1.1 "API" means WorkWave’s online application program interface and development and testing environment that enables a Developer to develop Applications.
1.2 “Application” means a web application that a Developer creates and that interoperates with the API, subject to approval of WorkWave in accordance with Section 4.9.
1.3 “Customer Data” means data on hosted environments maintained by WorkWave that is specific to a WorkWave customer.
1.4 “Developer” means a person or entity approved by WorkWave to access the API and develop Applications.
1.5 “Documentation” means any written, audio, or photographic information of any kind containing or describing any Proprietary Information or use of the API, including, without limitation, designs, text, documents, memoranda, notes, computer, electronic, or data storage records, software, business plans, product plans, proposal plans, customers and suppliers, samples, prototypes, technical specifications, technology models, drawings, manuals, presentations, or flowcharts that describe the format, organization, or content of any Proprietary Information or the API.
1.6 “Products” means WorkWave’s products and services.
1.7 “Proprietary Information” means all non-public information of WorkWave disclosed by or on behalf of WorkWave to Developer relating to WorkWave, whether by means of written or oral disclosure or otherwise, including, without limitation, technical, economic and business information, ideas, concepts, strategies, products, technology, designs, processes, know-how, trade secrets, works of authorship, copyrights, patents, trade secrets, internet domain names, and other confidential information.
WorkWave shall grant Developer access to the API and to Documentation upon Developer’s acceptance of these Terms and Conditions.
3.1 Outbound License.
3.1.1 WorkWave hereby grants to Developer a worldwide, nonexclusive, nontransferable, nonsublicensable, revocable license during the term of this Agreement to use the API to (i) create Applications, (ii) operate such Applications, and (iii) create software to integrate the API and the Applications with Developer’s systems; provided, however, that if a Developer has a trial license only, such license shall be limited to the right to use the API functionality that is made available to trial users.
3.2 Inbound Licenses.
3.2.1 Developer hereby grants to WorkWave a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to access and use any Application for purposes of WorkWave’s approval and qualification process and, to the extent requested by Developer, to provide support or assistance to Developer in the process of developing an Application (with respect to which WorkWave reserves the right to charge Developer for professional fees).
3.2.2 Developer hereby grants to WorkWave a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Products any suggestions, enhancement requests, recommendations or other feedback provided by Developer or its users, relating to the operation of the Products.
4.1 Developer shall (i) be solely responsible for its and its users’ compliance with this Agreement and access to the API, (ii) be solely responsible for the accuracy, quality, integrity and legality of its Applications, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the API and notify WorkWave promptly of any such unauthorized access or use, (iv) use the API only in accordance with the Documentation and applicable laws and government regulations, and (v) comply with all applicable laws and regulations including federal, state and local, laws, orders and regulations, as well as all export control laws and regulations that may be imposed by the U.S. Government in its use of the API.
4.2 Developer shall not (i) permit any third party to access the API other than its users approved in advance by WorkWave, (ii) upload to the API, or use the API 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, (iii) upload to the API, or use the API to store or transmit, malicious code, viruses, or malware, or to engage in phishing or other fraudulent activity, (iv) interfere with or disrupt the integrity or performance of the API contained therein or do anything that could disable, overburden or impair the proper working of the API, (v) attempt to gain unauthorized access to the API, the Customer Data or WorkWave’s systems or networks, (vi) share its account login or password with any third party, allow any third party to access its account, or do anything else that could jeopardize the security of its login account and password, or (vii) use any of WorkWave’s trademarks or any marks confusingly similar thereto except as expressly permitted by WorkWave.
4.3 Developer, if it is also a customer of any of the Products, shall not sell, resell, rent or lease any Applications but may only use its Applications internally.
4.4 Developer shall not attempt to build any of the Products and only shall develop Applications that are custom modifications or extensions of the capabilities of such Products.
4.5 Developer shall not (i) allow any third party to create derivate works based on the API, (ii) copy, frame or mirror any part or content of the API, other than copying or framing on Developer’s own intranets or otherwise for Developer’s own internal business purposes, (iii) reverse engineer the API, or (iv) access the API in order to build a competitive product or service or to copy any features, functions or graphics of the API. Without limiting the foregoing, Developer further agrees that it will not develop any commercially available product or service that competes with the WorkWave product to which Developer’s application relates for a period commencing on date of Developer’s access to the development environment (whether through trial license or paid license) until the later of five years thereafter or five years following the date on which Developer’s application ceases to be commercially available.
4.6 If Developer develops Applications that process third party payments, Developer shall transmit, store, protect and access all cardholder information in compliance with the Payment Card Industry’s Data Security Standards.
4.7 If Developer is located outside the Unites States, it consents to having its personal data transferred to and processed in the United States.
