Terms of Use
Privacy Statement
WorkXpress will not sell data provided to third party vendors ever.
Master Subscription Agreement
WORKXPRESS TERMS OF USE:
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF WORKXPRESS'S ONLINE SERVICE, INCLUDING LOCALLY HOSTED AND OFFLINE COMPONENTS (COLLECTIVELY, THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
Welcome
As part of the Service, WorkXpress will provide you with use of the Service, including a browser-enabled interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the WorkXpress website incorporated by reference herein, including but not limited to WorkXpress's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement. The Service is offered with the following features;
- A WorkXpress Account and with access to that account provided by the WorkXpress Account Portal at projects.WorkXpress.com.
- An applications library of publicly available Application components that can be browsed, and whose content may be merged into an Application project
- Collectively, the ability to manage the lifecycle of an application from a Development status into Testing and Production statuses
- Collectively, the ability to create and administer Public or Private Cloud Servers including setup, performance monitors, data backup, recovery and other functions
- The ability for individuals or organizations to use a Public or Private Cloud Server system to serve a unique web-based application
- Collectively, the ability to create and manage certain Business Models from within the WorkXpress Account, including special terms and conditions related to commercial delivery as a publisher, service provider, host, selling agent and/or affiliate.
- Other online, offline, remote or local components
In addition, we may offer promotional credits towards WorkXpress with no further obligations.
1. Privacy & Security; Disclosure
WorkXpress's privacy and security policies may be viewed through its website at http://www.WorkXpress.com/. WorkXpress reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users, when they initially log in, may be asked whether or not they wish to receive marketing and other non-critical Service-related communications from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preference under Personal Setup. WorkXpress users using promotional credits or offers may not have the option of opting out unless they terminate their Account with WorkXpress. Note that because the Service is a hosted, online application, WorkXpress occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that WorkXpress can disclose the fact that you are a paying customer.
2. License Grant & Restrictions
WorkXpress hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by WorkXpress and its licensors. You may not access the Service if you are a direct competitor of WorkXpress, except with WorkXpress's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. Notwithstanding section 24 below, you shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. User licenses cannot be shared or used by more than one individual.
You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks. WorkXpress offers integration capabilities via an application programming interface, or API. WorkXpress reserves the right to monitor your usage of the API and to interrupt such usage at any time should it be determined that said usage is detrimental to the User experience of other Users. It is important to note that, for your benefit, WorkXpress offers you the opportunity to setup and maintain WorkXpress servers on exclusively Dedicated Public Clouds and on your own authorized Private Clouds such that your usage of the API or other uses that interfere or disrupt the integrity or performance of the Service shall only affect Your Users.
All Users of Your WorkXpress Account (“Account Users”), and the Users of any Applications managed by Your Account including those applications contained in another Account but which are subject to Your Account are referred to herein as “Your Users” or “Users”, irrespective of the business relationship between You and the User, and irrespective of the kind, source or nature of the Applications deployed including those Applications filling a Development, Testing or Production role and those Applications being deployed for commercial purposes. You will be billed for the Hosting of your Account Users, plus each User Software License of every Production Application managed from within your WorkXpress Account. You will be billed for any Cloud Servers managed by Your Account, and you will be billed for use of any 3rd Party Services such as text messaging or bulk email. You will be held responsible for the timely payment of these bills and any other relevant terms in this Agreement. To be clear, You are solely responsible for all activities within your WorkXpress Account, including the activities of Your Users.
3. Your Responsibilities
You are responsible for all activity occurring by Your Users and within Your WorkXpress Account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify WorkXpress immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to WorkXpress immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another WorkXpress user or provide false identity information to gain access to or use the Service.
4. Account Information and Data
WorkXpress does not own any data, information or material that You submit to the Service in the course of using the Service ("Customer Data"). For purposes of this Section 4, adding applications from the Applications Library shall not be considered as if submitted to the Service by the Customer, and shall not be treated as “Customer Data”, except wherein those Applications are identified as “customizable”, in which case additional changes to the original application are considered “Customer Data”.
You hereby affirm that WorkXpress makes available tools to assist You in maximizing Your data quality and Production environment stability, not limited to choices over Cloud Server vendors, data backup routines, data file locations, Application version repository storage and API or other access to Customer Data. You acknowledge that from time to time, Customer Data held in non-Production environments may be subject to action by WorkXpress that could cause it to lose usefulness, and that you will not use Development or Testing Applications to store valuable data. You further acknowledge that all decisions to generate backups of Customer Data, to store those backups at a safe location, or to release applications to or maintain data in a more stable production environment, belong to You, subject to the terms and conditions of this Agreement.
You, not WorkXpress, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and WorkXpress shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), WorkXpress will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. WorkXpress reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and WorkXpress shall have no obligation to maintain or forward any Customer Data.
5. Intellectual Property Ownership
WorkXpress alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the WorkXpress Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the WorkXpress Technology or the Intellectual Property Rights owned by WorkXpress. The WorkXpress name, the WorkXpress logo, and the product names associated with the Service are trademarks of WorkXpress or third parties, and no right or license is granted to use them.
6. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any additional terms, conditions, warranties or representations associated with such activity, are solely between you and the applicable third-party. WorkXpress and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, promotion or delivery between you and any third-party. WorkXpress does not endorse any sites on the Internet that are linked through the Service, or that link to the Service. WorkXpress provides these links or 3rd party services to you only as a matter of convenience, and in no event shall WorkXpress or its licensors be responsible for any content, products, or other materials on or available from such sites. WorkXpress provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
As a Service Delivery Partner identified in Section 24, you may offer goods and/or services that rely on or relate to this Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between You and the applicable third-party, notwithstanding those terms described in Section 24 above or elsewhere in this Agreement, or established within the Service.
7. Service Level Agreements and Excess Usage
Under WorkXpress’s free and paid hosting options, WorkXpress agrees to provide a reasonable amount of resources, including bandwidth, processor and storage as determined by WorkXpress.
However at any time you may use the WorkXpress Service to order a dedicated Public Cloud or Private Cloud Server. Each infrastructure provider of a Public Cloud or Private Cloud Server may provide their own Service Level Agreement, requirements or restrictions. It is up to You, the purchaser of the dedicated Cloud Server to select the cloud provider and appropriate amount of resources for your usage. WorkXpress makes no representations or warranties about the fitness of a particular Cloud choice for a particular use.
WorkXpress will use reasonable efforts to notify you when server usage exceeds server capacity in terms of disk storage or other resources; however, any failure by WorkXpress to so notify you shall not affect your exclusive responsibility for selecting an appropriate amount of resources, or for limiting Your User’s usage.
WorkXpress provides a range of other services that are sometimes provided by a third party. WorkXpress assumes no responsibility for any Service Level Agreement provided by any third party, or for excess usage of any service by Your Users, or the consequences thereof.
WorkXpress reserves the right to establish or modify its general practices and limits relating to third party services and excess usage at any time, including but not limited to the right to require You to move Your Applications to a dedicated Public or Private Cloud associated with Your Account at any time.
8. Payment of Fees
8a. The WorkXpress Account Balance
All access to Software, Hosting or 3rd Party Services may only be purchased from WorkXpress using funds from a WorkXpress Account Balance associated with your WorkXpress account. An account holder can fund the WorkXpress Account Balance up to a maximum amount determined by WorkXpress (“Limit”), using either a credit or debit card; a prepaid card or promotional code with a specified value where available; or other payment methods approved by WorkXpress and made available from time to time in each specific country.
Funds can be added to your WorkXpress Account Balance from within your WorkXpress Account on either a one-time basis or by setting up an authorization for automatic recharging. When automatic recharging is authorized within your WorkXpress account, WorkXpress will charge your credit card according to the parameters specified or when the WorkXpress Account Balance falls below zero, or is being charged an amount that would take it below zero, or reaches a designated threshold. WorkXpress has no obligation to reverse or refund these charges made on your credit or debit card.
Except as otherwise permitted by applicable law or as expressly provided in this Agreement, funds added to the WorkXpress Account Balance are non-refundable and non-transferable. WorkXpress Account Balance funds have no value outside WorkXpress products and services and can only be used to purchase access to Software, Hosting and 3rd Party Services through the WorkXpress Account. Subject to applicable law, WorkXpress Account Balance funds that are deemed abandoned or unused by law will not be returned or restored. WorkXpress reserves the right to modify its Fees, charges and Incentives, and to introduce new Fees and Incentives at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
8b. Fees
WorkXpress charges include Fees for Software and for Hosting, or for a Dedicated Cloud Server, or for other 3rd Party Services. WorkXpress charges your WorkXpress Account Balance nightly for all activity that occurred during the previous day, or in the case of 3rd Party Services your WorkXpress Account Balance is charged immediately as the service is consumed. In the event that any Software, Hosting or Dedicated Cloud Server price was quoted to cover a period other than one day, that price will be prorated to one day and billed daily regardless of the quoted period. You must provide WorkXpress with an approved and valid payment method or approved purchase order information as a condition to signing up for any paid aspect of the Service.
Software Fees:
Use of a Production Application is subject to a Software Fee (“Software Licensing”, “User Licensing”, “Software”, and “Licensing”). The Software Fee may include component fees for Licensing and Support; however those fees will be bundled under a single fee called Software. Software Fees may include a flat rate Fee and/or a flat or tiered per-User Fee. In certain circumstances, and with an accompanying “Infrequent User Approval” provided through the Service, WorkXpress will make available an “Infrequent User License”. Users that meet the requirements of the Infrequent User License as described in the Infrequent User Approval may have the Software Fee reduced by the amount specified in the Infrequent User Approval.
Hosting Fees:
Use of any aspect of the WorkXpress Service including use of the WorkXpress Account, use of a Development or Testing Application, or use of a Production Application, is subject to a Hosting Fee (“Hosting Fee”, “Hosting”, “Cloud Hosting Fee”, and “Cloud Fee”). Hosting Fees may include a flat rate Fee and/or a flat or tiered per-User Fee.
About Software and Hosting Fees:
You shall pay all fees or charges to your WorkXpress Account in accordance with the fees, charges, and billing terms in effect for each given Application at the time a Fee or charge is due and payable. The initial charges for Software and for Hosting may include any flat rate Fees and/or the total User Licenses requested (the total of all User Licenses for Production applications) times the Software Fee and/or Hosting Fee currently in effect. You are responsible for paying for all Software and Hosting ordered for the entire License Term for all of Your Users, whether or not such User licenses or Hosting are actively used. Software and Hosting Fees can be added to a Production Application at any time by Users of the WorkXpress Account, or sometimes directly through the Application. Added Software and/or Hosting Fees will be subject to the following: (i) added Licenses and/or Hosting will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the License and/or Hosting Fee for the added licenses will be the then current, generally applicable License or Hosting Fee; and (iii) Licenses and/or Hosting added in the middle of a billing period will be charged in full for that billing period.
Dedicated Cloud Server Fees:
Applications may also be installed on a Dedicated Public or Private Cloud associated with Your Account, in which case Hosting Fees are not charged. Dedicated Public or Private Cloud Servers are billed as described below;
Public Cloud Servers:
In Your WorkXpress Account Your User’s may order a dedicated Public Cloud Server through an infrastructure vendor made available by the WorkXpress Service. For any Public Cloud Server purchase, a deposit may be collected immediately that is calculated based on an estimation by WorkXpress of the first full period of service. This deposit amount may be adjusted from time to time at the discretion of WorkXpress. At the end of each period the entire Cloud Server bill will be immediately due and payable. You hereby authorize WorkXpress to remove funds from the deposit to cover any Cloud Server expenses at any time. If at any time a cloud balance or deposit request is not paid immediately, you acknowledge that WorkXpress may immediately terminate Your Public Cloud Server.
Private Cloud Servers:
In Your WorkXpress Account, Your User’s may setup a dedicated Private Cloud Server. WorkXpress charges a Fee to manage a Private Cloud Server and these Fees are collected at the end of each period.
3rd Party Services:
Any application may utilize a 3rd Party Service such as but not limited to text messaging, bulk email and integrated voice response (IVR). Such 3rd Party Services will incur additional charges based on usage. WorkXpress attempts to collect fees for a service before the service is processed, and if it is unable to collect the fee, usage of the service will be denied.
9. Billing and Renewal
WorkXpress charges and collects Software and Hosting Fees, and Dedicated Public and Private Cloud Server Fees at the end of each day of usage of the Service, unless otherwise mutually agreed upon. WorkXpress will automatically renew and bill your WorkXpress Account Balance at the end of each billing period for the entire period. The renewal charge will be calculated based on the fees in effect during the prior Term, unless WorkXpress has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter.
For Dedicated Public Cloud Server Fees WorkXpress requires a Deposit in advance which it may adjust during the period, and then charges in full for the Public Cloud Server at the end of the period. Use of a Dedicated Cloud Server at the beginning of a period or at any point during that period constitutes your acceptance to pay the charge received at the end of said period. WorkXpress will automatically renew and charge your WorkXpress Account Balance at the end of each billing period for the entire period or for any adjustment to the Dedicated Cloud Deposit.
