Workstream IQ Subscription Terms

THIS WORKSTREAM IQ SUBSCRIPTION TERMS (“IQ TERMS”) IS ENTERED INTO BETWEEN WORKSTREAM, INC. (“WORKSTREAM”) AND ("YOU" OR "YOUR" OR "CUSTOMER") IDENTIFIED ON THE ORDER (AS DEFINED BELOW).  BY EXECUTING THE ORDER, CLICKING THE APPROPRIATE BUTTON, LOGGING INTO, INSTALLING, ASSESSING OR OTHERWISE USING THE SERVICES (DEFINED BELOW), YOU AGREE TO BE BOUND BY THE TERMS OF THESE IQ TERMS. IF YOU ARE ENTERING INTO THESE IQ TERMS ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY (IN WHICH SUCH ENTITY IS THE "CUSTOMER"). WORKSTREAM AND CUSTOMER MAY ALSO BE REFERRED TO INDIVIDUALLY AS "PARTY" OR COLLECTIVELY AS THE "PARTIES" UNDER THIS AGREEMENT. CERTAIN CAPITALIZED TERMS ARE DEFINED IN SECTION 1 (DEFINITIONS) AND OTHERS ARE DEFINED CONTEXTUALLY IN THESE IQ TERMS OR IN THE APPLICABLE ORDER.

1. DEFINITIONS.

“Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or controlled by, or is under common ownership or control with a party, where “ownership” means the beneficial ownership of fifty percent (50%) or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.  

“Agreement” means, collectively, these IQ Terms and each applicable Order entered into by the Parties. 

“Aggregate Data” means aggregated and de-identified data that does not reasonably identify Customer or any User or otherwise reveal the data was obtained in connection with Workstream’s relationship with Customer, may be derived, generated, or compiled from any Usage Data. 

“Documentation” means the Workstream provided instructions, descriptions of Support, and other descriptive product information applicable to the Services available as provided or made available to Customer by Workstream, as may be updated from time to time. 

“Franchisee” means a third party franchised operator of one or more Customer’s businesses.

“Intellectual Property Rights” mean any and all patents, patent registrations, patent applications, business processes, copyrights, data rights, trademarks, trade names, trade dress, service marks, service names, trade secrets, mask works, moral rights, know-how or any other proprietary rights arising or enforceable under the laws of the United States, any other jurisdiction, or any bilateral or multilateral treaty regime.

“Order” means the applicable ordering document, statement of work, order page or user interface, acceptable to Workstream, executed by the Parties referencing this Agreement that sets out the Services, Usage Levels, and amounts purchased by Customer hereunder.

“Outputs” mean the reports, insights, visualizations, analytics data and other information generated through the Service and provided or delivered to Customer under the terms of this Agreement and such Outputs shall be included in the definition of Services.  

“Services” means the Workstream IQ service and Software functionality provided as part of the Services, and all Updates, ordered on an Order that provides the functionality described in the Documentation.

"Software" means any software, scripts, apps provided to Customer by Workstream for use with the Services.

“Subscription Term” means the period Customer is entitled to use the Services as set forth in the applicable Order.

"Support" means support for the Services as further described in Section 2.3 below.

“Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes as further described in Section 6.4 below.

“Third-Party Applications” means services, products, platform, technology, or content offered by third parties.

“Updates” means all updates and enhancements that Workstream generally makes available, at no additional charge, to its customers of the Services identified in an Order and licensed hereunder pursuant to Section 2.2 below.

“Usage Data” means compiled statistical and other information relating to the performance, operation, and use of the Services. Usage Data does not include any personally identifiable data.

“Usage Levels” means metrics used to determine Customer access and use of the Services, as set out in an Order.

“Users” means an individual and employed by and authorized by Customer to use or access the Services on behalf of Customer pursuant to the terms of this Agreement.  

2. PROVISION OF SERVICES

2.1 Access to Services.  Subject to all the terms and conditions of this Agreement, including timely payment of Fees (defined below), during the Subscription Term, Workstream will make the Services available to Customer and its Users pursuant to an Order for Customer’s internal business use at the Usage Levels by Customer as set forth in such Order.  Customer agrees that its license and use of the Services are not contingent on any future functionality or features or dependent on any oral or written public comments made by Workstream regarding future functionality or features. Customer acknowledges it is obtaining only a limited right to use the Services and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer (or its Users) under the Agreement. 

