential Information
The Receiving Party agrees (i) to protect the confidentiality of Confidential Information using at least the same degree of care and discretion as it uses with its own Confidential Information, but in no event less than a reasonable degree of care; and (ii) not to disclose (except in performance of the Services or as otherwise permitted by this Agreement) to any third person any such Confidential Information without the express prior written consent of the Disclosing Party. The Receiving Party may disclose Confidential Information to its Representatives on a strict need to know basis and only to those who are obligated to maintain the confidentiality of such Confidential Information under terms that are at least as protective as the terms set forth herein.
3.2 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent legally required in connection with any legal or regulatory proceeding, or where WorkflowTitan is the Receiving Party, in accordance with WorkflowTitan’s Law Enforcement Data Request Guidelines; provided, however, that in such event the Receiving Party will, when permitted by law, provide advance notice to the Disclosing Party.
3.3 Equitable Relief
The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party may be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
4. Data Protection, Usage, and Feedback
4.1 Data Protection
WorkflowTitan shall implement and maintain technical, organizational, and physical measures designed to protect the confidentiality, integrity and availability of Customer Data in WorkflowTitan’s possession, custody or control. The Parties agree to the terms of WorkflowTitan’s Data Processing Addendum which is incorporated into this Agreement.
4.2 Usage Data
Notwithstanding anything to the contrary, WorkflowTitan shall have the right where permitted by law to collect, aggregate and analyze anonymized or de-identified data and other information relating to Customer and End Users’ use of the Services, including, without limitation, information concerning Customer Data and data derived therefrom (collectively, “Usage Data”), and WorkflowTitan will be free during and after the Subscription Term to use Usage Data to analyze, support, develop, operate and improve the Services and other WorkflowTitan offerings and for other lawful business purposes, including without limitation, to generate industry benchmarks or best practice guidance, recommendations, or similar reports.
4.3 Feedback
By submitting any feedback or suggestions regarding the Services, or sharing such feedback with any Representative of WorkflowTitan, Customer grants to WorkflowTitan an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use such feedback or suggestion(s) for any purpose and without any obligation or compensation to Customer, End User, or any other Customer Representative. No rights or licenses are granted except as expressly set forth herein.
5. FEES
5.1 Calculation of Subscription Charges
Customer may purchase the Services either through WorkflowTitan’s website or by executing an Order Form. If the Parties execute an Order Form, Customer will make payment to WorkflowTitan in accordance with the terms of such Order Form. Subscription Charges are billed in advance and are nonrefundable unless otherwise stated herein. If Customer’s use of the Services exceeds the number of purchased End User Accounts set forth on an Order Form or otherwise requires the payment of additional Subscription Charges under this Agreement, Customer shall be charged for such usage and Customer agrees to pay the additional Subscription Charges from the date of first usage by End Users who were not paid for. Unless otherwise agreed upon in writing, the Subscription Charges for a renewal of the Subscription Term or for any additional subscriptions purchased by Customer shall be calculated according to the price(s) then specified on WorkflowTitan’s website.
5.2 Payment and Billing
Unless otherwise expressly set forth in this Agreement or an Order Form, all Subscription Charges are due in full upon commencement of the Subscription Term. Unless a substitute payment mechanism has been agreed to by WorkflowTitan, a valid credit card is required to subscribe to the Services and Customer authorizes WorkflowTitan to automatically charge Customer’s selected payment method for Subscription Charges on or after the starting date of each subsequent Subscription Term unless Customer’s subscription to the Services terminates as set forth in Section 6.2 below. WorkflowTitan may choose to bill through an invoice, in which case, full payment for invoices must be received by WorkflowTitan within thirty (30) days after the mailing date of the invoice. If Customer fails to pay its Fees within five (5) days of WorkflowTitan’s notice to Customer that payment is delinquent, or if Customer does not update payment information upon WorkflowTitan’s request, in addition to WorkflowTitan’s other remedies, WorkflowTitan may suspend access to and use of the Services by Customer and End Users. Customer agrees to promptly update its Customer Account information, including payment information, with any changes that may occur (for example, a change in billing address or credit card expiration date).
5.3 Taxes
Unless otherwise stated in an Order Form, WorkflowTitan’s charges do not include any Taxes. Customer is responsible for paying Taxes assessed in connection with Customer’s subscription to the Services except those assessable against WorkflowTitan as measured by its net income. WorkflowTitan will invoice Customer for such Taxes if WorkflowTitan believes that WorkflowTitan has a legal obligation to do so, and Customer agrees to pay such Taxes if so invoiced. WorkflowTitan agrees to exempt Customer from any Taxes for which Customer provides to WorkflowTitan a tax exemption certificate; provided, however, that no such exemption shall be extended to Customer following written notice to WorkflowTitan from a taxing authority of appropriate jurisdiction that Customer does not qualify for the claimed exemption.
5.4 Billing Disputes
If Customer believes that WorkflowTitan has billed Customer incorrectly, Customer must contact WorkflowTitan no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to WorkflowTitan’s customer support department at billing@WorkflowTitan.com.
5.5 Upgrades
If Customer chooses to upgrade its Subscription Plan or increase the number of End Users authorized to access and use a Service during a Subscription Term, any incremental Subscription Charges associated with such upgrade will be charged in accordance with the Subscription Charges that exist between Customer and WorkflowTitan during the applicable Subscription Term. The subscription term for additional End Users shall be coterminous with the then-current Subscription Term for the existing End Users. In any subsequent Subscription Term, Customer’s Subscription Charges will reflect any such upgrades. Any discount provided to Customer is applicable only to the initial Subscription Term detailed in an Order Form and will not be applied to any subsequent Subscription Terms.
5.6 Downgrades
Customer may not downgrade its Subscription Plan or reduce the number of End User subscriptions during any Subscription Term. If Customer desires to downgrade its Subscription Plan or reduce the number of End User subscriptions under any Subscription Plan for a subsequent Subscription Term, Customer must provide WorkflowTitan with thirty (30) days written notice prior to the end of Customer’s then-current Subscription Term. Downgrading a Subscription Plan may cause loss of content, features, or capacity of the Services as available to Customer under its Customer Account, and WorkflowTitan is not responsible for such loss. No credits or refunds will be issued for usage that is less than the purchased number of subscriptions or for unused time on subscriptions.
5.7 Payment Portals
If Customer mandates WorkflowTitan to use a vendor payment portal or compliance portal that charges WorkflowTitan a subscription fee or a percentage of any uploaded invoice as a required cost of doing business, Customer shall be invoiced by WorkflowTitan for, and Customer is obligated to pay, the cost of this fee.
6. Term and Termination
6.1 Term
Subject to termination provisions below, WorkflowTitan shall provide the Services to Customer for the initial Subscription Term, which shall then be automatically renewed and extended for the same duration as the previous Subscription Term. Either Party may request termination at least thirty (30) days prior to the end of the then-current Subscription Term, and Customer may submit such request for termination by notifying WorkflowTitan at billing@WorkflowTitan.com.
6.2 Termination
Either WorkflowTitan or Customer may terminate this Agreement if the other Party fails to cure any material breach of this Agreement within thirty (30) days after written notice to the other Party. Customer may terminate its subscription if it ceases its business operations or becomes subject to insolvency proceedings and such proceedings are not dismissed within sixty (60) days. Upon any termination, WorkflowTitan may immediately deactivate the Customer Account and any associated End User Account; provided, however, that in no event shall any such deactivation relieve Customer of any obligation to pay Fees accrued or payable to WorkflowTitan or of any liability pertaining to Customer’s use of the Services prior to such termination. In no event will WorkflowTitan’s termination for cause relieve Customer of its obligation to pay any Fees payable to WorkflowTitan for the period prior to termination. Except for Customer’s termination for WorkflowTitan’s uncured material breach of this Agreement, Customer must pay any unpaid Subscription Charges and Fees incurred for the remainder of the then-current Subscription Term.
6.3 Data Export
WorkflowTitan will make all Customer Data available to Customer for electronic retrieval for thirty (30) days after termination. After such thirty (30) days, WorkflowTitan shall delete Customer Data in accordance with its data deletion policy.
6.4 Suspension and Other Remedial Action
In addition to any other remedies that may be available, WorkflowTitan reserves the right to take that remedial action it deems necessary without liability to WorkflowTitan, including the immediate suspension or termination of a Customer Account or an End User Account, upon notice to Customer should Customer or an End User (i) fail to abide by WorkflowTitan’s End User Conduct and Content Policy; or (ii) if in WorkflowTitan’s sole discretion, such action is deemed necessary to prevent disruption to the Services or harm to others. WorkflowTitan will use commercially reasonable efforts to provide Customer with advance notice of terminations and suspensions when practicable, but if WorkflowTitan determines that the actions of a Customer or End User endanger the operation of the Services or pose a threat of imminent harm to others, WorkflowTitan may suspend access to the Services without notice. WorkflowTitan reserves the right to notify Customer and/or the administrator associated with the Customer Account with respect to an End User’s violation of the terms of this Agreement.
7. Intellectual Property Rights
7.1 Of WorkflowTitan
The Services are made available on a limited access basis, and no ownership right is conveyed to Customers or End Users. WorkflowTitan owns and retains all intellectual property rights in and to (i) the Services (excluding only the Customer Data) and all trademarks, logos and service marks utilized by WorkflowTitan in connection with the delivery of the Services; (ii) all improvements, enhancements or modifications of the Services; and (iii) any Software, applications, inventions or other technology developed in connection with supporting the Services.
7.2 Of Customer
As between Customer and WorkflowTitan, Customer shall own all intellectual property rights in and to the Customer Data. Customer grants to WorkflowTitan on behalf of itself and its End Users a worldwide, non-sublicensable, non-transferrable (except to a permitted assignee of WorkflowTitan), non-exclusive, limited license to access, use, copy, reproduce, Process, adapt, distribute, publish, transmit, export and display the Customer Data as reasonably necessary (i) to provide, maintain and update the Services; (ii) to prevent or address service, security, support and technical issues; and (iii) as expressly permitted by this Agreement or by Customer in writing.
8. Warranty and Disclaimer
8.1 WorkflowTitan Warranties
WorkflowTitan warrants that during an applicable Subscription Term, the Services will perform materially in accordance with the Documentation. WorkflowTitan’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for WorkflowTitan to use commercially reasonable efforts to correct the reported non-conformity, or if WorkflowTitan determines such remedy to be impracticable, either party may terminate the Agreement and Customer will receive a pro-rata refund of any pre-paid, unused Fees for the terminated portion of the Subscription Term. The warranties herein do not apply if the error was caused by Customer or End User’s misuse or unauthorized modification of (i) the Services or (ii) Third Party Services.
8.2 Customer Warranties
Customer warrants that it is entitled to transfer the Customer Data to WorkflowTitan so that WorkflowTitan and its authorized third party service providers may lawfully use, Process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf. Customer agrees to comply with all applicable laws in its use of the Services.
8.3 Mutual Warranties
Each Party represents and warrants to the other that (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of the Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
8.4 Disclaimer
EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WORKFLOWTITAN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WORKFLOWTITAN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, VIRUS-FREE OR FREE FROM HARMFUL COMPONENTS; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. WORKFLOWTITAN DOES NOT WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. WORKFLOWTITAN SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD PARTY PLATFORMS, THIRD PARTY MESSAGING APPLICATIONS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF WORKFLOWTITAN.
9. Indemnification
9.1 WorkflowTitan’s Indemnification Obligations
WorkflowTitan will defend Customer Parties from and against any third party claim alleging that the Customer’s use of the Services as contemplated under this Agreement violates the intellectual property rights of such third party and will indemnify the Customer Parties for damages awarded against the Customer Parties in connection with or as a result of such claim or any amounts paid by Customer Parties under a settlement approved by WorkflowTitan, including reasonable fees of attorneys engaged by WorkflowTitan in connection with the defense or settlement of such claim. Notwithstanding the foregoing, WorkflowTitan shall not be required to indemnify Customer Parties to the extent the claim against Customer Parties arises from (i) Customer or any End User’s use of the Services in a manner that violates this Agreement; (ii) modification of the Services by anyone other than WorkflowTitan or its Representatives, unless approved by WorkflowTitan; (iii) the combination, operation or use of the Services with software not provided by WorkflowTitan, unless approved by WorkflowTitan; or (iv) violations of third party rights caused by Customer Data.