Fees for other services such as 3rd Party Services will be charged on an as-quoted basis. 3rd Party Services Fees are billed at the time the 3rd Party Service is used.
WorkXpress's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of any and all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on WorkXpress's income. You agree to provide WorkXpress with complete and accurate billing information for Your Account. This includes contact information for the WorkXpress Account User designated as the Owner, Billing Contact and the Technical Contact, which may or may not be the same Account Users. This information includes your legal company name, street address, and telephone number as well as the e-mail address, name and telephone number of the authorized Account Owner, Billing Contact and Technical Contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, WorkXpress reserves the right to terminate your access to the Service in addition to any other legal remedies. Unless WorkXpress in its discretion determines otherwise, entities will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes. If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
10. Non-Payment and Suspension
In addition to any other rights granted to WorkXpress herein, WorkXpress reserves the right to suspend or terminate this Agreement and your access to the Service and your access to any vendors services managed by the Service if your WorkXpress Account Balance falls below zero, at which point your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for Software, Hosting, Cloud Servers, Revenue Share and Added Incentives during any period of suspension. If you or WorkXpress initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the terms of this Agreement. You agree that WorkXpress may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. WorkXpress reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that WorkXpress has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
11. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. For Software License and Hosting Purchases and for Cloud Server Purchases, the Initial Term will be as you elect during the online subscription process or as otherwise mutually agreed upon commencing on the date you agree to pay for the Service by completing the online subscription form or as listed in a valid Order Form or Partner Service Delivery Agreement or otherwise. If no Initial Term is specified, the Term will be daily. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive Renewal Terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at WorkXpress's then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the Statement for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), WorkXpress will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that WorkXpress has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
12. Termination for Cause
Any breach of your payment obligations or unauthorized use of the WorkXpress Technology or Service will be deemed a material breach of this Agreement. WorkXpress, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, WorkXpress may terminate a free trial or reduce any balance of free credits at any time in its sole discretion. You agree and acknowledge that WorkXpress has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. WorkXpress represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online WorkXpress help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that Your billing information is correct.
14. Mutual Indemnification
You shall indemnify and hold WorkXpress, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of Your representations and warranties; or (iii) a claim arising from the breach by You or Your Users of this Agreement, provided in any such case that WorkXpress (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release WorkXpress of all liability and such settlement does not affect WorkXpress's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim. WorkXpress shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by WorkXpress of its representations or warranties; or (iii) a claim arising from breach of this Agreement by WorkXpress; provided that you (a) promptly give written notice of the claim to WorkXpress; (b) give WorkXpress sole control of the defense and settlement of the claim (provided that WorkXpress may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to WorkXpress all available information and assistance; and (d) have not compromised or settled such claim. WorkXpress shall have no indemnification obligation, and you shall indemnify WorkXpress pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
15. Disclaimer of Warranties
WORKXPRESS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. WORKXPRESS AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY WORKXPRESS AND ITS LICENSORS.
16. Internet Delays
WORKXPRESS'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WORKXPRESS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
19. Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000 WorkXpress and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Switzerland and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Swiss or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
20. Notice
WorkXpress may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in WorkXpress's account information, or by written communication sent by first class mail or pre-paid post to your address on record in WorkXpress's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to WorkXpress (such notice shall be deemed given when received by WorkXpress) at any time by any of the following: letter sent by confirmed facsimile to WorkXpress at the following fax numbers (whichever is appropriate): (717) 707-0101 (for U.S. Customers); letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to WorkXpress at the following addresses (whichever is appropriate): WorkXpress, 304 Market Street, Harrisburg PA 17101 addressed to the attention of: Chief Financial Officer.
21. Modification to Terms
WorkXpress reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time provided that such change will apply equally to all subscribers, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
22. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of WorkXpress but may be assigned without your consent by WorkXpress to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of WorkXpress directly or indirectly owning or controlling 50% or more of you shall entitle WorkXpress to terminate this Agreement for cause immediately upon written notice.
23. General
With respect to all Customers, this Agreement and the rights of the parties to it shall be governed by Pennsylvania law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Dauphin County, PA. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and WorkXpress as a result of this agreement or use of the Service. The failure of WorkXpress to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by WorkXpress in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and WorkXpress and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
24. Additional License Considerations for VARs, ISV’s, Agents, Hosts, Affiliates (“Service Delivery Partners”, “Partners”)
By creating a “Business Model” in your WorkXpress Account, you are initiating and agreeing to additional terms and conditions necessary to engage in certain commercial activities relating to the delivery of products and services using the WorkXpress Service.
This section 24 contains those additional terms and conditions that also apply to an individual or entity’s participation in the WorkXpress Service Delivery Partner Program. By creating a Business Model through the Service, you AGREE TO BE BOUND BY ALL THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT.
24a. Business Model Types
SERVICE PROVIDER AND SUPPORT PROVIDER: WorkXpress encourages Service Delivery Partners to provide application customization and support for WorkXpress based applications (Such partners are hereinafter referred to as a “VAR” or “value-added reseller”). Accounts with an approved VAR Business Model are required to assume responsibility for the first and second tier of support (user and application support) for the Customers under that model.
HOST: WorkXpress allows the delivery of Hosting Services wherein the cloud server is managed by a Service Delivery Partner (Such partners are hereinafter referred to as a “Host”). Accounts with an approved Host Business Model may use the Service to purchase a Public or Private Cloud Server and to offer it to customers for hosting their WorkXpress Applications. Hosts are required to monitor and maintain the cloud server on behalf of their customers.
PUBLISHER: WorkXpress allows the resale of Applications by approved entities (Such partners are hereinafter referred to as “ISV’s” or Independent Software Vendors). Accounts with an approved ISV Business Model may use the Service to designate an Application, to make it available publicly in the WorkXpress Store, or to offer it through other channels.
SELLER: WorkXpress allows the receipt of a commission for identifying and maintaining a critical customer relationship (Such partners are hereinafter referred to as an “Agent”). Accounts with an approved Agent Business Model may bring customers to WorkXpress based Applications and/or to other Service Delivery Partners. Agents are required to maintain a sales relationship with their customers under the Agent model.
AFFILIATE: WorkXpress allows the generation of leads via a Service Delivery Partners website (Such partners are hereinafter referred to as an “Affiliate”). Accounts with an approved Affiliate Business Model may use the Service to generate a link which then may be placed on their website. Any entity clicking through that link in so much as able and for a limited period of time will be tracked, such that if they create a WorkXpress Account, they will be considered a Customer of that Affiliate model. This customer relationship will continue so long as the Affiliate is actively generating commercial Affiliate relationships.
24b. Protections Afforded to Partners
Your WorkXpress Account is secure. Your account can not be cancelled by anyone or for any reason other than your violations of this agreement as described herein or at the end of the agreement period.
