CommunityWFM Software-as-a-Service (SaaS) Terms and Conditions

Software-as-a-Service (SaaS) Terms and Conditions

The following terms and conditions apply to all Workforce Management Software Group, Inc. (DBA CommunityWFM) customers who submit an order that is accepted by CommunityWFM for delivery of professional services and for use of our products as Software as a Service.

Definitions The following definitions (and additional definitions provided below) will apply:

1. “Activation Date” and “Target Activation Date” is defined in Section 16.
2. “Customer” means the legal entity or individual that orders the Service and Professional Services.
3. “Customer Data” means data, information or material provided or submitted by Customer or any User to CommunityWFM while utilizing the Service.
4. “Customer Representative” means the End Users designated by Customer as authorized to create User accounts, administer Customer’s use of the Service and otherwise represent Customer for the purpose of this Agreement.
5. “Order” means the duly executed order from the Customer that was accepted and countersigned by CommunityWFM.
6. “Maintenance Service” means the support services provided by CommunityWFM to maintain the Service for the Customer.
7. “Professional Services” means the services associated with on-boarding/training or consulting the Customer to utilize the Service.
8. “Service” means access to CommunityWFM Software as a Service.
9. “CommunityWFM Content” means CommunityWFM provided text, video, documentation and any and all materials associated with the Service.
10. “User” means one of Customer’s employees, representatives, consultants, contractors or agents and other persons expressly permitted by Customer in connection with Customer’s business affairs who are authorized to use the Service and have been supplied User identifications and passwords by Customer (or by CommunityWFM at the Customer’s request).

Customer Use of the Service

1. CommunityWFM grants Customer, for as long as this agreement is in effect, the rights to access and use the Service subject to the terms of this Agreement. CommunityWFM reserves the right to make changes and updates to the functionality and/or documentation of the Service from time to time, provided that CommunityWFM will give Customer at least 30 days prior written notice of any change or update that could affect Customer’s use of the Service or access to Customer Data.
2. Customer is granted during the Term to store, print, and display CommunityWFM Content and to permit Users to access it only in connection with use of the Service. No other use of CommunityWFM Content is permitted. Customer will maintain and will require its Users to maintain CommunityWFM Content as Confidential Information (as defined below) of CommunityWFM.
3. Number of Authorized Users
  
  There is no limit to the number of authorized users or sites, however no more than the number of scheduled resources specified in the Order may be scheduled with this Service agreement unless specifically amended between the parties.
4. Fees Generally
  Customer agrees to pay fees as set forth in the Pricing Schedule or as CommunityWFM and Customer otherwise agree in writing.
5. Non-Payment / Inactive Account
  
  In addition to other applicable remedies, CommunityWFM reserves the right to suspend and/or terminate Customer’s access to the Service and/or terminate this Agreement, upon five days email notice, if Customer fails to pay for the access to temporary licenses or the customer exceeds the number of agents licensed to be scheduled with the service. Customer's site may be reinstated by purchasing more licenses. Customer data in our format will be available for 90 days, upon written request following expiration of all licenses.

Appropriate Use of the Service

1. While Users may be any persons that Customer authorizes to use the Service for its business, including, but not limited to, Customer’s employees, subcontractors, consultants and contractors, Customer may not sublicense, resell, or supply the Service for use in or for the benefit of any other organization, entity, business, or enterprise without CommunityWFM’s prior written consent.
2. Customer agrees not to share license codes or with other parties and understands that license codes are customer specific.
3. Customer agrees not to submit to the Service any material that is illegal, misleading, defamatory, indecent or obscene, in poor taste, threatening, infringing of any third-party proprietary rights, invasive of personal privacy, or otherwise objectionable (collectively “Objectionable Matter”). Customer will be responsible to ensure that its Users do not submit any Objectionable Matter. In addition, CommunityWFM may, at its option, adopt rules for permitted and appropriate use and may update them from time to time on CommunityWFM web site; Customer and Customer’s Users will be bound by any such rules. CommunityWFM reserves the right to remove any Customer Data that constitutes Objectionable Matter or violates any CommunityWFM rules regarding appropriate use but is not obligated to do so. Customer and Customer’s Users will comply with all applicable laws regarding Customer Data, use of the Service and CommunityWFM Content, including laws involving private data and any applicable export controls. CommunityWFM reserves the right to terminate this Agreement for cause in case the Customer materially breaches the provisions of this Section 3.
4. CommunityWFM reserves the right to suspend or terminate immediately any Customer or User account or activity that is disrupting or causing harm to CommunityWFM’s computers, systems, or infrastructure or to other parties, or is in violation of state or federal laws regarding “spam,” including, without limitation, the CAN-SPAM Act of 2003. Any such spamming activity by Customer will be a material breach of this Agreement.