9.2 Customer’s Indemnification Obligations
Customer will defend WorkflowTitan Parties from and against any third party claim, action, suit, proceeding or demand arising from or related to (i) Customer’s or an End User’s violation of applicable laws while using the Services; and (ii) any third party claim arising from or related to Customer Data, and will indemnify WorkflowTitan Parties for damages awarded against the WorkflowTitan Parties in connection with or as a result of such claim or any amounts paid by WorkflowTitan Parties under a settlement approved by Customer, including reasonable fees of attorneys engaged by Customer in connection with the defense or settlement of such claim.
9.3 Potential Infringement
If due to a claim of infringement the Services are held by a court of competent jurisdiction or believed by WorkflowTitan to be infringing, WorkflowTitan may at its option and expense, (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for Customer a license at WorkflowTitan’s expense to continue using the Services; or (iii) if neither of the foregoing are commercially practicable, terminate this Agreement and Customer’s rights hereunder, in which case WorkflowTitan’s sole liability (in addition to its indemnification obligations above) shall be to provide Customer with a pro-rated refund of prepaid but unused Subscription Charges applicable to the remaining portion of Customer’s current Subscription Term. Sections 9.1 and 9.3 state WorkflowTitan’s sole liability with respect to, and Customer Parties’ exclusive remedy against WorkflowTitan for, any infringement claim.
9.4 Indemnification Process
In the event of a potential indemnity obligation, the Party seeking indemnification must (i) provide prompt notice to the indemnifying Party concerning the existence of an indemnifiable claim; (ii) promptly provide the indemnifying Party with all information and assistance reasonably requested; and (iii) cooperate fully with the indemnifying Party in defending the claim. Failure to give prompt notice shall not constitute a waiver of a Party’s right to indemnification and shall affect the indemnifying Party’s obligations under this Agreement only to the extent that the indemnifying Party’s rights are materially prejudiced by such failure or delay. The indemnifying Party shall have full control and authority over the defense of any claim; provided, however, that any settlement requiring the Party seeking indemnification to admit liability or make any financial payment shall require such Party’s prior written consent, not to be unreasonably withheld or delayed.
10. Limitation of Liability
10.1 Exclusion Of Damages
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) SHALL EITHER PARTY TO THIS AGREEMENT, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS, BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA , BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY OTHER TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
10.2 Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, WORKFLOWTITAN’S AGGREGATE LIABILITY TO CUSTOMER, ITS AFFILIATES, OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE SERVICES OR PROFESSIONAL SERVICES, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES AND/OR PROFESSIONAL SERVICES FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES AND PROFESSIONAL SERVICES FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WORKFLOWTITAN WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WORKFLOWTITAN HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES AND/OR THE PROFESSIONAL SERVICES PROVIDED FOR IN THIS AGREEMENT. THE FOREGOING LIMITATIONS IN THIS SECTION 10.2 SHALL NOT APPLY TO CLAIMS OR DAMAGES ARISING FROM (1) THE INDEMNIFICATION OBLIGATIONS HEREIN, OR (2) CUSTOMER’S NON-PAYMENT OF UNDISPUTED FEES DUE AND PAYABLE.
10.3 Limitation of Liability in the Aggregate
THE LIMITATION OF LIABILITY PROVIDED FOR HEREIN APPLIES IN AGGREGATE TO ANY AND ALL CLAIMS BY CUSTOMER AND ITS AFFILIATES, AND SHALL NOT BE CUMULATIVE.
10.4 Jurisdiction-specific Exclusions
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for a Party’s own fraud, willful injury to the person or property of another, or violation of law which means that some of the above limitations may not apply to Customer. IN THESE JURISDICTIONS, WORKFLOWTITAN’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
10.5 Enforceable Against WorkflowTitan
Any claims or damages that Customer may have against WorkflowTitan shall only be enforceable against WorkflowTitan, Inc. and not any other entity, nor any officers, directors or Representatives of WorkflowTitan or any other entity.