Your Intellectual Property is secure. All intellectual property including application programming constitutes data submitted to Service and therefore is considered Customer Data and afforded protections as described herein.
Your privacy and uptime are secure. The WorkXpress Service provides You the tools to use appropriately certified infrastructure vendors, encryption and to perform data backups and disaster recovery according to your specific needs.
Your Data is Portable and belongs to You. Your application software code and any application’s user data is available to you at any time through use of the WorkXpress Service.
Your customer relationships are secure. The WorkXpress Service includes private labeling tools. In addition, as per this agreement, WorkXpress may not solicit your customers except in the necessary circumstance where your Account is suspended.
Service Level Agreements or other Warranties. The WorkXpress Service provides You with the tools necessary to choose the appropriate infrastructure providers according to your service level agreement needs.
24c. Service Delivery Program Definitions
“Service Delivery Partner” is the Account for which there exists one or more approved Business Models.
“Business Model” hereinafter refers to the unique Business Model that each Service Delivery Partner creates to successfully register and be accepted in our Service Delivery Partner Program.
“Customer” (also “end-Customer”) refers to the WorkXpress Account or Application within an Account that is associated with a Business Model. A Customer of an Affiliate Business Model is the Account associated with that Affiliate Model. A Customer of a Host, Agent, VAR or ISV model is the Application associated with that Model. The term
“Customer” or “Your Customer” in no way implies any sort of exclusivity to You or Your Business Model.
“Service Delivery Partner Community” is the population of Service Delivery Partners with approved Business Models on the WorkXpress Service.
“Banner Ad(s)” means an image embedded as an advertisement on a web page and which hyperlinks persons from that web page to the Service.
“Fraud Traffic” means Deposits, Revenue or traffic related to the Service or use of the Service and generated by illegal means or in bad faith to defraud WorkXpress, regardless of whether or not it actually causes WorkXpress harm. Fraud Traffic includes but is not limited to Spam, false advertising, use of stolen credit cards, collusion, manipulation of the Service, offers to share compensation directly or indirectly with Customers or other Service Delivery Partners outside of those methods provided for good faith use by the Service, and any other unauthorized use of any third party accounts, copyrights or trademarks.
“Press Release” means any document or publication which is released or circulated to the public or news media and purports to communicate information regarding the Service, our Service Delivery Partner Program, or other aspects of the WorkXpress Service.
“Spam” or “Unsolicited Promotions” means emails or any other messages that are related to the Service in any way and are circulated by you, directly or indirectly, including messages that are posted on newsgroups, chat boards, instant messaging systems, and other types of online forums or sent to mobile phones and which: 1) are directed at people who have not consented to receiving promotional messages from You; 2) contain false or misleading statements; 3) do not truthfully identify the source or the originating IP Address; 4) purport to be, but are not, generated by WorkXpress; 5) do not provide for laws or regulations regarding unsolicited electronic communications.
“Sub-Affiliate” or “Sub-Partner” means a WorkXpress Account that contains a Business Model and that is a Customer of an Affiliate, or any Account associated with a Business Model (A “Sub-Account”).
“Business Model ID” is the numeric code your Business Model is assigned when you use the Service to create a Business Model.
“Referral codes” are unique offline alphanumeric codes associated with one or multiple Business Models that Users may enter when opening a WorkXpress Account or during their use of the Service. When properly entered, the Service automatically logs the Referral Codes and relates the associated Business Models to the Customer.
“Track Text Link(s)” means text that hyperlinks persons from a web page to the Service.
“Tracking Code” means a unique hyperlink (URL) to the WorkXpress Service through which an Affiliate or other Service Delivery Partner refers potential Customers from a web page. When the Customer opens his/her Account, the system automatically logs the Tracking Code and records the associated Affiliate or other Service Delivery Partner(s). A Tracking Code may embed the identification of multiple Service Delivery Partners, and bind each of them to that Customer in their respective capacities upon signup.
“Partner Distributions” (“Distributions”) are any revenues, expenses or adjustments associated with the Service Delivery Partner’s Business Models and attributed to the corresponding WorkXpress Account by WorkXpress or any withdrawals from the WorkXpress Account by the Service Delivery Partner.
“Partner Account Balance” is the aggregate of positive and negative Partner Distributions and Application Fees and Cloud Server Fees and 3rd Party Services Fees and any other adjustments that have accumulated for the Service Delivery Partner’s WorkXpress Account.
24d. Additional Service Delivery Terms and Conditions
Service Delivery Partner Agreement. As a Service Delivery Partner, you acknowledge that additional terms and conditions may be presented on or through your Business Model, such as Business Model Fees, Revenue Shares, WorkXpress Incentives and Partners Incentives, and that those terms and conditions are incorporated into this Agreement. WorkXpress may require the signature of a separate Order Form called a “Service Delivery Partner Agreement” connected to your Business Model, and that you will also be bound by the terms and conditions of that agreement. You also acknowledge that you are responsible for the adherence to this Agreement by each and every User of any application that is managed under Your Account or any Sub-Accounts, regardless of the nature of the relationship between You and that User.
Identity and Disclosure. In addition to the requirement to provide accurate information described in Section 9 and elsewhere in this agreement, So long as you are a Service Delivery Partner, you will have a continuing obligation to disclose your Service Delivery relationships with competitors (or in the case of Affiliates, with other websites) upon our request.
Intellectual Property. You further acknowledge that WorkXpress is in no way responsible for the defense of any intellectual property rights that You may claim for any applications built using the WorkXpress Services or published to the Applications Library, or used by any Users of WorkXpress Services. You further acknowledge that you will be solely responsible and liable for any intellectual property claims made against you, or made against the Service or the Service Delivery Partner Community as a result of Data that you submitted to the Service (Your Customer Data).
Account Information. WorkXpress is under no obligation to disclose data relating to any specific Customer Accounts. All such data is the exclusive property of WorkXpress and by entering into this Agreement you acquire no right to such information, except as expressly stated herein.
Business Model Registration, Terms and Acceptance. You must create and submit any Business Model with which you are proposing to engage in a commercial activity under this Agreement (a “Business Model Registration”) from within Your Account. A Business Model Registration may include pricing, revenue share percentages, tiers of usage or pricing, service delivery responsibilities and other such variables as indicated on a specific Business Model (The “Business Model Terms”).WorkXpress reserves the right to reject the proposed Business Model Terms put forth by you on a Business Model Registration. WorkXpress further reserves the right to reject your registration as a Service Delivery Partner, and to render ineffective any Links, Referral Codes, Tracking Codes and other related rights or obligations.
