Terms of Service
This SOFTWARE AS A SERVICE AGREEMENT (this "Agreement") is entered into and shall be effective as of the date and time of Your acknowledgement on the workstiming.com website between KABI, LLC., a California corporation ("Developer"), and ("You" or "Your"). Developer and You are individually referred to as "party" or collectively referred to as the "parties."
WHEREAS, Developer has created certain software for use in automotive maintenance locations that enhances scheduling, productivity, and customer satisfaction (the "Licensed Program");
WHEREAS, You are an automotive service facility, where the Licensed Program can be implemented and used for the benefit of Your operations;
WHEREAS, You wish to obtain a limited, non-exclusive license to use the Licensed Program, and the Services (as defined in Section 1), and Developer wishes to grant such license to You;
NOW, THEREFORE, in consideration of the mutual promises contained herein, the receipt and sufficiency of which is hereby acknowledged, Developer and You hereby agree as follows:
- Agreement Definitions. Software as a service consists of system administration, data hosting management, maintenance, and monitoring activities that Developer performs for the Licensed Program, as well as any other services provided by Developer in connection with the Licensed Program (collectively, the "Services"). The term "Users" means those individuals authorized by You or on Your behalf to use the Services. The term "Your Data" means the data provided by You that will reside in Your services environment hosted by Developer.
- Rights Granted. Upon installation of the Licensed Program, You shall have the non-exclusive, non-assignable license to use the Licensed Program and the Services solely for Your internal business operations and subject to this Agreement. You may allow Users to use the Services for this purpose and You are responsible for the Users' compliance with this Agreement.
Ownership and Restrictions. You shall retain all ownership and
intellectual property rights in and to Your Data. Developer or
its licensors shall retain all ownership and intellectual
property rights to the Services and the Licensed Program.
Developer shall have perpetual, universal access to all
aggregated, regional, performance Data for consulting, marketing,
operational and market feedback or other non-stated purposes to
benefit its business.
You may not without Developer’s prior written consent, as exercised in its reasonable discretion:
- remove or modify any program markings or any notice of Developer's or its licensors' proprietary rights;
- make the Licensed Program or materials resulting from the Services available in any manner to any third party for use in the third party's business operations;
- modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Licensed Program (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by the Licensed Program), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to the Licensed Program and the Services;
- disclose results of any services or program benchmark tests without Developer's prior written consent; or,
- license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, Developer programs or materials available, to any third party other than, as expressly permitted under the terms of this Agreement.
- except as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and,
- You make reasonable efforts to prevent unauthorized third parties from accessing the Services.
Services, Maintenance and Support.
Subject to Section 5, Developer will provide the Services with
reasonable skill, care and diligence, twenty-four hours (24 hrs.)
per day, seven (7) days per week. Developer shall provide the
following maintenance and support:
- software patches and/or fixes to resolve known bugs, defects or malfunctions in the Licensed Software; and
- technical support for reporting and responding to support issues.
- Upgrades. Developer will upgrade the Licensed Software from time to time and will make this available to You in new releases. Developer reserves the right to upgrade server-side software components without prior notice; provided, however, Developer shall notify You at least twenty-four hours (24 hrs.) in advance of any scheduled down-time. All such upgrades shall be performed outside of Your normal service hours.
- Data Security. Developer shall use commercially reasonable efforts and pre-emptive caution to ensure that Developer’s server is not compromised by viruses or intrusions and that Your Data remains secure. Developer shall backup Your Data regularly onto separate physical storage. Developer shall notify You within two (2) days of Developer’s discovery of a security breach and a written copy of the results of Developer’s investigation into the breach.
Indemnification. Developer shall
indemnify, defend and hold You harmless from and against any and
all damages, liabilities, costs and expenses (including, but not
limited to, attorneys’ fees) incurred by You as the result of any
judgment or proceeding against You arising out of any claim that
the Licensed Software or the Services, or any part thereof,
infringes any patent, copyright, trademark, trade secret, or other
proprietary right of any third party, provided You:
- notify Developer promptly in writing, not later than fifteen (15) days after You receive notice of the claim;
- give Developer sole control of the defense and any settlement negotiations; and
- give Developer all information, authority, and assistance Developer reasonably needs to defend against or settle the claim.
- End of Agreement. You may terminate this Agreement with a 30 day written notice at any time, for any reason or for no reason, as exercised in Your sole and absolute discretion. Developer may terminate this Agreement with a 30 day written notice at any time, for any reason or for no reason, as exercised in the Developer’s sole and absolute discretion. Developer may immediately suspend your password/s, account, and access to or use of the services (i) if you fail to pay Developer as required under the agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within this Agreement. At Your request, and for a period of sixty (60) days after the termination of this Agreement, Developer shall provide You with access to the Services solely to the extent necessary for You to retrieve a file of Your Data from the Services environment. Developer shall irretrievably delete Your Data from its server after the expiration of such sixty (60) day period. Sections 7, 8, 10 and 12 shall survive the termination of this Agreement.
- Term. The term of this Agreement begins on the date we activate Services for your Account. This Agreement will continue from month to month until terminated by either party pursuant to the terms hereof.