10.6 The provisions of this Section 10 allocate the risk between the Parties under this Agreement and the Parties have relied on these limitations in determining whether to enter into this Agreement.
11. Use of Third Party Services
The Services allow for various Third Party Services to be used in connection with the Services. Customer’s use of such Third Party Services, and any exchange of Customer Data between Customer and the provider of such Third Party Service is solely between Customer and the Third Party Service provider. WorkflowTitan does not warrant or support any Third Party Service or other non-WorkflowTitan product or service, regardless of whether such Third Party Service is promoted or made available through the Services or is designated by WorkflowTitan as “certified” or “working with” the Services. Customer acknowledges that providers of such Third Party Services may have access to Customer Data in connection with the interoperation and support of such Third Party Service with the Services and that, as between Customer and WorkflowTitan, Customer is solely responsible for reviewing and complying with such Third Party Service provider’s terms of use, practices and policies. To the extent Customer authorizes the access, transmission or Processing of Customer Data through a Third Party Service, WorkflowTitan shall not be responsible for any disclosure, modification, deletion or other Processing of such Customer Data by the Third Party Service provider or for any act or omission on the part of such Third Party Service provider.
12. Miscellaneous
12.1 Governing Law; Venue
This Agreement and any disputes arising under it will be governed by the laws of the State of California without regard to its conflict of laws provisions, and WorkflowTitan, Customer and End User consent to the personal jurisdiction and venue of the state or federal courts located in San Francisco, California. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
12.2 Arbitration
Any dispute arising out of or in any way relating to this Agreement shall be resolved according to California law and exclusively by binding arbitration before a single arbitrator with the Judicial Arbitration and Mediation Service (JAMS) and pursuant to the then existing arbitration rules at JAMS. If the Parties cannot agree upon selection of an arbitrator, then JAMS shall appoint an arbitrator experienced in the enterprise software industry. The place of the arbitration will be San Francisco, California unless otherwise agreed upon by the Parties. The arbitration will be conducted in English. The arbitrator shall provide detailed written findings of fact and conclusions of law in support of any award. Judgment upon any such award may be enforced in any court of competent jurisdiction. The Parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the Parties expressly waive their right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth herein is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the portions of this section mandating arbitration shall be deemed null and void in their entirety and the Parties shall be deemed to have not agreed to arbitrate disputes. Customer may opt out and not be bound by the arbitration and class action waiver provisions by sending written notice to WorkflowTitan within thirty (30) days of the Effective Date of this Agreement between Customer and WorkflowTitan. Written notice should be sent to the address shown below. If Customer opts out of arbitration, WorkflowTitan will also not be bound to arbitrate. Notwithstanding the foregoing, either Party shall be entitled to seek injunctive relief as set forth in the Confidentiality section above to stop unauthorized use of any Confidential Information or the Services or infringement of a Party’s intellectual property rights. Disputes, claims, or controversies concerning either Party’s intellectual property rights or claims of piracy or unauthorized use of the Services shall not be subject to arbitration. The Parties further agree that the prevailing Party in any action or proceeding to enforce any right or provisions under this Agreement, including any arbitration or court proceedings, will be entitled to recover its reasonable costs and attorneys’ fees.
12.3 Legal Notices
WorkflowTitan may provide general notices related to the Services that are applicable to Customer via email or notification within the Services and such notices shall be deemed to satisfy any legal requirement that notice be made in writing. Legal notices (including all legal notices from Customer) must be sent via email, first class mail, airmail, or overnight courier to the address of the Customer provided via an Order Form. Legal notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Legal notices to WorkflowTitan shall be sent to:
WorkflowTitan, Inc.
Attn: Legal Department
1001A E Harmony Rd. #179, Fort Collins, CO 80525
If Email: legal@WorkflowTitan.com
General support-related inquiries to WorkflowTitan can be sent to support@WorkflowTitan.com.