Establishment and Alteration of Specific Pricing and Payment Terms. Once a Business Model Registration is accepted (an “Accepted Business Model”) by WorkXpress the Business Model Terms for that Business Model cannot be changed, except with the express written authorization of WorkXpress. You may however create and submit a new Business Model that is intended to reflect the terms you wish to adopt on a going-forward basis.
Marketing and Servicing Activities and Responsibilities. You will, at your own cost and expense, market to and refer potential Customers to the Service, or service Your Customers of the Service, according to responsibilities of Your Business Model(s). You will be solely responsible for the content and manner of your marketing and servicing activities. However, you agree that all marketing and servicing activities must be professional, proper and lawful under applicable rules or laws.
Unauthorized Marketing Materials and Venues. You represent and warrant that you will not place promotional materials including but not limited to Widgets, Banner Ads or Text.
Links related to us on any website, or use any media or medium, which contains materials that: 1) Infringe any intellectual property rights (including but not limited to trademark rights); 2) promote discrimination based on national origin, race, gender, religion, disability, sexual orientation or age; 3) are libelous, obscene or unlawful; 4) are sexually explicit, pornographic, obscene, hateful or violent; or 5) are otherwise considered inappropriate at our sole discretion.
Unauthorized Activities. You represent and warrant that you will not suggest or imply any way shape or manner that any special discounts or offers made by us are exclusive to you. You will not utilize Prohibited Software or operate sites that offer or promote programs that use what we deem to be Prohibited Software. You will not use Spam, Unsolicited Promotions, Adware, Spyware, or Prohibited Software in any marketing or servicing activities related in any way, shape or manner to the Service or our Service Delivery Partner Program. Widgets, Banner Ads and Text Links may not be placed within Spam, Unsolicited Promotions, unauthorized newsgroups postings, chat rooms or through the use of “bots” or Prohibited Software. In the event that a person injured by your marketing or servicing activities seeks compensation from us, expenses we incur in connection with your conduct, including but not limited to litigation costs and attorneys’ fees, shall be deducted from the Partner Distribution you have earned. You will not earn Partner Distributions on Customers generated or serviced using unlawful or improper means. In the event that you violate this provision, you will forfeit all Partner Distributions that you have earned and we reserve the right to terminate this Agreement.
Approved Marketing Materials. In your efforts to promote or market the WorkXpress Service, you will only use the Widgets, Banner Ads and Text Links and any other promotional materials that have been provided by us and/or pre-approved by us (collectively, the “WorkXpress Marketing Materials” or simply “Marketing Materials”). During the term of this Agreement, we grant you a terminable, non-exclusive, non-transferable right to use the WorkXpress Marketing Materials for the sole purpose of marketing to and referring potential Customers to the WorkXpress Service. Under no circumstance are you allowed to use the Marketing Materials and any other promotional materials provided by us in a manner that may potentially confuse or mislead a Customer or potential Customer. Under no circumstances may you issue or circulate a Press Release without our written consent as set forth herein. In the event that you violate this provision, you will forfeit all Partner Distributions that you have earned and we reserve the right to terminate this Agreement.
Cost of WorkXpress Marketing Materials. Generally, we will provide you, without charge, the guidelines, graphical artwork and permitted text to use in promotional materials to promote the WorkXpress Service. However, CDs and other customized promotional materials provided to you will be at cost, and deducted from Partner Distributions payable to you.
No Modification of Marketing Materials. You agree to use the entire code provided to you in connection with the Marketing Materials. You will not modify or alter the code for Widgets, Banner Ads, or Text Links, or otherwise modify any other WorkXpress Marketing Materials without our prior written consent.
Non-Assignment of Trackers. Trackers and Tracking codes are for your sole use and are not to be assigned to others without our prior written consent.
Disclaimers. We reserve the right to demand that you post a disclaimer adjacent to any WorkXpress Marketing Materials which you display anywhere. We further reserve the right to determine the language of a reasonable disclaimer in our sole discretion.
Commercial Use Only. This Marketing opportunity is for commercial use only, and you may not sign up or make Payments to any Account, directly or indirectly, through your Trackers(s) for your own personal use, to fraudulently increase the Partner Distributions payable to You or to otherwise defraud WorkXpress.
Sub-earning Sharing. You shall not share your Partner Distributions or otherwise compensate any Service Delivery Partner so that it unfairly and in bad faith increases the rate at which you or another Service Delivery Partner is paid.
Good Faith Marketing. You will not knowingly benefit from any known, unknown, or suspected or unsuspected Fraud Traffic. We reserve the right to withhold or back out from Partner Distributions generated by Fraud Traffic, regardless of whether you participated in or knew about the Fraud Traffic. In the event that we determine that you have knowingly participated in, or knowingly benefited from, Fraud Traffic we may terminate this Agreement immediately and you will forfeit all Partner Distributions that you have earned.
Press Releases. You may not issue or circulate any Press Release or any document with the characteristics of a Press Release with respect to the WorkXpress Service, this Agreement, or the Business Model without our prior written consent. In the event that you violate this provision, you will forfeit all Partner Distributions that you have earned, and we reserve the right to terminate this Agreement.
Written Material. Except for the WorkXpress Marketing Materials, you may not create, publish, distribute or allow any written material that references WorkXpress in any way without our prior written consent. Notwithstanding, you may create written communication as a course of a normal and good faith sales process, or normal promotional efforts, for example tweeting, blogging and testimonials.
No Competitive Marketing. You shall not market to Customers or potential Customers on any web page on which we promote the Service; or in any other manner which results in your competing with WorkXpress in relation to the promotion of the Service. In the event that you violate this provision, you will forfeit all Partner Distributions that you have earned and we reserve the right to terminate this Agreement.
Domain Ownership. Without our express written consent, you may not own or purchase any domain that includes the word WorkXpress.
Search Engines. You may not bid on any keywords or keyword phrases which include the word WorkXpress without our express written permission.
Site redirects. You may not set up any site redirects from any web page or network of websites so that the page goes directly to the Service.
Page Optimization. You may not optimize any page of a website(s) for keyword or keyword phrases that include the word WorkXpress. This provision includes but is not limited to meta tags, headers and body content.
Off-Site Links. You may not buy or build off-site text links with anchor text for WorkXpress-branded keyword phrases.
Copyrights and Trademarks. You may not register, claim or purport to claim a copyright or trademark in any phrase or mark which references WorkXpress.
Social Networking Sites. On any social networking site, you may not hold yourself out to be or to represent WorkXpress, our agents, employees or representatives. Additionally, you may not create, establish or otherwise maintain any page on Facebook, MySpace, Google+, Twitter, LinkedIn or any other social networking site, blog domain, or use a profile name or display name which does or could mislead others to believe that you do or may represent us, our agents, employees or representatives. Notwithstanding, you may create any such page that shows support for WorkXpress, as in the example “I Love WorkXpress”.