Passwords and Access

1. Customer is responsible for all activities that occur under Customer’s User accounts. Customer is responsible for maintaining the security and confidentiality of all User usernames and passwords. Customer agrees to notify CommunityWFM immediately of any unauthorized use of any Service username or password or account or any other known or suspected breach of security.

Customer Data

1. All Customer Data submitted by Customer to CommunityWFM, whether posted by Customer or by Users, will remain the sole property of Customer or such Users to the full extent provided by law.
2. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Customer Data. CommunityWFM will not use the Customer Data for any purpose other than to provide the Service to Customer and for anonymous (i.e., does not copy or include any names, telephone numbers or other information specific to Customer or Users) statistical reporting purposes. CommunityWFM may aggregate anonymous statistical data regarding use and functioning of its system by its various Users. Such aggregated statistical data will be the sole property of CommunityWFM.
3. On a monthly basis during the Term, CommunityWFM will (at Customer’s request, in writing or by email, to CommunityWFM customer support) make one backup of the then current Customer Data available to the Customer via FTP server in CommunityWFM’s standard format. Additional backup services are available at additional cost; Customer may contact CommunityWFM customer support for details.
4. CommunityWFM will use commercially reasonable security measures, to protect Customer Data against unauthorized disclosure or use. CommunityWFM’s security (Privacy) policies in effect from time to time can be accessed on CommunityWFM’s web site.

Limited License to Customer Data

1. Subject to the terms and conditions of this Agreement, Customer grants to CommunityWFM a non-exclusive license to use, copy, store, transmit and display Customer Data to the extent reasonably necessary to provide and maintain the Service.

CommunityWFM’s Ownership

1. CommunityWFM retains all rights in the Service and CommunityWFM Content. This Agreement grants no ownership rights to Customer. No license is granted to Customer except as to use of the Service as expressly stated herein. CommunityWFM name, CommunityWFMs’ logo, and the product names associated with the Service are trademarks of CommunityWFM and they may not be used without CommunityWFM’s prior written consent. CommunityWFM grants to Customer and Customer hereby accepts a limited term, non-exclusive, non-transferable, non-sublicensable right to access and use the Software and Services, during the term, solely to support Customer’s internal operations as an end user of the Software and Services.

Restrictions on Use of the Service

1. Customer may not alter, resell, or sublicense the Service or provide it as a service bureau. Customer agrees not to reverse engineer the Service or its software or other technology. Customer will not use or access the Service to: (i) build a competitive product or service, (ii) make or have made a product using similar ideas, features, functions or graphics of the Service, (iii) make derivative works based upon the Service or CommunityWFM Content or (iv) copy any features, functions or graphics of the Service or CommunityWFM Content. Customer will not “frame” or “mirror” the Service. Use, resale or exploitation of the Service and/or CommunityWFM Content except as expressly permitted in this Agreement is prohibited. CommunityWFM shall not be responsible for limitations, delays and other problems inherent in the use of the internet and electronic communications by Customer.

Privacy

1. CommunityWFM agrees to implement its privacy policies in effect from time to time, provided that in the event of a conflict between CommunityWFM’s privacy policy and this Agreement, this Agreement shall control. CommunityWFM’s privacy policies can be accessed on CommunityWFM’s web site at https://www.communitywfm.com/privacy-policy. CommunityWFM reserves the right to modify its privacy and security policies from time to time in its business judgment and as it deems required for compliance with applicable law.

Additional Warranties

1. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Customer represents and warrants that it has not falsely identified itself or provided any false information to gain access to the Service and that Customer’s billing information is correct.

Professional Services

1. Customer may retain CommunityWFM to perform professional services, training, consultation or custom services (“Professional Services”) as the parties may agree upon in writing in the form of a statement of work or other writing. All such Professional Services shall not be considered to be services that would be deemed “Works for Hire” and no right to such Services shall pass to Customer.
2. Unless otherwise agreed in writing in the Statement of Work, Professional Services are provided by CommunityWFM on a time and materials basis at CommunityWFM’s then applicable rates and subject to such deposit or advance payment as CommunityWFM may require.

Service Maintenance Obligation - For as long as this Agreement is in effect:

1. CommunityWFM will provide Customer with reasonable telephone Software support to aid in product utilization and problem identification during standard hours (9:00 AM to 5:00 PM CT) Monday through Friday in accordance with Schedule A, not including nationally recognized holidays and other days that CommunityWFM may designate at its discretion as closed or “limited support” days. CommunityWFMs’ Support Maintenance polices are attached as Schedule A.

Indemnification

1. CommunityWFM will defend, indemnify, and hold Customer (and its officers, directors, employees and agents) harmless from and against all costs, liabilities, losses, and expenses, including reasonable attorneys’ fees, (collectively, “Losses”) arising from any third-party claim, suit, action, or proceeding arising from the actual or alleged infringement of any United States copyright, patent, trademark, or misappropriation of a trade secret by the Service or CommunityWFM Content (other than that due to Customer Data). In case of such a claim, CommunityWFM may, in its discretion, procure a license that will protect Customer against such claim without cost to Customer, replace the Service with a non-infringing Service, or if it deems such remedies not practicable, CommunityWFM may terminate the Service and this Agreement without fault, provided that in case of such a termination, Customer will receive a pro-rata refund of the license fees prepaid for use of the Service not yet furnished as of the termination date. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.
2. Customer will defend, indemnify, and hold CommunityWFM (and its officers, directors, employees and agents) harmless from and against all Losses arising out of or in connection with a claim, suit, action, or proceeding by a third-party (i) alleging that the Customer Data or other data or information supplied by Customer infringes the intellectual property rights or other rights of a third-party or has caused harm to a third-party or (ii) arising out of breach of Sections 3 (Appropriate Use of the Service) or 4 (Passwords and Access) above.
3. Customer will defend, indemnify, and hold CommunityWFM (and its officers, directors, employees, and agents) harmless from any expense or cost arising from any third-party subpoena or compulsory legal order or process that seeks Customer Data and/or other Customer-related information or data, including, without limitation, prompt payment to CommunityWFM of all costs (including attorneys’ fees) incurred by CommunityWFM as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay CommunityWFM for its staff time in responding to such third-party subpoena or compulsory legal order or process at CommunityWFM’s then applicable hourly rates.
4. In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee, unless the settlement includes an admission of wrongdoing, fault or liability.

Disclaimers and Limitations

1. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY COMMUNITYWFM. THERE ARE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS STATED IN SECTION 15 BELOW, THE SERVICE AND COMMUNITYWFM CONTENT ARE PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES. COMMUNITYWFM DOES NOT WARRANT THAT USE OF THE SYSTEM WILL BE ERROR-FREE OR UNINTERRUPTED. COMMUNITYWFM IS NOT RESPONSIBLE FOR SOFTWARE INSTALLED OR USED BY CUSTOMER OR USERS OR FOR THE OPERATION OR PERFORMANCE OF THE INTERNET. COMPANY AGREES THAT IN EVENT OF A BREACH OF A WARRANTY AS PROVIDED HEREIN BY COMMUNITYWFM, COMPANY’S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR COMMUNITYWFM TO REPAIR, REPLACE, OR REFUND THE FEES ATTRIBUTABLE TO THE SOFTWARE OR SERVICES FOR THE THREE-MONTH PERIOD PRECEDING THE BREACH, AT COMMUNITYWFM’S OPTION.
2. EXCEPT FOR A BREACH OF CONFIDENTIALITY UNDER SECTION 15 (CONFIDENTIALITY) HEREIN, OR VIOLATION BY ONE PARTY OF THE OTHER’S INTELLECTUAL PROPERTY OR OTHER OWNERSHIP RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY (OR THE INDEMNIFIED PARTIES OF SUCH PARTY) FOR: (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING LOSS OF USE, LOSS OF OR DAMAGE TO RECORDS OR DATA, COST OF PROCUREMENT OR SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOST REVENUE AND/OR PROFITS SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER SUCH PARTY HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNOW OR SHOULD HAVE KNOW, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (b) DIRECT DAMAGES IN EXCESS OF THE FEES PAYABLE (IN THE CASE OF COMMUNITYWFM’S LIABILITY) OR ACTUALLY PAID IN THE THREE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE UNDER THE PURCHASE ORDER OR, IF APPLICABE, A STATEMENT OF WORK.
3. The Service may include gateways, access, links or other functionality that allows the Customer and/or End Users to access or rely on other third-party services (“Third-Party Services”) and/or third-party content and materials (“Third-Party Materials”). CommunityWFM does not supply and is not responsible for any Third-Party Services or Third-Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and/or terms of use.
4. COMMUNITYWFM MAKES NO WARRANTY AS TO THIRD-PARTY SERVICES INCLUDING BUT NOT LIMITED TO SERVERS, WORLD WIDE WEB, COMPANY INTRANET, ROUTERS AND OR NETWORKS.

Confidentiality

1. Upon termination or expiration of this Agreement, except as otherwise agreed in writing or otherwise stated in this Agreement, each party will, upon the request of the disclosing party, either: (i) return all of such Confidential Information of the disclosing party and all copies thereof in the receiving party’s possession or control to the disclosing party; or (ii) destroy all Confidential Information and all copies thereof in the receiving party’s possession or control. The receiving party will then, at the request of the disclosing party, certify in writing that no copies have been retained by the receiving party, its employees or agents.
2. In case a party receives legal process that demands or requires disclosure of the disclosing party’s Confidential Information, such party will give prompt notice to the disclosing party, if legally permissible, to enable the disclosing party to challenge such demand.

Activation, Termination and Renewal

1. CommunityWFM will use commercially reasonable efforts to make the Service available to Customer on the “Target Activation Date” of the date requested by Customer, which shall not be earlier than the dates agreed to between CommunityWFM and Customer. The “Activation Date” will be the date that CommunityWFM first makes the Service available to Customer and provides email or written notice of such availability to Customer.
2. Any breach of Customers payment obligations, or unauthorized use or disclosure of CommunityWFM Technology, Software or other Confidential Information by Company, will be deemed a material breach of this Agreement.
3. CommunityWFM, in its sole discretion, may suspend or terminate Customer’s username and password, account, or use of the Service and/or terminate this Agreement if Customer materially breaches this Agreement and such breach has not been cured within 5 business days of notice of such breach.
4. The following provisions will survive termination: all definitions, Customer’s accrued financial obligations, the license to Customer Data to the extent reasonable for CommunityWFM’s discharge of its post-termination obligations, and the following Sections and paragraphs: 1 (Definitions), 5 (Customer Data), 7 (CommunityWFM’s Ownership), 8 (Restrictions on Use of the Service), 13 (Indemnification), 14 (Disclaimers and Limitations), 15 (Confidentiality), 16.c. (Survival of Provisions), 17 (Notice), and 19 (Miscellaneous).

Notice

1. CommunityWFM may give notice by means of electronic mail to Customer’s email address on record in Customer’s account or by written communication sent by first class mail or by courier service to Customer’s address on record in Customer’s account. Such notice will be deemed to have been given upon the expiration of 36 hours after mailing (if sent by first class mail) or sending by courier or 12 hours after sending (if sent by email), or, if earlier, when received. Customer may give notice to CommunityWFM by email to: orders@communitywfm.com. A party may, by giving notice, change its applicable address, email, or other contact information.

Assignment

1. This Agreement may not be assigned by either party without the prior written approval of the other but may be assigned by either party without consent to (i) a parent or subsidiary, (ii) an acquirer of all or substantially all of CommunityWFM’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this Section will be void. This agreement may be enforced by and is binding on permitted successors and assigns.

