Terms of Service
Effective Date: April 10, 2019
Thank you so much for participating in our private beta! Either you have insomnia and are looking for some legal agreements to read before bed, or you really want to make sure things are buttoned up. Either way we’ll try to spell things out as clearly as possible and if you want to dive into the details, the legal doc is below.
Mutual non-disclosure and data security. If you’re involved in the private beta, you’re probably someone we trust (and hopefully vice versa) but for the sake of clarity, this agreement confirms that your data is safe with us and we count on the same discretion from you. Trust is absolutely fundamental to our offering, so we will never sell or share your data with unauthorized third parties and we take a healthcare industry (that’s some of our roots) level grade of caution when it comes to personal data. Likewise, we’re still early in our development and don’t want to share too much with the world quite yet, so we count on your discretion.
It’s a beta, so we’re setting expectations accordingly. As one of our early users, you get the opportunity to help shape the product to your specific needs. However, we’re still working on things and the app won’t be as polished as other more mature products you might use. We’ll use every commercially viable method to fix things as soon as possible, but there might be the occasional hiccup.
It’s a beta, not a life sentence. The goal is to keep things pretty streamlined and light weight. There are no big commitments or obligations. We just want to get as much feedback from you as possible so we can improve the product to better serve your needs.
BETA TEST AGREEMENT
This BETA TEST AGREEMENT (this “Agreement”) is made and entered into by and between WorkPatterns, Inc., a Delaware corporation (”Licensor”, “WorkPatterns” or “we”, “us”, or “our”), and you (“Licensee” or “you” or “your”). BY ACCEPTING THE AGREEMENT IN ACCORDANCE WITH THE INSTRUCTIONS ON OUR WEBSITE, YOU REPRESENT TO US THAT YOU HAVE THE AUTHORITY TO ENTER THIS AGREEMENT AND THAT YOU HAVE READ AND FULLY UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT. You don't have authority to enter this Agreement if you are not old enough to enter contracts.
1. App Definition. The term “App” shall mean WorkPatterns’ proprietary data driven communication and collaboration application.
2. Beta Testing. You acknowledge and agree that the App is a beta test version that may contain bugs, defects and errors and that the App is not expected to function fully. You further acknowledge and agree that the App is being supplied to you without charge in exchange for your evaluation of the App.
3. Limited License.
(a) Grant of License. WorkPatterns grants you a royalty-free, nonexclusive, nontransferable, revocable license to access and use the hosted App (without any right to sublicense), subject to all terms and conditions set forth in this Agreement. Any continuation of the license after the end of such term will be on terms and conditions to be agreed by WorkPatterns and you, at their respective options and discretion.
(b) Term of License. The license granted by this Agreement shall be for an initial term of 30 days and shall automatically renew for additional 30 day terms, unless earlier terminated by either party.
(c) Termination. You may terminate the license granted by this Agreement by providing written notice to us stating the effective date of the termination. We may terminate the license granted by this Agreement at any time by providing five (5) business days’ prior written notice to you stating the effective date of the termination.
(d) Survival of Terms. The provisions of Sections 3(d), 5, 7, 8, 9, 10, 11, 12, 13 and 14 will survive any termination or expiration of this Agreement.
(a) Test Plan. You agree that your evaluation of the App shall be conducted in accordance with such testing plans and procedures as we may from time to time provide to you, via e-mail or otherwise. Such test plans may include, without limitation, our terms of support, and reporting forms and schedules for reporting use.
(c) Role of Licensee. In accordance with the Test Plan, you agree to use and evaluate the App. Subject to the other provisions of this Agreement, you agree to provide us with periodic data and reports that include but are not limited to (i) a description of the results of your use and evaluation of the App, including any defects found in the App and any information necessary for us to evaluate such defects, and (ii) any recommendations by you for changes or modifications to the App (collectively, “Feedback”).