Registration by Affiliates of Sub-Affiliates and other Business Models (herein collectively referred to as a “Sub-Partner”). As an Affiliate You may refer other Customer Accounts to WorkXpress who in turn apply to become a Service Delivery Partner. We will pay you an Affiliate Incentive on the WorkXpress Revenue generated therein from each such Account that registers a Business Model provided that they comply with all applicable terms of this Agreement.
Limitations: You shall not; 1) Register yourself or any person controlled by you as your own Sub- Partner; 2) Use or permit fictitious or alias names for the registration of Sub- Partner; 3) Offer any type of enticement of money or anything of monetary value to potential Sub- Partner unless such enticements are approved in writing by WorkXpress; 4) Attempt to introduce any addition or variation to our terms in relation to any potential Sub- Partner; 5) receive sums which are owed to your Sub- Partner (s); such sums shall be paid directly to that Sub- Partner. Further, the payment and contractual relationship in regard to the Service Delivery Partner Community shall remain between the Service Delivery Partner and WorkXpress.
Holdover for Fraud Traffic. In the event of any activity deemed suspicious by us, in your Account or in multiple Accounts, then we may delay payment of the Partner Distributions to you for up to one hundred and eighty (180) days to verify the relevant transactions. In the event that we determine the activity to constitute Fraud Traffic, we shall be entitled to terminate this Agreement and to recalculate or withhold your Partner Distributions accordingly and in our sole discretion.
Customer Tracking. You acknowledge that there are several ways to associate a Customer with your Business Model, including; 1) use by You or another Service Delivery Partner of your Business Model ID, a Referral Code or Tracking code; 2) use by Your or another Service Delivery Partner of interfaces provided by the Service; 3) use by the Customer of a Business Model ID, Referral Code or Tracking Code; and 4) use by the Customer of interfaces provided by the Service. You agree that in order for You to receive Partner Distributions in relation to such potential Customers, one of these methods must be followed accurately. You further agree that in no event are we liable for You, a Service Delivery Partner, or the Customers failure to properly use the provided interfaces, or to properly use the right Business Model ID, Referral Codes or Trackers, or for system malfunctions that cause Business Model ID’s, Trackers, Referral Codes or hyperlinks to be deleted, corrupted or unusable.
Customer Verification. Partner Distributions in relation to new Customers will be dispatched only following our verification and investigations concerning all new Customers.
Customer Exclusivity. Use of the Service in no way implies or imparts exclusivity to a particular Customer. WorkXpress does not give or warrant exclusivity of any customer relationship. You acknowledge that WorkXpress provides tools by which you may create a Business Model and establish and maintain a commercial relationship with a Customer, and that any exclusivity with or to that Customer is between you and that Customer. Notwithstanding the terms of this Agreement, WorkXpress does not disclose Your Customer’s information without your express written permission.
Termination By You. Unless otherwise specified in an Order Form, You may terminate your Service Delivery Partner Business Model, with or without cause, immediately from within Your Account by deleting your Business Model. Affiliates may cease marketing the Service at any time.
Termination By Us. We may terminate this Agreement immediately, without notice, upon the occurrence of any of the following events: 1) You materially breach this Agreement; 2) the total cumulative balance of Revenue Payments due you is less than USD$50 for (3) consecutive months; 3) We determine, in our reasonable discretion, that you issued a Press Release in violation of this Agreement; 4) We determine, in our reasonable discretion, that you knowingly participated in and/or benefited from Fraud Traffic as set forth in this Agreement; 5) We determine that you have used Spam, Adware, or Spyware or have engaged in an unauthorized marketing technique as set forth in this Agreement. 6) Any of your Users have acted in a way so as to breach the terms of service as set forth in this Agreement.
Effect of Termination of a Business Model. The following will apply upon the effective date of termination; 1) You will cease all promotional activity related to us and all rights and licenses given to you under this Agreement will terminate immediately, except as expressly stated herein; 2) You shall render permanently inoperative any URLs which were used or maintained by You where such URLs contain the word WorkXpress; 3) You will return all confidential information related to us and cease use of any of our trade names, trademarks, service marks, logos, Banner Ads, Text Links, and other materials related to the Service or designations of WorkXpress; 4) We may leave open, redirect or deactivate any Trackers in our sole discretion without any obligation to pay you on Customers that result from those Trackers; 5) In the event that your Account is closed for any reason, we reserve the right to extend the closure to all of your activity related to the service, including but not limited to withholding your Partner Distributions without prior notice. If any such closure occurs, we reserve the right to dispose of any remaining funds in your Account at our sole discretion. If we suspect Fraud Traffic, we may withhold payment of Partner Distributions for up to one hundred eighty (180) days, from the original due date, to ensure that the payment is correct and that any fraud has been reversed out; 6) In the event that we determine, in our reasonable discretion, that you knowingly participated in Fraud Traffic, as determined herein, you will forfeit all Partner Distributions that you have earned, and we reserve the right to terminate this Agreement.
Effect of Termination on a Customer. Service Delivery Partners acknowledge that suspension of their account may interrupt the Users of Production applications (“End-Users”, “Customers”). As such Service Delivery Partners in a state of suspension expressly authorize WorkXpress to interact with the End-Users or other Service Delivery Partners for the purpose of disassociating the Service Delivery Partner from the Customer; this may include, but is not limited to, removing the Service Delivery Partner’s Business Model from the Account or Application and setting the terms of that Customer at the sole discretion of WorkXpress. Customer will not have the right to continue to use any Intellectual Property of Service Delivery Partner except with express written consent of Service Delivery Partner.
No Warranties. YOU HEREBY ACKNOWLEDGE THAT WE PROVIDE YOU TOOLS BY WHICH YOU MAY ESTABLISH YOUR OWN DESIRED LEVELS OF SERVICE FOR MOST ASPECTS OF YOUR CUSTOMER SERVICE DELIVERY. WE DO NOT WARRANT THAT OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES) WILL BE ERROR-FREE OR UNINTERRUPTED. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR SUITABILITY OF OUR SYSTEM, NETWORK, SOFTWARE OR HARDWARE (OR THAT PROVIDED TO US BY THIRD PARTIES). WE (OR OUR PROVIDERS OR UNDERLYING VENDORS) ARE NOT REQUIRED TO MAINTAIN REDUNDANT SYSTEM(S), NETWORK(S), AND SOFTWARE OR HARDWARE.