2.2 Changes to Services.  Subject to Section 7.2 below, Workstream may issue new releases for the Services during the Subscription Term which may include Updates, or other modifications which will be included in the Fees set out in the Order. Without limiting the foregoing, Workstream may add additional features at no additional charge, however these free features may be withdrawn without further notice or reductions in Fees. 

2.3 Support Services.  Subject to the terms and conditions of this Agreement, Workstream will exercise commercially reasonable efforts to (a) provide Support for the use of the Services, and (b) keep the Services operational and available to Customer, in each case in accordance with its standard policies and procedures, and make the Services available 24 hours a day, 7 days per week ("Service Level Commitment") except: (i) planned downtime (of which Workstream shall give at least "72" hours of notice and which Workstream shall schedule to the extent practicable during weekend hours between Friday and Monday Pacific Time), and (ii) any unavailability caused by circumstances beyond Workstream’s reasonable control, including for example Force Majeure Event, or other labor problem (other than one involving Workstream employees), Internet service provider failure or delay, Third Party Applications, Customer network or systems outages or downtimes, or denial-of-service attack.   For the avoidance of doubt, such Support services do not include support for Third-Party Applications.

3. USE OF SERVICES

3.1 Users. Only Users are permitted to access and use the Services. Customer shall be responsible for: (a) Users’ compliance with this Agreement and any Order(s) issued hereunder; (b) maintaining the confidentiality of usernames, passwords, and other account information (as applicable); (d) all activities that occur under its Users’ usernames, passwords, or accounts as a result of Users’ access to the Services; and (e) ensuring Users’ use the Services only in accordance with (i) Documentation, and (ii) all applicable laws and government regulations. 

3.2 General Restrictions. Customer shall not: (a) make any Services available to any third party other than Customer or Users subject to the express provisions of Section 3.4; (b) sell, resell, license, sublicense, distribute, rent, or lease any Services, or include any Services in a service bureau or outsourcing offering Users subject to the express provisions of Section 3.4; (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein; (e) permit direct or indirect access to or use the Services in a way that circumvents the Usage Levels, or use the Services to access any Workstream intellectual property, except as expressly permitted under the Agreement; (f) frame or mirror any part of the Services, other than framing on Customer’s own intranet(s) (as applicable), or otherwise for its own legitimate business purposes or as permitted in the Documentation; (g) access the Services in order to build a competitive product or service or to benchmark with a non-Workstream product or service; (h) reverse engineer, copy, or modify software included as part of the Services (except to the extent expressly permitted by applicable law in conflict with this restriction); (i) utilize the Services for improper, fraudulent, or other non-legitimate business purposes; (j) use any automated device or process such as a robot, spider, data-mining, web-scraping, or other means to circumvent, access, or use or integrate with the Services or its contents, including but not limited to other user account information;  or (k) damage, interfere, disable, or impair the Services in any way. Without limiting the generality of the foregoing, Customer is expressly prohibited from using, or permitting or inducing any third party to use, the Services, or their related processes, to ascertain Workstream’s proprietary methodologies, algorithms, variables, or other parameters used by Workstream to generate the Services. Customer may not remove from, and shall duplicate on all copies of, Documentation, any copyright, trademark or other notice of origin or ownership that has been affixed thereon by Workstream or Workstream’s Affiliates, or their suppliers or licensors.

3.3 Unlawful Use of Services. Customer acknowledges that the Services may only be used for legitimate transactions that are permitted by law. Illegal use of the Services will be deemed a material breach of the Agreement, and such Services may be terminated at Workstream’s discretion. 

3.4 Use of Reports.  Customer may use the Services and Outputs for the internal business purpose for which the applicable Service is contemplated. Customer may redistribute the Outputs, or a portion thereof, only to its officers, directors, employees, advisors, Affiliates or Franchisees (each a “Permitted Person”) or as otherwise required by law. No Permitted Person shall have any further rights of use or redistribution with respect to, or any ownership rights in, the Outputs or any portion thereof, that are provided to the Permitted Person by Customer. Customer may include portions of the Outputs in Customer materials provided to third-parties who are not a Permitted Person with the prior written permission of Workstream and attribution in such materials that the inclusion of such Outputs are provided with permission of Workstream.