12.4 Publicity; Use of Customer’s Marks
WorkflowTitan shall have the right to use Customer’s name and logo in a factual manner for marketing or promotional purposes on WorkflowTitan’s website and in other communication with existing or potential WorkflowTitan customers. The Parties shall work together in good faith to issue at least one mutually agreed upon press release upon Customer’s launch of the Services, and Customer otherwise agrees to reasonably cooperate with WorkflowTitan to serve as a reference upon request.
12.5 Severability; No Waiver
In the event that any provision of this Agreement is found to be invalid or unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect and remain enforceable between the Parties. No waiver of any provision of this Agreement shall be deemed a further or continuing waiver of such provision or any other provision, and a Party’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
12.6 Assignment
Neither this Agreement nor any of the rights or licenses granted hereunder may be transferred or assigned by either Party without the other Party’s express prior written consent (not to be unreasonably withheld or delayed); provided, however, that either Party may assign this Agreement and all Order Forms related to Customer’s use of the Services upon written notice (if by Customer via email to legal@WorkflowTitan.com) without the other Party’s consent to an Affiliate or to its successor in interest in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; provided, however, that should Customer assign this Agreement to any competitor of WorkflowTitan, then WorkflowTitan shall have the right to terminate this Agreement and Customer’s use of the Services upon notice.Any other attempt to transfer or assign this Agreement or a Customer Account will be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
12.7 Force Majeure
Neither Party shall be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a Force Majeure Event. The Party experiencing such Force Majeure Event shall be relieved from its obligations (or part thereof) as long as the Force Majeure Event lasts and hinders the performance of said obligations (or part thereof); provided, however, that the Party experiencing such Force Majeure Event shall promptly notify the other Party of such event and shall make reasonable efforts to mitigate the effects of the Force Majeure Event.
12.8 Relationship of the Parties
The Parties are and shall be independent contractors with respect to all Services provided under this Agreement. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties, and Customer does not have any authority of any kind to bind WorkflowTitan in any respect whatsoever. There are no third party beneficiaries to this Agreement. Without limiting this section, Customer’s End Users are not third party beneficiaries to Customer’s rights under this Agreement.
12.9 Use by Affiliates and Extension of Rights
Customer may extend its rights, benefits and protections provided herein to its Affiliates provided that Customer remains responsible for and liable for such Affiliate’s use of the Services and compliance with this Agreement.
12.10 Trial Subscriptions
WorkflowTitan may, at its option, offer new customers a limited free trial of the Services, subject to this Agreement. Notwithstanding anything to the contrary herein, WorkflowTitan shall have the right to terminate a Customer free trial at any time and for any reason.
12.11 Beta Access
Select Customers may be invited to participate in the review and testing of pre-release versions of new tools and enhancements within the Services which may be identified as “beta,” “early access,” “evaluation,” “preview,” “test,” “pre-release,” or a similar term. Customer acknowledges and understands that its participation in such beta offerings is (i) not required and is at Customer’s own risk; (ii) made available on an “as is” basis without warranties of any kind; and (iii) may be subject to additional terms related to its use. WorkflowTitan will have no liability arising out of or in connection with Customer’s use of such beta offerings.
12.12 English Version Controls
Non-English translations of this Agreement may be provided for convenience only. In the event of any ambiguity or conflict between translations, the English version is authoritative and controls.
12.13 Entire Agreement
This Agreement, including all attachments, policies, exhibits, addendums, and any Order Form(s) related hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes and replaces any prior or contemporaneous representations, understandings and agreements, whether written or oral, with respect to its subject matter. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the Order Form shall prevail. No terms or conditions stated in any Customer purchase order or similar documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be considered null and void.
12.14 Updating this Agreement
WorkflowTitan reserves the right to update or modify this Agreement from time to time as its business evolves by posting an updated version of this Agreement on its website. If, in WorkflowTitan’s sole discretion, it believes that the modifications being made are material, WorkflowTitan will notify Customer and End User prior to the change taking effect. By continuing to utilize the Services after the effective date of any update to this Agreement, Customer and End User will be deemed to have accepted such update.