Billing and Collection Limitations. We may in our sole discretion, with or without notice, use any available means to block or restrict certain Customers, Cloud Servers, Applications or Business Models so as to comply with applicable laws or regulations, or to reduce the number of fraudulent, unprofitable transactions or for any reasons whatsoever. We do not guarantee or warrant the success of any fraud prevention efforts.
Release. The parties hereto will be released from all obligations or liabilities to each other occurring or arising after the date of termination of a particular Business Model or this Agreement, except with respect to those obligations that by their nature are designed to survive termination, as set forth in this Agreement. Termination will not relieve you from any liability arising from any breach of this Agreement which occurred prior to termination.
Liability Limitations. Our obligations under this Agreement do not constitute personal obligations of the directors, officers, employees or shareholders of WorkXpress. Any liability arising under this Agreement will be satisfied solely from the revenues generated hereunder. Our liability is limited to direct damages, and in no event will we be liable for any indirect, special, incidental, consequential or punitive loss, injury or damage of any kind (regardless of whether we have been advised of the possibility of such loss).
Indemnification. You will defend, indemnify and hold us and our officers, directors, employees and representatives harmless from and against any and all liabilities, losses, damages and costs, including reasonable attorney’s fees, arising from or connected to your breach of this Agreement or the performance of your duties under this Agreement.
Independent Investigation. You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of marketing the Service and performing services based on the Service and are not relying on any representation, guarantee or statement other than as set forth in this agreement.
Relationship of Parties. There is no relationship of exclusivity, partnership, joint venture, employment, agency or franchise between you or us under this Agreement. Neither party has the authority to bind the other nor to incur any obligation on the other’s behalf, except as expressly provided herein. Nothing in the Agreement will be construed to provide any rights, remedies or benefits to any person or entity not a party to this Agreement.
Non-Exclusive. You understand that we may at any time (directly or indirectly), enter into commercial terms with other Service Delivery Partners on the same or different terms as those provided to you herein and that such Service Delivery Partners may be similar and even competitive to you. You understand that we may re-direct traffic and users from the Service to any other web page that we deem appropriate in our sole discretion, without any additional compensation to you.
Confidentiality and Non-Disclosure. As a Service Delivery Partner, you will receive confidential information from us regarding the Service, our marketing or product plans and concepts, structure and payments. This information is confidential to us and constitutes our proprietary trade secrets. Therefore, you will not disclose this information to third parties, including but not limited to any Customer and/or Service Delivery Partner without our express written consent. Your obligations regarding confidential information and trade secrets shall survive the termination of this Agreement.
Conflict of Interest. While you are our Service Delivery Partner, you may not maintain any relationship with a provider of a competing service which conflicts with your obligations to us under this Agreement. In the event that you violate this provision, you will forfeit all Partner Distributions that you have earned and we reserve the right to terminate this Agreement.
Assignment. This Agreement and the rights and obligations hereunder may not be assigned by you without our express written consent.
24e. Service Delivery Revenues and Payments
Reporting. WorkXpress will track and maintain Customer activity for purposes of calculating your Partner Distributions. The form, content and frequency of any reports may vary from time to time at our sole discretion. At a minimum, reporting is generally made available directly through your WorkXpress Account.
Collection and Distribution of Revenues. The WorkXpress Service offers tools to collect Fees from Customers and to make Partner Distributions on a nightly basis for most Customer Fees. All other distributions will occur upon demand and within 60 days unless otherwise detailed herein. It is the Partners responsibility to withdraw available Revenues from their WorkXpress Account.
Partner Collection of Revenues from Customer. In the event an agreement is made wherein Partner will collect Revenues directly from customer, WorkXpress will continue to calculate payments due as if WorkXpress was charging customer directly. It will be up to the Partner to insure that each Account that Partner is responsible for has adequate funding to cover costs, otherwise, those Accounts could run out of funds, and services could be terminated as per this agreement. WorkXpress may choose to issue to Partner a “Line of Credit” that will roughly account for a time delay from the time costs are incurred by the customer to the time Partner is able to receive payment from customer, and deposit payment into the appropriate WorkXpress Balance. Regardless, the Partner will be responsible for all costs incurred by Customers they are responsible for.
Calculation of Distributions. WorkXpress will perform all calculations based on our understanding of the terms in this Agreement and described on the Business Model in our sole discretion. You acknowledge that WorkXpress is the final arbiter of the distribution calculations which it will make reasonably and to the best of its ability.
Partial Payments. You hereby acknowledge that WorkXpress will not distribute partial payments made against a customer’s Statement or disputed payments or possible Fraud Payments until such time as the dispute is resolved or the Statement is paid in full.
Determination of a calculation wherein the scale used for the calculation is tiered. WorkXpress will perform all calculations involving a variable or tiered percentage or amount based on the previous completed month’s values. For example, when calculating a distribution percentage that varies based on WorkXpress Revenue, WorkXpress will look to the last completed month and use that month’s WorkXpress Revenue to determine the distribution percentage for this current month. To reiterate, all variable percentages or amounts for a current month will be calculated based on the most recent completed month.
Application of Funds. You hereby authorize WorkXpress to apply these funds directly to any delinquency or Negative Balance on Your Account prior to funds distribution. In the event that the Partner Account Balance is a negative amount for three (3) consecutive calendar months, we shall be entitled to terminate this Agreement. In the event of a credit to a customer for which you may already have received a distribution, you authorize WorkXpress to apply a reverse of that distribution to Your Account.
Distribution by an Approved Method. You acknowledge that funds will only be distributed via an approved method, and that you may need to have an approved payment account on file, within your WorkXpress Account, to receive this payment.
Disputes. Deposit of payment, acceptance of payment transfer or acceptance of other payment by you will be deemed full and final settlement of Partner Distributions due for the period indicated. Hence, if you disagree with the reports or amount payable, do NOT accept payment for such amount and immediately send us written notice of your dispute. Dispute notices must be in writing and be received within thirty (30) days of the end of each period for which payment is made, or your right to dispute such report or payment will be deemed waived and you shall have no claims in such regard.
24f. Calculations
“Software Fees” are the sum total of the Fees set by the Agent, VAR, ISV(s) and WorkXpress for any Production Application. In the event of multiple Business Models each contributing to the Software Fees, the sum total of each of those Fees will be presented to the Customer in aggregate as the single Software Fee. The individual contribution by a single Business Model to an aggregate Software Fee will be referred to as the “Business Model Fee”.
“Hosting Fees” are the sum total of the Fees set by the Host for any Build, Testing or Production Application.
“Application Fees” are those Fees a Customer is billed for a single Application at the end of a single period. If that Application is in the Production role, its Fees may be comprised of Software Fees and Hosting Fees. If that Application is in a Build or Test role, its Fees may be comprised of Hosting Fees.