 

3.5 Obligations Relating to the Services. 

1. Information and Instructions. Customer is solely responsible for (i) following instructions that Workstream provides to Customer with respect to the Services, whether such instructions are provided through the Service, email, or otherwise, (ii) obtaining, maintaining, and keeping secure any equipment and ancillary services necessary to connect to, access, or otherwise utilize the Service, including but not limited to internet access, networking equipment, hardware, software, and operating systems, and (iii) maintaining applicable accounts with providers of Third-Party Services (as defined below) utilized by Customer.
2. Passwords and Credentials. Customer will, and will cause authorized users of Customer’s Service to take reasonable steps to adequately secure, and keep confidential, any Service passwords or credentials, and any information accessible through Services. If Customer believes or suspects that Customer’s Services or passwords or credentials for the Service have been disclosed to, accessed by, or compromised by unauthorized persons, Customer must immediately notify Workstream. Workstream reserves the right to prevent access to the Services if Workstream has reason to believe that Customer’s Service or passwords or credentials for the Service have been compromised.
3. Third-Party Notices. Customer is also obligated to promptly notify Workstream of any third-party notices that Customer may receive which could affect Workstream’s ability to effectively provide the Services or increase the likelihood that a Claim (as defined below) is brought against Customer or Workstream in connection with the Services.

4. THIRD-PARTY APPLICATIONS

Customer may choose to use the Services with Third-Party Applications not provided by Workstream as it deems appropriate   Use of such Third-Party Applications is subject to the applicable service provider’s terms and conditions, including the payment of applicable fees, for which Customer is solely responsible for such obligations.  Workstream has no liability for Third-Party Applications or how such Third-Party Applications use Customer Records. If Customer enables a Third-Party Application with the Services, Workstream is expressly granted permission to access and/or exchange Customer Records with such the Third-Party Application on Customer’s behalf in accordance with the terms of the Agreement. 

5. PROPRIETARY RIGHTS AND LICENSES.

5.1 Workstream Ownership.  As between Workstream and Customer, all rights, title, and interest in and to all Intellectual Property Rights in the Services Workstream’s Confidential Information, Feedback, Aggregate Data, and Usage Data are and will remain owned exclusively by Workstream and its licensors.  Ownership in all Updates, derivatives, modifications, new functionalities, enhancements, templates, formats, and customization related to the Services created by or on behalf of Workstream will immediately vest in Workstream upon creation. Nothing in this Agreement will preclude or restrict Workstream from using or exploiting any Feedback, concepts, ideas, techniques, or know-how of or related to the Services. 

5.2 Outputs. Provided Customer remains in compliance with the terms of this Agreement, Customer shall be permitted to retain all Outputs received prior to termination or expiration of the Agreement for use within the scope permitted by this Agreement.

5.3 Aggregate Data and Usage Data. Customer agrees that Workstream and its Affiliates (as applicable) may create a data set consisting of Aggregate Data and Usage Data. Workstream may use this Aggregate Data or Usage Data (i) provide and maintain Services; (ii) improve or offer new Services; (iii) measure performance of Services; or (iv) for any other lawful business purpose as Workstream so desires, in Workstream’s sole discretion, including industry analysis, benchmarking, analytics, and marketing. Except as necessary to deliver the Services, Workstream will not provide third parties identifiable data regarding Customer or Customer’s Users.

5.4 Feedback. To the extent that Customer or its Users provide any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Services or Documentation (“Feedback”), Customer hereby grants Workstream an irrevocable, perpetual, royalty-free license to use, incorporate, and further develop such Feedback without any restrictions or attribution. 

5.5 Limited Trademark License. Customer grants Workstream the limited, worldwide, and revocable license to include Customer’s logo, branding, and trademarks in the Service for purposes providing Consumer the Services contemplated under this Agreement.

Customer's indemnification obligations under these Terms include: (x) all damages, costs, and attorney fees finally awarded against the Workstream Parties in any proceeding under this Agreement; (y) all out-of-pocket costs (including reasonable attorney fees) reasonably incurred by the Workstream Parties in connection with the defense of such proceeding (other than when Customer have accepted defense of such claim); and (z) if any proceeding arising under this Agreement is settled, any amounts to any third party agreed to by Customer in settlement of any such claims. The Workstream Parties may control, in their sole discretion, the defense or settlement of any third-party claims.