5. Right of Licensor to Use Licensee’s Evaluation and Data. You agree that we shall have the right to use, in any manner and for any purpose, any information gained as a result of your use and evaluation of the App. Such information shall include but not be limited to any Feedback, any Customer Data (defined below), and any changes, modifications, corrections and improvements to the App made by you or us or at your suggestion and feedback. We shall have the right to use, at our sole discretion, all such information, including (but not limited to) use by incorporation of such information into computer programs and documentation for assignment, license, or other transfer to third parties, without any duty to account to you. We shall also have the right to use your name and logo in connection with any feedback provided by you to us. In the case of Customer Data, we agree to use such information only in aggregate or masked form that cannot (except when we use such information to deliver personalized recommendations to you) be linked or associated back to you. “Customer Data” means data and information submitted by you to us directly or through the Third Party Services.
6. No Obligation to Support App; App Availability. Except as expressly set forth in this Agreement, we shall have no obligation to correct any bugs, defects or errors in the App or to otherwise support or maintain the App. We will use commercially reasonable efforts to make the App continuously available, excluding scheduled maintenance and unscheduled emergency maintenance; provided, however, that we cannot guarantee that the App will operate in an uninterrupted or error-free manner.
7. Ownership of App. You agree that we own all rights, title and interest, including but not limited to copyright, patent, trade secret, and all other intellectual property rights, in the App and any changes, modifications or corrections to the App made by us. If you are ever held or deemed to be the owner of any copyright or other intellectual property rights in the App or any changes, modifications or corrections to the App made by us, then you hereby irrevocably assign to us all such rights, title and interest and agree to execute all documents necessary to implement and confirm the letter and intent of this Section.
(a) Acknowledgment of Trade Secrets. You acknowledge that the App contains valuable trade secrets and confidential information owned by us, including but not limited to the development status of the App, the functionality of the App, the appearance, content and flow of the App’s user interface, and the content of the App’s documentation.
(b) Restrictions. You agree that you and your employees will not, directly or indirectly, (i) sell, lease, assign, sublicense or otherwise transfer, (ii) duplicate, reproduce or copy (except to make one backup copy), (iii) disclose, divulge or otherwise make available to any third party, (iv) use except as authorized by this Agreement, or (v) decompile, disassemble or otherwise analyze for reverse engineering purposes, the App, including all trade secrets and confidential information therein. You shall take all reasonable precautions to prevent inadvertent disclosure of the App, including all trade secrets and confidential information therein.
(c) No Disclosure to Third Parties. You will not permit any third party, nor any employee, representative or agent thereof, that develops, markets or licenses computer programs with functionality similar to the functionality of the App to have access to the App or to any trade secrets and confidential information therein.
(d) Disclosure of Licensee’s Participation. We may disclose and announce that you are as participant in our beta testing program for the App.
9. Warranties and Limitations.
(a) Warranties of By Each Party. Each party represents and warrants to the other party that:
(i) such party has full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder;
(ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any agreement to which such party is a party or by which it is otherwise bound;
(iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and
(iv) such party acknowledges that the other party makes no representations, warranties, or agreements related to the subject matter of this Agreement that are not expressly provided for in this Agreement.
(b) Acknowledgment by Licensee; Disclaimer of Other Warranties. You agree that the App is provided “AS IS” and that we make no warranty as to the App. You acknowledge and agree that: (i) the App is not an official product that has been commercially released for sale by us; (ii) the App may not be in final form and may contain errors, design flaws or other problems; (iii) the App is not expected to function fully or adequately, and it is expected and anticipated that further testing, modification and development will be necessary to make the App functional; (iv) it may not be possible to make the App functional; (v) use of the App may result in unexpected results, loss of data, project delays or other unpredictable damage or loss to you; and (vi) we are under no obligation to release and/or offer for sale the commercial versions of the App, and we have the right to unilaterally abandon development of the App at any time and without any obligation or liability to you. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE APP, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT.
10. Limitation of Liability. In no event shall we be liable for any damages, whether in contract or tort (including negligence), including but not limited to direct, consequential, special, exemplary, incidental and indirect damages or any claims described in Section 11 below, arising out of or in connection with this Agreement or the use, the results of use, or the inability to use the App, even if we has been advised of the possibility of such damages. You agree that you shall have the sole responsibility for protecting your data, by periodic backup or otherwise, used in connection with the App.
11. Indemnification. We shall defend, at its expense, any claim, lawsuit or related action brought against you alleging that your use of the App in accordance with this Agreement infringes a United States patent or copyright, and shall pay all costs and damages finally awarded in any such action (and reasonable attorneys’ fees incurred in such action), provided that we are given prompt written notice of such claim, any information in the possession of you related to such claim, reasonable assistance by you and sole authority to settle or defend such claim. Notwithstanding the foregoing, we shall not have any liability or obligations under this Section 11 to the extent that the alleged infringement is based upon the use of the App in combination with any other computer programs or technology not licensed by us to you.
12. No Assignment. Neither party may assign or otherwise transfer in any way any of the rights and obligations arising out of this Agreement without the prior written consent of the other party (except that we may transfer this agreement to any successor in connection with any transfer of all or substantially all of our assets or any party that acquires voting control of us in any merger, acquisition or reorganization).
13. U.S. Government Licensees. The App is a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government Licensees acquire only those rights in the App that are provided in this Agreement.
14. Compliance with Law; Noninfringing Use. You will use the App only in compliance with all applicable laws and regulations. You will not use the App in a manner that infringes or misappropriates the intellectual property rights or violates the privacy rights of any third party. Although we have no obligation to monitor your use of the App, we may do so and may prohibit any use of the App we reasonably conclude is in violation of this Agreement or any applicable law or regulation.
15. Third Party Services. The App may enable linking with one or more online third-party communication services, such as email, calendaring, phone, VOIP, CRM and chat services (“Third-Party Services”). Your right to use such Third Party Services is governed by the terms and conditions established by each Third Party Services provider with you, and you warrant and represent that (a) you will comply with all such terms and conditions and (b) you will maintain all necessary rights to permit the App to link with such Third Party Services. You are responsible for paying all fees charged by your Third Party Service providers.
16. Other Provisions.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived only with the written consent of the parties. Any amendment or waiver effected in accordance with this Section 14(a) shall be binding upon the parties and their respective successors and assigns.
(b) Successors and Assigns. Subject to the provisions of Section 12, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
(c) Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law.
(d) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient (i) upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, (ii) one (1) day after e-mail transmission via Internet (with a copy by first-class certified or registered mail, postage prepaid on the first business day after transmission) or (iii) forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, provided in each case that such notice is addressed to the party to be notified at such party’s address, facsimile number or e-mail address as set forth below, or as subsequently modified by written notice.
(e) Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of the Agreement shall be enforceable in accordance with its terms.
(f) Entire Agreement. This Agreement is the product of both of the parties hereto, and constitutes the entire agreement between such parties pertaining to the subject matter hereof, and merges all prior negotiations and drafts of the parties with regard to the transactions contemplated herein. Any and all other written or oral agreements existing between the parties hereto regarding such transactions are expressly canceled.
(g) Independent Contractor. Neither party shall, for any purpose, be deemed to be an agent of the other party and the relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
(h) Arbitration. Any dispute or claim arising out of or in connection with this Agreement, except for a dispute or claim arising from the provisions of Section 7 (Ownership of App) or 8 (Confidentiality) above, will be finally settled by binding arbitration in the State of California in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules. The arbitrator shall apply California law, without reference to rules of conflicts of law or rules of statutory arbitration, to the resolution of any dispute. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this arbitration provision.
(i) Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.
The Legal Part
Questions & Concerns
If you have any questions or concerns regarding privacy on our Sites, please send us a detailed message at [email protected] or at the address below. We will make every effort to resolve your concerns.