“Cloud Server Fees” are those Fees an Account is billed by WorkXpress for each Dedicated Public or Private Cloud Server ordered by that Account.
“3rd Party Services Fees” or “Services Fees” are those Fee’s an Account is billed for use of a 3rd party service by applications within that Account.
“Statement” is the document sent to an Account at the end of each period that describes all payments and receipts for that Account for that period.
“Customer Transaction Costs” are the costs assessed by a credit card company to transfer money to WorkXpress. Whenever Application Fees are distributed to a Service Delivery Partner the distribution amount may be reduced by a “Percentage Customer Transaction Cost”.
“Revenue Share” is the amount deducted by WorkXpress from any Business Models portion or contribution to a specific Application Fee (the “Business Model Fee”). For any Business Model, the portion of the Application Fee assessed by that Business Model is compared against the % Revenue Share as described on the Business Model and as calculated using the previous months total Partner Monthly Distribution to determine the amount of Revenue Share taken by WorkXpress. If no Business Model from a Service Delivery Partner exists for a given Fee, WorkXpress Revenue Share is 100%.
“Partner Incentives” are those amounts paid by Partners (the “Paying Partner”) to other Partners (the “Receiving Partner”) for a specific Application, as determined by them on their Business Models. For each Receiving Partner, this amount is calculated by multiplying the Business Model Fee of the Paying Partner and the Partner Incentive Percentage (which is set on the Business Model of the Paying Partner for that Receiving Partner).
“Partner Revenue” then is the net proceeds to a specific Business Model for a specific Application associated with that Business Model, considering the Business Model Fee, Customer Transaction Costs and any Partner Incentives.
“Affiliate Incentive” is the additional amount paid to an Affiliate Business Model by WorkXpress by comparing WorkXpress’ total Revenue from the Applications and Business Models in the associated Accounts during the previous completed period against the % Affiliate Incentive as described on that Business Model. Note that this means that Affiliate Incentives are delayed by one period compared to normal Partner Revenue, so as to allow full accounting of Sub-Partner revenue.
“Partner Transaction Costs” are any transaction costs incurred by a Service Delivery Partner in retrieving funds from their WorkXpress Account.
“Partner Monthly Distribution” is the net amount received by a Partner Account during the course of a specified month, typically for all activity under that Account and typically within 30 days of the end of the previous month.
“WorkXpress Revenue” for a specific Account that includes at least one Business Model then is the aggregate of Revenue Shares less Affiliate Incentives for any given billing period.
Therefore, the method of Calculation of Partner Monthly Distributions can be notated as follows:
For each Customer Application at the end of a specific period, the following calculations are made:
- Customer pays Application Fees (equal to Software Fees plus Hosting Fees).
- Each Partner receives their Business Model Fees less a prorated share of the Customer Transaction Costs
- Partners pay WorkXpress a Revenue Share (equal to Business Model Fee multiplied by % Revenue Share)
- Partners pay other Partners any Partner Incentives (equal to Business Model Fee multiplied by % Partner Incentive)
- For each Partner, the balance is the Partner Revenue
For a specific Affiliate Business Model and for every Customer Account associated with it at the end of a previous specific period, the following calculations are made:
- WorkXpress pays Affiliate Incentive (equal to Sum of WorkXpress Revenue for the previous billing period multiplied by % Affiliate Incentive)
25. Definitions
As used in this Agreement and in any Order Forms including Service Delivery Partner Agreements now or hereafter associated herewith: "Agreement" means these online terms of use, any Order Forms, whether written or submitted online via the Account Portal, and any materials available on the WorkXpress website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by WorkXpress from time to time in its sole discretion; "Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; "Customer Data" means any data, information or material provided or submitted by You to the Service, other than Account and registration information, in the course of using the Service; "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed, the date indicated as “Effective Date” on an Order Form or the date you begin using the Service; "Initial Term" means the initial period during which you are obligated to pay for the Service; "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; “Account Owner” means those Users designated by you who are authorized to have full access to your WorkXpress Account including all ability to manage applications, clouds, Business Models and to issue logins and passwords to other WorkXpress Account Users, including those actions resulting in the purchase of goods and or services through WorkXpress; "License Term(s)" (also “Initial Term” and “Renewal Term”) means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s); "Order Form(s)" means the paper or online form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); "WorkXpress Account " (also “Account” and “Portal”) means WorkXpress's online application that allows the Account Users to, among other things, manage the application lifecycle, perform systems administration tasks, add new software licenses, add new hosting services, create Dedicated Cloud Servers and create Business Models, all of which may involve the purchase of additional services and licenses and the addition of additional Users to the Service; "WorkXpress" means collectively Express Dynamics, LLC dba WorkXpress, a Pennsylvania corporation, having its principal place of business at 304 Market Street, Harrisburg, PA 17101; "WorkXpress Technology" means all of WorkXpress's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by WorkXpress in providing the Service; "Service(s)" means WorkXpress's web-delivered applications platform and related applications identified during the ordering process or instantiated or installed during the course of use that is developed, operated, and maintained by WorkXpress and is accessible via http://www.WorkXpress.com or another designated web site or IP address, and includes all ancillary online or offline products and services provided to you by WorkXpress including Private Cloud Servers, to which you are being granted access under this Agreement, including the WorkXpress Technology and the Content; "User(s)" means your employees, representatives, consultants, contractors customers, vendors or agents who are authorized to use the Service and have been supplied user identifications and passwords to your WorkXpress Account or who are using Applications managed from within your WorkXpress Account by you (or by WorkXpress at your request); “Account Users” means all Users authorized by the Account Owner or other Account Users to use the WorkXpress Account and are therefore given authority to initiate various activities within the portal necessary to the management of systems and applications, including creating applications, dedicated cloud servers, ordering additional software licenses or hosting, creating Business Models, and setting up additional Users; “Production Environment” means a WorkXpress application deployed into a role labeled as “Production” within the WorkXpress Account and/or an application used in direct support of a commercial function; “Development Environment” (or “Project”) means a WorkXpress application deployed into a role labeled as “Development” within the WorkXpress Account and/or an application being built using the WorkXpress tools; “Testing Environment” means a WorkXpress application deployed into a role labeled as “Testing” within the WorkXpress Account and/or an application used solely to test features or functions; “Cloud Server” for purposes of this agreement shall mean any server created through and managed by the WorkXpress Service including both a “Public Cloud Server” which is provided by a certified vendor through the WorkXpress service and a “Private Cloud Server” which is hosted on a server not operated by WorkXpress or its Vendors, including Servers located in a User-specified location or hosted with some cloud infrastructure provider.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@WorkXpress.com.