4.8 Developer’s Applications shall be subject to WorkWave’s approval and qualification process as in effect from time to time.
4.10 Developer shall ensure that customers are able to log into its Applications using the same login as customer uses for WorkWave.
5.1 WorkWave may disclose to Developer such Proprietary Information as WorkWave deems appropriate. Developer shall treat all Proprietary Information as confidential and shall not disclose any Proprietary Information in any manner whatsoever, in whole or in part, without WorkWave’s prior written consent, which may be withheld in WorkWave’s sole discretion. All Proprietary Information shall be subject to the terms of this Agreement unless (1) identified in writing by WorkWave to Developer as non-confidential, or (2) excluded from the class of Proprietary Information pursuant to Section 5.2 below. Developer shall treat the Proprietary Information with the same degree of care it uses to protect its own confidential information, but shall not treat such Proprietary Information with less than a commercially reasonable degree of care. Developer’s obligations under this Section 5 are in addition to all other obligations of confidentiality that Developer may have under general legal or equitable principles.
5.2 Information shall not be considered Proprietary Information if it is established by Developer that such information:
5.2.1 at the time of disclosure to Developer, is published, known publicly, or is otherwise in the public domain;
5.2.2 after disclosure to Developer, is published or becomes known publicly or otherwise becomes part of the public domain, through no violation of this Agreement or act or fault of Developer;
5.2.3 prior to the time of disclosure to Developer, is known to Developer, as evidenced by written records, so long as such information was not acquired directly or indirectly from WorkWave; or
5.2.3 has been or is disclosed to Developer in good faith by a third party who was not, or is not, under any obligation of confidence to WorkWave at the time such third party discloses such information to Developer.
6.1 Except for the limited rights expressly granted to Developer hereunder, WorkWave reserves all rights, title and interest in and to the API, the Proprietary Information and the Documentation, including all related intellectual property rights inherent therein (“WorkWave IP”). Developer acknowledges and agrees that (i) WorkWave is the exclusive owner (or authorized licensee) of all right, title and interest in and to the WorkWave IP, including, but not limited to, US and international patent, copyright, trademark, trade secret, and trade dress rights and any other intellectual property rights, and (ii) except as provided in Section 6.2 below, WorkWave owns and hereby retains all right, title, and interest in and to any and all improvements, modifications releases, updates, upgrades and derivative works of such WorkWave IP.
6.2 Except as provided in Section 3.2, WorkWave acknowledges and agrees that WorkWave obtains no right, title or interest from Developer in or to any of the Applications or any source code that Developer creates using the API, including any intellectual property rights subsisting therein, such Applications, source code and intellectual property rights being the property of Developer.
WORKWAVE MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE API, THE PROPRIETARY INFORMATION OR THE DOCUMENTATION, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WORKWAVE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WORKWAVE DOES NOT REPRESENT OR WARRANT THAT ANY USE OF THE API, THE PROPRIETARY INFORMATION OR THE DOCUMENTATION WILL MEET DEVELOPER’S REQUIREMENTS OR THAT DEVELOPER’S USE OF THE API, THE PROPRIETARY INFORMATION OR THE DOCUMENTATION WILL BE FREE FROM DISRUPTION, DELAY OR INTERRUPTIONS, TIMLY, SAFE, SECURE, OR FREE FROM ERROR. THE API, THE PROPRIETARY INFORMATION AND THE DOCUMENTATION ARE PROVIDED “AS IS” AND WORKWAVE DISCLAIMS ANY WARRANTY OR LIABILITY WITH REGARD TO THE ACCURACY, CURRENTNESS OR COMPLETENESS OF THE API, THE PROPRIETARY INFORMATION OR THE DOCUMENTATION. DEVELOPER ASSUMES ALL RISKS OF ITS OR ITS USERS USE OF AND ACCESS TO THE API, THE PROPRIETARY INFORMATION AND THE DOCUMENTATION. DEVELOPER USES THE API, THE PROPRIETARY INFORMATION AND THE DOCUMENTATION AT ITS OWN RISK.
8.1 Developer represents and warrants to WorkWave that (i) it has the legal power and authority to enter into this Agreement; (ii) it owns or otherwise has sufficient rights in the Applications to grant to WorkWave the rights to use the Applications granted herein; (iii) it has not falsely identified itself nor provided any false information to gain access to or use of the API, the Proprietary Information or the Documentation; and (c) all billing and contact information provided by it is true and correct.
8.2 Developer shall indemnify, defend and hold harmless WorkWave, its affiliates, and each of their officers, directors, employees, agents and shareholders from and against any and all claims, demands, suits, proceedings, liabilities, penalties, fines, judgments, settlements, costs demands and expenses, including without limitation, attorneys’ fees and legal expenses (collectively, “Claims”), incurred by, borne by or asserted against WorkWave (i) made by any third party arising out of or in any way relating to Developer’s use of the API, any party’s use of an Application developed by Developer from the API, the Proprietary Information or the Documentation, or (ii) arising out of or relating to Developer’s breach of any representation, warranty or provision of this Agreement.
8.3 Developer further shall indemnify, defend and hold harmless WorkWave, its affiliates, and each of their officers, directors, employees, agents and shareholders, from and against any Claim made or brought against WorkWave by a third party alleging that Developer’s Applications or other materials developed by it using the API, the Proprietary Information or the Documentation infringe or misappropriate the intellectual property rights of a third party or violate applicable law (to the extent such infringement, misappropriation or violation does not arise from the API, the Proprietary Information or the Documentation itself).
IN NO EVENT SHALL WORKWAVE, ITS AGENTS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA, COSTS RELATED TO DELAYS, INTERRUPTIONS, NON-DELIVERY, DEFECTS IN THE TRANSMISSION OF DATA, COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES, OR OTHER DAMAGES OF ANY KIND, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY ARISING OUT OF THE USE, OPERATION, OR ACCESS TO THE API, THE PROPRIETARY INFORMATION OR THE DOCUMENTATION, EVEN IF WORKWAVE HAS BEEN ADVISED OF THE POSSIBILITY OR PRIOR OCCURRENCE OF SUCH DAMAGES. WORKWAVE’S MAXIMUM CUMULATIVE LIABILITY FOR DIRECT, ACTUAL AND PROVABLE DAMAGES UNDER THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION) SHALL NOT EXCEED THE AMOUNT OF FEES PAID UNDER AN APPLICABLE PURCHASE ORDER AGREEMENT DURING THE PRIOR THREE (3) MONTHS PRECEDING THE CLAIM.
10.1 Term. This Agreement commences on the date Developer accepts it and continues until terminated in accordance with Section 10.2.
10.2 Termination. WorkWave may suspend the use of the API, the Proprietary Information and the Documentation and/or terminate this Agreement upon written notice if (a) Developer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (b) Developer breaches any of its obligations under this Agreement or any other agreement with WorkWave unless cured, if curable, within ten (10) days following written notice thereof to Developer. Upon any termination or expiration of this Agreement, Developer shall immediately pay all amounts due and payable to WorkWave through the effective date of termination.
10.3 Effect of Termination. Upon termination of this Agreement, Developer’s access to the API, the Proprietary Information and the Documentation shall cease.
10.4 Surviving Provisions. Sections 5.0 (Confidentiality), 6.0 (Proprietary Rights), 7.0 (Exclusion of Warranties), 8.0 (Representations, Warranties and Indemnification), 9.0 (Limitation of Liability), 11.0 (Notices, Governing Law, Venue, and Waiver of Jury Trial), and 12.0 (General Provisions) shall survive any termination of this Agreement.
11.1 Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile or email, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the address of Developer and WorkWave, as the case may be, as set forth in the Purchase Order Agreement or otherwise provided in writing by such party to the other party, in each case, to the attention of the President or equivalent officer.
11.2 Governing Law. This Agreement shall be construed and interpreted in accordance with the laws of the State of New Jersey, without regard to its conflict of laws principles.
11.3 Venue; Waiver of Jury Trial. Each party hereto agrees that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in Monmouth County, State of New Jersey. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. The prevailing party in any action to enforce this Agreement shall be entitled to recover its reasonable attorney’s fees and costs in connection with such action.
12.1 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the API, the Proprietary Information and the Documentation.
12.2 Prohibited Persons. No person or entity located in a country embargoed by the United States, or on the U.S. Treasury Department’s list of Specially Designated Nationals, shall be eligible to be a party to this Agreement.
12.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.5 Waiver and Cumulative Remedies. Any waiver of the provisions of the Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.6 Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of this Agreement shall remain enforceable.
12.7 Assignment. Developer may not assign this Agreement, by operation of law or otherwise, without the prior express written consent of WorkWave. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.8 Entire Agreement. This Agreement and related Purchase Order Agreement, if any (and any addenda or amendments hereto): (i) represents the entire agreement between the parties relating to the subject matter of this Agreement, (ii) supersedes all prior agreements, representations and warranties relating to the subject matter of this Agreement, and (iii) may be amended, canceled or rescinded by WorkWave upon notice to Developer. In the event of any conflict between the terms of the Purchase Order Agreement, if any, the Agreement and any signed supplemental attachments, the following order of precedence shall apply: Purchase Order Agreement, signed supplemental attachments, this Agreement.
Revision Date: 11/22/16