Nondisclosure. By virtue of this
Agreement, the parties may have access to or receive information
that is considered confidential by the disclosing party
("Confidential Information"). Each party agrees that it will not
disclose the other party’s Confidential Information, except as
reasonably required for the performance of obligations under this
Agreement. Confidential information shall be limited to the terms
and pricing under this Agreement, Your data residing in the
Services environment, and all information clearly identified as
confidential at the time of disclosure.
A disclosing party's confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the recipient; (b) was in the recipient’s lawful possession prior to the disclosure and had not been obtained by the recipient either directly or indirectly from the disclosing party, provided, however, this shall not apply to any of Your information received by Developer; (c) is lawfully disclosed to the recipient by a third party without restriction and without breach of this Agreement after the recipient confirms with the disclosing party that said third-party had the right to do so; or (d) is independently developed by the recipient without use of the disclosing party’s Confidential Information as proven by the Recipient’s documentation, information and records.
The parties shall hold each other's Confidential Information in confidence for a period of three years (3 yrs.) from the date of termination of this Agreement. Also, each party shall disclose the other party’s Confidential Information only to those employees or agents who as is necessary for the performance of such party’s obligations under this Agreement and only such employee or agent shall be required to protect such Confidential Information against unauthorized disclosure in a manner no less protective than under this Agreement. Developer will protect the confidentiality of Your Data residing in the Services environment in accordance with Developer’s security practices specified in this Agreement.
If a party becomes legally compelled to disclose the other party’s Confidential Information, then the recipient shall promptly notify the disclosing party of such requirement so that the disclosing party may seek a protective order or other appropriate remedy. If such a protective order or other remedy is not obtained, then the recipient shall disclose only that portion of the Confidential Information that the recipient is advised by its legal counsel is legally required to be disclosed and to use reasonable efforts to obtain assurance of confidential and proprietary treatment of the Confidential Information to be disclosed, if and to the extent such treatment is possible.
Each party acknowledges, understands and agrees that if it or anyone acting in concert with or on its behalf broadcasts, discloses, divulges, provides, publishes or reveals, whether intentionally or negligently, all or any portion of the other party’s Confidential Information to any person shall result in adverse economic consequences to the disclosing party. The recipient also acknowledges, understands and agrees that if it or anyone acting in concert with or on its behalf breaches this Agreement that the disclosing party shall incur substantial damages which shall be difficult, impossible or impractical to determine, so that it may not possess adequate legal remedies. Therefore, each party also acknowledges, understands and agrees that a disclosing shall be entitled to injunctive and other equitable relief, in addition to any other remedies available at law. A disclosing party use of any remedy specified herein for the enforcement of this section 7 is not exclusive and shall not deprive the disclosing party of, or limit the application of, any other remedy provided by law, at equity or otherwise.
- Entire Agreement. This Agreement (including the information which is incorporated into this Agreement by written reference) contains the entire agreement between the parties, and this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the subject matter of this Agreement. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such invalid or unenforceable term shall be replaced with a term consistent with the purpose and intent of this Agreement. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by the parties.
- Limitation of Liability. EXCEPT FOR DEVELOPER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 AND EXCLUDING FEES UNDER THIS AGREEMENT, DEVELOPER’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO DEVELOPER FOR THE SERVICES UNDER THIS AGREEMENT THAT ARE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST THE DEVELOPER SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS.
- Developer is an independent contractor to You and no partnership, joint venture or agency relationship exists between Developer and You. Developer shall be responsible for paying its employees, including employment related taxes and insurance.
- This Agreement shall be construed, enforced, governed by, interpreted and performed pursuant to the internal laws, and not the law of conflicts, of the State of California applicable to agreements, contracts and understandings made and to be performed in such state.
- The Parties agree to submit any dispute relating to or arising out of this Agreement to a neutral mediator, and to participate in good faith in such mediation, before resorting to arbitration.
- In the event a dispute arises in connection with this Agreement that is not resolved at the Mandatory Mediation referenced above, the Parties hereto agree to submit the matter for resolution to arbitration before the American Arbitration Association or any other mutually agreed upon arbitrator. Said arbitration shall take place in Bakersfield, California. Each Party shall be responsible for their attorneys' fees and costs for any arbitration or mediation, and the fees and costs of the arbitrator or mediator shall be paid equally by each party.
- If You have a dispute with Developer or if You wish to provide a notice under this Agreement, You will send written notice to: KABI, Inc., 5401 Business Park S, Suite 107 1/2 Bakersfield, CA 93309. Developer may give notice applicable to the Licensed Software by means of a general notice on the Developer portal for the Services, and notices specific to You by electronic mail to Your e-mail address on record in Developer's account information or by written communication sent by first class mail or pre-paid post to Your address on record in Developer's account information.
- You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity.
- Developer may audit Your use of the services. You agree to cooperate with Developer's audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations.
- This Agreement may not be altered, amended, or modified in any respect, except by a writing duly executed by all the parties.
- Time is of the essence under this Agreement.
- Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. The parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either party may cancel unperformed services upon written notice. This section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures.