These Terms of Service constitute an agreement (this “Agreement” or these “Terms”) between you (“you”, “your”, “user” or “Customer”) and WorkSimple Inc., a California corporation with its principal place of business at 609 Mission #300, San Francisco, CA 94105 (“WorkSimple”, “Service Provider”, “us”, “we” or “our”) for recurring billing services and any related products or services (“Services”). This Agreement governs both the Services and any assigned account (“Account”) used in connection with the Services.
Any of the following actions constitute your agreement, without limitation or qualification, to be bound by, and to comply with, this Agreement: (i) your initialization or registration of the Services, through the WorkSimple website (getworksimple.com) or through any of the WorkSimple subdomains (the WorkSimple website and subdomains are collectively referred to herein as, the “Site”); or (ii) through the use of your Account and password; or (iii) your use of the Site.
Capitalized terms not otherwise defined herein shall have the meaning given to them in Section 10 below.
Subject to the terms and conditions of this Agreement and during the Term, WorkSimple hereby provides Customer with the Services, including, but not limited to, a limited, non-exclusive, non-transferable (except in connection with an assignment under Section 9 herein) and terminable right to access and to use WorkSimple’s online social collaboration suite and modules solely for employee collaboration and communication in accordance with the this Agreement. This Agreement shall also apply to any modules or features subsequently made available by WorkSimple to Customer, and/or that have been purchased by Customer that augment or enhance the Service. WorkSimple shall host the Service and may update the functionality and user interface of the Service from time to time in its sole discretion and in accordance with this Agreement as part of its ongoing mission to improve the Service and its customers’ use of the Service.
The rights granted in this Agreement and Customer’s use of the Service shall not include service bureau use, outsourcing, renting, or time-sharing of the Service. Customer agrees that the right granted herein is not a concurrent user right and is conditioned on Customer’s compliance with this Section. Customer may not (and may not allow any third party to) copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code, modify the Service in any manner or form, or use unauthorized modified versions of the Service, including (without limitation) for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service. Customer is expressly prohibited from sublicensing use of the Service to any third parties. Customer agrees that WorkSimple shall own all rights, title and interest in and to all intellectual property rights in the Service. Except as provided in this Agreement, the right granted to Customer does not convey any other rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by WorkSimple. You agree not to collect or harvest any personally identifiable information, including account names, from the Service and not to use the communication systems provided by the Service for any commercial solicitation purposes. You agree not to use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages.
The term of this Agreement (the “Term”) begins on the date we activate Services for your Account. This Agreement will continue from month to month until terminated by either party pursuant to the terms hereof.
You acknowledge that WorkSimple may charge a fee for the use of any Services, provided that WorkSimple notifies you of any such fee before you incur it. Subject to the foregoing, you agree to pay any fees incurred by you.
Any late payments shall be subject to a service charge equal to 1.5% of the amount due (calculated on a monthly basis) or the maximum amount allowed by law, whichever is less. Customer further agrees to pay all foreign, federal, state, and local taxes, if applicable, to Customer’s access to, use, or receipt of the Service, excluding WorkSimple’s operational and/or income taxes.
You may use your “Account Settings” to control your “Member Profile.” By providing Work Simple your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. Customer further agrees that WorkSimple may provide any and all notices, statements, and other communications to Customer through either email, posting on the Service (or other electronic transmission) or by mail or express delivery service. WorkSimple recommends that the main and billing contact email addresses be group addresses (such as email@example.com so that notices are reviewed promptly and not delayed due to the absence of one individual. In addition, WorkSimple may act and rely on all information and instructions provided to WorkSimple from the above-specified email address.
You agree to indemnify, defend, and hold harmless WorkSimple, and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys’ fees) arising out of or relating to any actual or threatened claim, suit, action or proceeding brought or threatened by a third party arising out of or relating to, but not limited to: any Content you submit, post, transmit, or make available through the WorkSimple Service; your use or misuse of the WorkSimple Service; your connection to the WorkSimple Service; your violation of this Agreement; or your violation of any rights (including intellectual property rights) of a third party.
Your indemnification obligations under this Section are conditioned on the Company notifying you promptly in writing of such action, you giving the Company sole control of the defense thereof and any related settlement negotiations, and your cooperation and, at Company’s reasonable request, assisting in such defense.
WorkSimple provides limited warranties of functionality, service level, and security, data maintenance and backup only as expressly provided in the Terms of Service.
EXCEPT FOR THE WARRANTIES STATED EXPLICITLY HEREIN, WORKSIMPLE DOES NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE SYSTEM THAT MAKES THE SERVICE AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THE TERMS OF SERVICE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY WORKSIMPLE. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND WORKSIMPLE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OF COURSE OF PERFORMANCE. EXCEPT FOR THE WARRANTIES STATED IN THE TERMS OF SERVICE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.
CUSTOMER AGREES THAT THE CONSIDERATION WHICH WORKSIMPLE IS CHARGING FOR THE SERVICE DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY WORKSIMPLE OF THE RISK OF CUSTOMER’S INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OR DISCLOSURE OF CUSTOMER DATA, LOST REVENUE, LOST PROFITS, OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION TO THE MAXIMUM EXTENT PERMITTED BY LAW ARISING FROM OR IN CONNECTION WITH THESE TERMS. The maximum liability of WorkSimple arising out of or in the connection with this Agreement or any use or other employment of the Service, whether such liability arises from any claim based on breach or repudiation of contract, breach of warranty, negligence, tort, or otherwise, shall in no case exceed the equivalent of 12 months in license fees applicable at the time of the event. The essential purpose of this provision is to limit the potential liability of the parties arising from this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with the license of the Service and that, were WorkSimple to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions set forth above may not apply to Customer.
Either party may terminate this Agreement upon written notice to the other party in the event of an uncured material breach of any provision of this Agreement by the other party. Such notice by the complaining party shall expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach (“Notice”). Following receipt of such Notice, this Agreement shall terminate only if the alleged breaching party has not cured such alleged breach within thirty (30) days. Upon termination or expiration of this Agreement, Customer shall have no rights to continue use of the Service. If this Agreement is terminated by Customer for any reason other than a termination expressly permitted by this Agreement, Customer agrees that WorkSimple shall be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated by Customer for an uncured breach by WorkSimple, WorkSimple shall refund the pro rata portion of any fee paid by Customer for the terminated portion of the Term.
The Company may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if, in the Company’s sole determination, you violate any of the terms or conditions of this Agreement, including the following prohibited actions: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Service; (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (v) interfering with the proper working of the Service; or, (vi) bypassing the measures we may use to prevent or restrict access to the Service, including, but not limited to, registering for the Service with a non-Network email address. Upon termination for any reason, you continue to be bound by this Agreement.
If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should try to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect.
Your WorkSimple account is non-transferable. You may not delegate your duties under this Agreement or assign these Terms, in whole or in part. WorkSimple may assign this Agreement to any successor or purchaser of WorkSimple or all or substantially all of its assets. WorkSimple reserves the right to name Customer as a user of the Service.
Any unauthorized use of any WorkSimple computer system is a violation of this Agreement and certain federal and state laws, including without limitation the Computer Fraud and Abuse Act (18 U.S.C. S 1030 et seq.), Section 502 of the California Penal Code and Section 17538.45 of the California Business and Professions Code. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties.
You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over the Company, either specific or general, in jurisdictions other than California. Any dispute between the parties arising out of this Agreement shall be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in San Francisco, CA. You hereby waive any right to a jury trial of any such dispute. This Agreement shall be governed by the laws of the State of California without giving effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, interpretation or performance of these Terms, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs.
The failure of WorkSimple to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision.
Neither party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery of Service date shall be extended to the extent of any delay resulting from any force majeure event. You confirm and warrant to the Company that you have all the rights, power and authority necessary to enter into this Agreement.
“Customer Data” shall mean any data, information, or other materials of any nature whatsoever, provided to WorkSimple by Customer in the course of implementing and/or using the Service.
“Electronic Communications” shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
“User(s)” means a unique login for each general access user.
CUSTOMER ACKNOWLEDGES THAT THEY HAVE READ THIS AGREEMENT AND UNDERSTAND AND AGREE TO BE BOUND BY ITS TERMS.
Members with questions about the WorkSimple Terms and any of the aforementioned statements may contact WorkSimple by email at firstname.lastname@example.org.