BY CLICKING THE “I AGREE”, OR OTHER AUTHORIZING BUTTON AND ACCESSING OR USING THE MOBILE / WEB APPLICATION (AS DEFINED BELOW), YOU HEREBY AGREE TO THE FOLLOWING TERMS AND CONDITIONS. YOU FURTHER AGREE THAT YOU HAVE THE REQUISITE AUTHORITY, POWER AND RIGHT TO FULLY BIND YOURSELF OR THE PERSON AND/OR ENTITY(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO USE THE MOBILE / WEB APPLICATION WHICH WORKTODAY OR ONE OF ITS AUTHORIZED RESELLERS (A “RESELLER”) PROVIDES OR MAKES AVAILABLE TO CUSTOMER.
IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE CUSTOMER OR YOU OR THE CUSTOMER DO NOT AGREE TO ANY OF THE TERMS BELOW, WORKTODAY IS UNWILLING TO PROVIDE THE MOBILE / WEB APPLICATION TO THE CUSTOMER, AND YOU SHOULD NOT CLICK TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU SHOULD DISCONTINUE THE ACCESS AND USE OF THE MOBILE / WEB APPLICATION.
1.0 ACCESS RIGHTS AND RESTRICTIONS.
1.1 Provision of Web Application, Mobile / Web Application; Restrictions.
(a) Provision of Mobile and Web as a Mobile / Web Application. Subject to the terms of this Agreement, WorkToday will make subscriptions to access and use the software offerings made available by WorkToday and/or its suppliers on a hosted Mobile / Web Application, software-as-a-service (SaaS) or other basis (collectively “Mobile / Web Application“) and, as applicable, the related user documentation (“Documentation“) available to Customer and its users.
(b) Restrictions. Except as otherwise expressly permitted under this Agreement, Customer agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Mobile / Web Application or any portion thereof; (b) distribute, transfer, grant sublicenses to, or otherwise make available the Mobile / Web Application (or any portion thereof) to third parties, including, but not limited to, making such Mobile / Web Application available (i) through resellers or other distributors, or (ii) as an application service provider, service bureau, or rental source; (c) create modifications to or derivative works of the Mobile / Web Application; (d) attempt to modify, alter, or circumvent the license control and protection mechanisms within the Mobile / Web Application; (e) use or transmit the Mobile / Web Application in violation of any applicable law, rule or regulation, including, without limitation, any data privacy or protection laws; (f) intentionally access, use, or copy any portion of the Mobile / Web Application or the Documentation (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Mobile / Web Application; or (g) remove, obscure or alter any copyright notices or any name, trademark, service mark, tagline, hyperlink or other designation included on any display screen within the Mobile / Web Application (“WorkToday Marks“).
2.0 PROPRIETARY RIGHTS.
As between the parties, WorkToday and its suppliers will retain all ownership rights in and to the WorkToday Marks, the Mobile / Web Application, the Documentation, all Updates and Upgrades and other derivative works of the Mobile / Web Application and/or Documentation that are provided by WorkToday, and all intellectual property rights incorporated into or related to the foregoing. Customer acknowledges that the goodwill associated with the WorkToday Marks belongs exclusively to WorkToday. All rights not expressly licensed by WorkToday under this Agreement are reserved. As between the parties hereto, Customer will retain all ownership rights in and to all Customer Confidential Information, all pre-existing Customer intellectual property and all Customer Content. WorkToday may use without limitation any suggestions, recommendations or other feedback provided by Customer regarding the Mobile / Web Application.
THE MOBILE / WEB APPLICATION IS PROVIDED “AS-IS” AND WORKTODAY EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. WORKTODAY DOES NOT WARRANT THAT CUSTOMER’S USE OF THE MOBILE / WEB APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
4.0 LIMITATIONS ON LIABILITY.
TO THE EXTENT PERMITTED BY LAW AND EXCEPT WITH RESPECT TO (I) FAILURE TO PAY AMOUNTS PROPERLY OWED, (II) CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, AND (III) VIOLATIONS OF WORKTODAY’S INTELLECTUAL PROPERTY RIGHTS, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER WORKTODAY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) WORKTODAY’S AGGREGATE CUMULATIVE LIABILITY TO CUSTOMER, IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, RUPEES ONE HUNDRED ONLY(Rs. 100).