6. FEES AND PAYMENT.

6.1 Fees. Customer shall pay (or have paid on its behalf) Workstream all undisputed fees set forth in the applicable Order (“Fees”). Except as expressly set forth in this Agreement, all payment obligations are non-cancelable, and all Fees paid are non-refundable.  Fees for renewal Subscription Terms are at Workstream's then-current rates, regardless of any discounted pricing set forth in a prior Order. 

6.2 Payment Terms.  Unless otherwise stated in an applicable Order, all Fees will be billed annually in advance and in United States dollars.  All invoices for Fees are due and payable within the timeframe set forth in the applicable Order, without deduction or set off. Customer is responsible for providing complete and accurate billing and contact information to Workstream and notifying Workstream of any changes to such information.  If Customer fails to pay any undisputed portion of a past due invoice within 30 days after receiving notice that its account is overdue, Workstream may, without limiting its other rights and remedies, suspend the applicable Services until such amounts are paid in full (“Suspension for Non-Payment”).  Workstream will not be obligated to continue to provide Services without payment of applicable Fees.

6.3 Use of Purchase Orders.  No additional or inconsistent terms of any purchase order, or other form provided by Customer, will modify, or supplement the Agreement, regardless of any failure of Workstream to object to such terms, and any such additional or inconsistent terms in the purchase order will be void.

6.4 Taxes. Unless otherwise provided, Fees do not include any Taxes. Customer is responsible for paying all Taxes, including, but not limited to sales, use, GST, and VAT taxes, associated with its purchases hereunder, excluding Taxes based on Workstream’s net income or property. If Workstream includes on the invoice such Taxes for which Customer is responsible, the tax amount invoiced shall be paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority upon execution of this Agreement. Taxes not included on a Workstream invoice shall be the responsibility of the Customer to remit to the appropriate tax authorities as necessary.

7. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS.

7.1 General Warranty.  Each Party represents and warrants that (a) it has the legal power to enter and perform under this Agreement and (b) it shall comply with all applicable laws in its performance hereunder.

7.2 Workstream Limited Services Warranty.  Workstream warrants that (a) the Services will perform materially in accordance with the applicable Documentation and (b) Workstream will not decrease the functionality of the Services during the current Subscription Term. Customer’s exclusive remedy and Workstream’s entire liability for a breach of the above warranties will be the correction of the deficient service that caused the breach of warranty, provision of comparable functionality, or if, Workstream cannot accomplish the foregoing in a commercially reasonable manner, Workstream may terminate the deficient service and refund Customer the Fees for the terminated Services that Customer prepaid to Workstream, prorated to cover the remaining portion of the Subscription Term following written notice from Customer of the breach of warranty.

7.3 Disclaimers.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY OR ITS LICENSORS MAKE ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WORKSTREAM DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS.  

USE OF WORKSTREAM SERVICE DOES NOT CREATE, AND IS NOT INTENDED TO CREATE, ANY ATTORNEY CLIENT RELATIONSHIP OR OTHER ADVISORY RELATIONSHIP. CUSTOMER IS SOLELY RESPONSIBLE FOR OBTAINING ITS OWN LEGAL, TAX, ACCOUNTING OR EMPLOYMENT ADVICE.

THE OUTPUTS PROVIDED BY THE SERVICES ARE INTENDED TO SUPPORT INFORMED DECISION-MAKING BUT SHOULD NOT BE THE SOLE BASIS FOR MAKING BUSINESS DECISIONS. CUSTOMER IS ADVISED THAT DECISIONS MADE USING THIS SERVICE ARE MADE AT CUSTOMERS OWN RISK. WORKSTREAM ASSUMES NO RESPONSIBILITY FOR ANY LOSSES OR DAMAGES ARISING FROM SUCH DECISIONS, WHETHER DIRECTLY OR INDIRECTLY. CUSTOMER SHOULD CONSIDER MULTIPLE DATA SOURCES AND EXERCISE DUE DILIGENCE BEFORE MAKING BUSINESS DECISIONS.

7.4 Customer Acknowledgement. 

Customer expressly acknowledges that the Services are provided for informational purposes only, and that, except as otherwise expressly provided in this Agreement, Workstream has no liability to Customer in connection with the Services. Customer further acknowledges the matters set forth below:

(a) The Services depend, directly or indirectly, on: (i) data generated or aggregated by Workstream and (ii) data provided by third party sources (collectively “Input Data”). Input Data used, directly or indirectly, in connection with the Services may contain errors or omissions, and the Services may not be complete, accurate or without errors or omissions. As a result, Workstream does not guarantee and has no responsibility for the accuracy, reliability or completeness of any Input Data used in connection with the Services, and Workstream may rely on Input Data in all respects without independent verification.

(b) The Services rely on assumptions, judgments, historical data, tests, calculations, and similar information, which may be uncertain and may not be indicative or predictive of future performance or activities. Customer is solely responsible for, and Workstream has no liability with respect to, the use in the Services of any such assumptions, judgments, historical data, tests, calculations and similar information.

(c) Workstream is not acting as an agent, representative or fiduciary of Customer under this Agreement, and Workstream is not providing any recommendation or advice to Customer as part of the Services.

(d) Workstream shall in no way be restricted from furnishing services similar to the Services, or any other services, to others by virtue of this Agreement or its provision of the Services to Customer.

(e) Customer shall not use the Service for the purpose of making decisions about third party’s eligibility for employment, health care, credit or insurance or for making decisions solely by automatic means where the decision has a significant effect on the third party or in any that does or can be used to discriminate in violation of the law. 

8. INDEMNIFICATION

8.1 Workstream IP Indemnification. 

1. Third Party Claims. Workstream will defend Customer from and against any third-party claim (“Claim”) to the extent such claim alleges that Customer’s use of the Services (as authorized by this Agreement) infringes any valid and enforceable third-party U.S. Intellectual Property Rights.  Workstream will indemnify and pay all damages (including reasonable attorney’s fees) finally awarded against Customer by a court of competent jurisdiction (or amounts agreed in monetary settlement) in any such Claim.
2. Workstream Determination. If any such Claim is brought or threatened, or if Workstream reasonably believes that the Services may become the subject of an infringement Claim, Workstream may, at its sole option and expense (1) procure for Customer the right to continue to use the applicable Services; (2) modify the Services to make it non-infringing; (3) replace the affected aspect of the Services with non-infringing technology having substantially similar capabilities; or (4) if Workstream determines none of the foregoing is commercially practicable, terminate the Agreement upon thirty (30) days written notice and refund Customer any prepaid fees for the remainder of the applicable Subscription Term. 
3. Limitations. Workstream’s defense and indemnity obligations do not apply to (1) any modification to the Services made by anyone other than Workstream, to the extent that the Services would not be infringing but for such modification, (2) any use of the Services in combination with software, products or services not provided by Workstream, to the extent that the Services would not be infringing but for such combination, (3) Customer’s use of the Services not in compliance with the terms of this Agreement, to the extent the Services would not be infringing but for such non-compliance.  

This indemnity states Workstream’s entire liability, and Customer’s exclusive remedy, for any Claims as described in Section 8.1.

8.2 Workstream Other Indemnification. Workstream will defend Customer from and against any Claim to the extent resulting from (a) an alleged breach of Sections 3.2 or (c) Workstream’s violation of any applicable law, including any local, state or federal employment (other than arising under Section 8.1). Workstream will indemnify and pay all damages (including reasonable attorney’s fees) finally awarded against Customer (or amounts agreed in monetary settlement) with respect to such Claim. 

This indemnity states Workstream’s entire liability, and Customer’s exclusive remedy, for any Claims as described in this Section 8.2.

8.3 Customer Indemnification. Customer will defend Workstream from and against any Claim to the extent resulting from (a) an alleged breach of Sections 3.2 or 7.1 or (c) Customer’s violation of any applicable law, including any local, state or federal employment or wage transparency law. Customer will indemnify and pay all damages (including reasonable attorney’s fees) finally awarded against Workstream (or amounts agreed in monetary settlement) with respect to such Claim. 

This indemnity states Customer’s entire liability, and Workstream’s exclusive remedy, for any Claims as described in this Section 8.3.

8.4 Procedure. The defense and indemnity obligations above are conditioned upon the indemnified Party providing the indemnifying Party with (a) prompt written notice, (b) sole control over the defense and settlement of, and (c) all information and assistance reasonably requested by the indemnifying Party in connection with the defense or settlement of, any claim, provided the indemnified Party’s prior written consent shall be required with regard to any settlement that imposes any obligation or liability on the indemnified Party.  The indemnified Party may appear in connection with such claims, at its own expense, through counsel reasonably acceptable to the indemnifying Party.  

9. CONFIDENTIALITY.  

9.1 Definition and Exclusions.  As used herein, "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in an Order), the Services, documentation, business and marketing plans, technology and technical information, product designs, and certification and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to Disclosing Party; (ii) was known to Receiving Party prior to its disclosure by Disclosing Party without breach of any obligation owed to Disclosing Party; (iii) was independently developed by Receiving Party without breach of any obligation owed to Disclosing Party; or (iv) is received from a third-party without breach of any obligation owed to Disclosing Party.

9.2 Obligations.  Receiving Party shall not disclose any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, except with Disclosing Party's prior written consent. Receiving Party shall protect the confidentiality of Disclosing Party's Confidential Information in the same manner that it protects the confidentiality of its own confidential information of like kind (but in no event using less than reasonable care). Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information.

9.3 Disclosures Required by Law.  If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, it shall provide Disclosing Party with reasonable prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if Disclosing Party wishes to contest the disclosure.

9.4 Remedies.  Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each Party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 9.

9.5 Return or Destruction.  Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information as long as it remains confidential and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election) all materials shall destroy or return to the other Party any physical Confidential Information of the other Party in its possession or under its control and shall purge any electronic copies of such Confidential Information from its electronic systems, except that: (A) each Party shall be permitted to retain Confidential Information of the other Party that is contained in its electronic archives which cannot be deleted using commercially reasonable, generally available technical means (provided that Recipient shall make no further use of such Confidential Information for any purpose) and (B) both Parties shall be permitted to retain copies of this Agreement and related documentation.

10. LIMITATION OF LIABILITY

10.1 Exclusion of Damages.  NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, REVENUES, GOODWILL OR BUSINESS INTERRUPTION, SUBSTITUTE GOODS OR SERVICES OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 

10.2 Limitation of Liability.  A PARTY’S AGGREGATE CUMULATIVE LIABILITY FOR ALL DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES PROVIDED HEREUNDER WILL NOT EXCEED THE FEES PAID OR PAYABLE TO WORKSTREAM GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.  THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND THIS LIMIT.  THE LIABILITY LIMITATIONS UNDER THIS SECTION 10.2 WILL NOT APPLY TO (A) CUSTOMER’S OBLIGATIONS TO PAY FEES DUE UNDER THIS AGREEMENT, (B) BREACH OF SECTIONS 3.2, 3.6(C) OR 9, (C) AMOUNTS FINALLY DETERMINED PURSUANT TO EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 8, OR (D) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

11. TERM AND TERMINATION.

11.1 Term of Agreement.  This Agreement will commence on the Effective Date and continue until terminated as permitted herein or until the expiration of the term set forth in the last in force Order (the “Term”).  If there are no active Orders, this Agreement may be terminated by either Party upon sixty (60) days’ prior written notice.

11.2 Subscription Term. The initial Subscription Term and any applicable renewal Subscription Term will commence and expire in accordance with the start date and end date set forth in each applicable Order. Unless otherwise specified in an Order, the Subscription Term will automatically renew on the same terms for each subsequent renewal Subscription Term unless a Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the end of the applicable Term.

11.3 Suspension. In the event of Customer’s or a User’s breach of this Agreement, including without limitation for Suspension for Non-Payment or violation of the restrictions in Section 3.2 above, Workstream, in its reasonable discretion, may suspend Customer or a User’s access to or use of the Services. Notwithstanding the foregoing, Workstream shall use commercially reasonable efforts, unless the circumstances dictate otherwise, to reasonably notify Customer or a User via email before taking the foregoing actions. 

11.4 Termination. Either Party may terminate this Agreement or any Order by written notice if the other Party is in material breach of this Agreement, where such material breach is not cured within thirty (30) days after written notice of the breach from the non-breaching Party, or with immediate effect where such material breach cannot be cured. For the avoidance of doubt, Customer’s noncompliance with Section 3.2 is deemed a material breach of this Agreement. This Agreement may be terminated by either Party with immediate effect if the other Party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within thirty (30) days. 

11.5 Effect of Termination. Upon the termination of this Agreement for any reason: (a) all outstanding Orders and access to the Services will automatically terminate; (b) Customer and its Users shall immediately cease access and use of the Services and (c) all outstanding payment obligations of Customer will become due and payable immediately. 

11.6 Surviving Provisions. The Sections titled Section 5, Section 6, Section 7, Section 8, Section 9, Section 10,  11, and 12 will survive any termination of this Agreement and any provisions of any applicable Service-Specific Terms that by their nature would continue beyond expiration, termination or cancellation of this Agreement shall survive any such expiration, termination or cancellation.

12. GENERAL PROVISIONS.

12.1 Each Party may conduct audits or reviews of the other Party to ensure compliance with the terms and conditions of this Agreement. Any such audit or review shall be conducted (i) no more than once a year (unless a Party reasonably believes that the other is not in compliance with its obligations); (ii) during the Party’s normal business hours; (iii) in a manner that will not unreasonably interfere with the Party’s daily operations; (iv) at the requesting Party’s expense (except as provided below); and (v) subject to all of the Party’s reasonable information security and technical policies. If a Party fails to cooperate in the conduct of any such audit within fifteen (15) days of receiving the audit request, or if such audit reveals any material non-compliance with the terms and conditions of this Agreement, the auditing Party may: (1) immediately suspend the delivery of the Services until the material non-compliance is remedied; and/or (2) treat such failure or material non-compliance as a material breach under this Agreement.

12.2 Notices. Any required notice will be given in writing by customary means with receipt confirmed at the address of each Party set forth on the Order, or to such other address as either Party may substitute by written notice to the other. Any required notice under this Agreement or any Order may be provided to the email address in the signature block, or where otherwise indicated, followed by the hard copy notice required. The hard copy notice may be waived by both Parties via the email notice. Customer must provide their email address for notices in the Order or in the signature block herein, if applicable.  Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, three (3) days after deposit via certified mail, or upon confirmation of receipt if sent by email.  

12.3 Waivers; Severability. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect.

12.4 Force Majeure. Neither Party will be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in its performance under this Agreement (except for payment of Fees) due to any cause beyond its reasonable control, including without limitation elements of nature or acts of God, war, riots, civil disorders, rebellions, revolutions, pandemics or epidemics (or similar regional health crisis), actions or decrees of governmental bodies, acts or threats of terrorism, strikes, labor disputes, failure of utilities or telecommunications, or other causes that are (i) beyond the reasonable control of and without fault or negligence of the affected Party, (ii) hinders, delays or prevents such Party in performing any of its obligations, and (iii) by the exercise of reasonable diligence such Party is unable to prevent or provide against, (each a “Force Majeure Event”). The Party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event. 

12.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity. If an assignment of this Agreement occurs pursuant to a merger, reorganization or sale of all or substantially all assets or equity, the assigning party agrees to notify the other party within 30 days of such assignment. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.6 Subcontractors. Workstream may use subcontractors and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate, provided that Workstream remains responsible for the performance of each subcontractor. 

12.7 Compliance. Each Party agrees to comply fully with all applicable laws, rules and regulations, including but not limited to all applicable anti-bribery and anti-corruption laws and regulations, including without limitation the U.S. Foreign Corrupt Practices Act. Each Party agrees to comply with all applicable rules and regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Services.

12.8 Government End-Users.  Elements of the Services. and Documentation are “commercial items,” as that term is defined at FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in FAR 12.212 and DFARS 227.7202.  Consistent with FAR 12.212 or DFARS 227.7202, as applicable, the Services and Documentation are made available to U.S. Government end users only as a commercial item, with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.

12.9 Governing Law and Arbitration. This Agreement shall be governed exclusively by the internal laws of the state of California, without regard to its conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. All disputes arising under or in connection with this Agreement shall be submitted to JAMS or a successor organization for binding arbitration by a single arbitrator in San Francisco, California, provided that a Party may also seek injunctive relief as provided in Section 9.4 in a court of competent jurisdiction.  The Parties agree to use good faith efforts to conduct the arbitration hearing within one hundred eighty (180) days of the filing of an arbitration demand with JAMS by any Party hereto, and a decision shall be rendered by the arbitrator within thirty (30) days of the conclusion of the hearing.  The arbitrator shall have complete authority to render all relief, legal and equitable, appropriate under this Agreement. The arbitrator shall award costs of the proceeding, including reasonable attorney’s fees, to the Party determined to have substantially prevailed. The Parties hereby consent to the exclusive jurisdiction of the state and federal courts located in and serving San Francisco, California, for the enforcement of arbitral awards or injunctive relief in accordance with Section 9.4.