Miscellaneous

1. Choice of Law; Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favor of or against either party and in accordance with the laws of the State of Texas and applicable US federal law. Except as provided in the arbitration clause, the state and federal courts located in the City of Dallas will have exclusive jurisdiction and venue over any dispute or controversy arising from or relating to this Agreement or its subject matter. Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”), and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement. To the extent not prohibited by applicable law that cannot be waived, the Parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with this Agreement or any of the transactions contemplated hereunder.
2. Severability. Such provision(s) will 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.
3. Independent Contractors. It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances shall any of the employees of one Party be deemed the employees of the other Party for any purpose. This Agreement shall not be construed as authority for either Party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other Party except to the extent and for the purposes expressly provided for and set forth herein.
4. No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and CommunityWFM as a result of this Agreement or use of the Service.
5. No Waiver. No provision of this Agreement shall be deemed waived and no breach shall be deemed excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent by either Party to, or waiver of, a breach by the other, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach.
6. Force Majeure. Neither Party shall be deemed to be in default of any provision of this Agreement, or for failure in performance of its obligations hereunder (excluding payment obligations), resulting from acts or events beyond the reasonable control of such Party, including acts of God, civil or military authority, acts or threats of terrorism, civil disturbance, cyber terrorism, cyber mischief, governmental regulations, policies or actions enacted or take subsequent to execution of this agreement, war, riot, strike or labor dispute (not related to either Party's workforce), fires, floods, or act of government (each a "Force Majeure Event"). Such Force Majeure Event, to the extent it prevents a Party’s performance or any other undertaking under this Agreement, will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event.
7. Entire Agreement. This Agreement, together with all Schedules attached hereto, represents the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral, that the Parties may have had with respect thereto. No statement or inducement with respect to the subject matter by either Party or by any agent or representative of either Party, which is not contained in this Agreement, shall be valid or binding between the Parties. No provision of this Agreement or a Statement of Work may be modified or amended except by a written instrument duly executed by each of the Parties. Any such modifications or amendments shall not require additional consideration to be effective.

SCHEDULE A

Service Maintenance

CommunityWFM agrees to provide, and Customer agrees to accept support services for the Service.

CommunityWFM Service Maintenance - For as long as this Agreement is in effect and current or for the period specified in an accepted order:
1. CommunityWFM will provide Customer with unlimited access to the toll free number (877) 668-6870, option 2, help desk for Software support to aid in product utilization, or “how to” questions and to assist the Customers resources with technical connectivity or IT problem identified during standard business hours (9:00 AM to 5:00 PM CST) Monday through Friday, not including nationally recognized holidays and other days that CommunityWFM may designate at its discretion as closed or “limited support” days. The Customer may also access the Customer Engagement Portal on CommunityWFM’s web site at www.communtywfm.com 24 hours, 7 days per week.
  
  CommunityWFM shall supply Customer with fixes at no charge that correct problems identified by the customer or that CommunityWFM shall diagnose as defects in currently supported versions of the Software, as such problems and corrections become known to CommunityWFM.
  
  CommunityWFM, in the course of providing support, may diagnose Software errors or problems that may be addressed procedurally or with a supplied work-around. The Customer agrees to accept these procedural or work-around fixes as a solution to the issues.
2. Corrections for difficulties or defects traceable to Customer errors or system changes will be billed at CommunityWFM’s standard time and material rates of $250/hour or at a negotiated rate for the duration of the system recovery for extended outages.
3. CommunityWFM shall supply Customer with all software upgrades to the product at no additional charge as long as the Customer maintains the Service excluding connectors, adapters and any web services applications, or gateways.
4. Items not covered under standard maintenance include:
  - ACD upgrades that require modification to an existing adapter
  - Re-installation of CommunityWFM software generated by the customer activities or hardware failure
  - Network, hardware, and customer infrastructure issues
  - Additional professional services and/or training sessions
  - On-site services
  - After hours and weekend support services
5. CommunityWFM help desk will assist in isolating or trouble shooting issues that may adversely affect Service performance.
RESPONSIBILITY - CUSTOMER understands and agrees CommunityWFM may develop but is not obligated to supply upgrades or new releases of the software, except to the extent CommunityWFM provides an upgrade or new release to its Customers generally, in which case, CommunityWFM shall provide the same to Customer at no additional charge. The Customer acknowledges that they are responsible for cooperating with CommunityWFM or implementing and installing updates and new releases of Software under CommunityWFM’s direction, and other changes to the Software that may be provided by CommunityWFM at no additional charge to Customer under the terms of this Agreement.
TERM - This Service Maintenance Agreement is in effect for as long as the Customer maintains the Service.

Software-as-a-Service (SaaS) Terms and Conditions

Software-as-a-Service (SaaS) Terms and Conditions

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