5.0 TERM, TERMINATION, CANCELLATION & EFFECT.
5.1 Term, Termination; Cancellation.
This Agreement shall commence as of the date the Customer first accesses the Mobile / Web Application and shall continue in effect until terminated as set forth herein. Since the Mobile / Web Application is purchased by you, you will automatically be billed on a recurring basis until you cancel your subscription. You can cancel for any reason and at any time by contacting our Customer Service executive. As further described below, cancellation will take effect as of the end of your current subscription term and you will not receive a refund for any pre-paid subscription fees relating to your current subscription term.
In addition, this Agreement may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice thereof from the non-breaching party, or (b) by WorkToday at any time for any reason or no reason, as determined by WorkToday in its sole discretion.
Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have under this Agreement, (a) all subscriptions, rights and obligations hereunder shall immediately cease; provided that Sections 3.0-5.0, 6.2 and 7.0 through 8.0 and any other provisions with express survival language shall survive termination, and (b) Customer shall pay to WorkToday any outstanding Fees that have accrued prior to the date of termination, if any. Customer will have no right to any refund of pre-paid subscription fees relating to the current paid subscription period during which Customer exercises a cancellation. Customer will have access to Customer Content stored in the Mobile / Web Application during the term.
6.0 FEES AND PAYMENT.
SUBJECT TO THE TERMS AND CONDITIONS BELOW, APPLICABLE FEES (IF ANY) FOR SUBSCRIPTIONS TO THE MOBILE / WEB APPLICATION (COLLECTIVELY, THE “FEES“) WILL BE PAID UPFRONT FOR EACH SUBSCRIPTION TERM AND ON EACH AUTORENEWAL SUBSCRIPTION TERM. IF YOU PURCHASED A PAID VERSION OF THE MOBILE / WEB APPLICATION, THE CREDIT CARD YOU HAVE ON FILE WITH WORKTODAY WILL BE AUTOMATICALLY BILLED ON A RECURRING BASIS UNTIL YOU CANCEL YOUR SUBSCRIPTION. EACH RENEWAL TERM WILL RECUR UNLESS YOU CANCEL PRIOR TO THE END OF SUCH RENEWAL TERM. IF YOU CANCEL BEFORE THE END OF YOUR CURRENT TERM OR RENEWAL TERM, YOU WILL BE CHARGED FOR THE CURRENT SUBSCRIPTION TERM (AND WILL NOT RECEIVE ANY REFUND OF PREPAID FEES), DURING WHICH TIME YOU WILL CONTINUE TO HAVE ACCESS TO THE MOBILE / WEB APPLICATION.
6.2 Payment Terms.
UNLESS OTHERWISE AGREED TO IN WRITING BY THE PARTIES, CUSTOMER WILL PAY TO WORKTODAY ANY APPLICABLE FEES AS DESCRIBED IN SECTION 6.1 ABOVE. ANY AMOUNTS PAYABLE SHALL BE IN THE CURRENCY OF INDIA AND SPECIFICALLY EXCLUDE (AND CUSTOMER IS RESPONSIBLE FOR) ANY AND ALL APPLICABLE TAXES.
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements (each a “Force Majeure Event“). The obligations and rights of the party so excused will be extended on a day to day basis for the duration of the Force Majeure Event. This Agreement applies to each party’s users, representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws Union of India. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the courts located in Indore. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. The foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by WorkToday. The terms on any purchase order or similar document submitted by Customer to WorkToday will have no effect and are hereby rejected. Unless otherwise expressly stated, all legal notices, consents and approvals under this Agreement must be delivered in writing by courier, or by certified or registered post, to the other party at its official headquarters to the attention of the chief legal officer and are deemed delivered when received.