Date last modified: August 4, 2009
1. Description of the WorkingPoint Application.
WorkingPoint provides its web-based business management and bookkeeping application (the “WorkingPoint Application”) as a service, through its website found at www.workingpoint.com. We may update, improve, or extend the WorkingPoint Application from time to time, and it may include online training or e-learning modules, user manuals, guides or other written informational material, which we also make available to you from time to time through our website. The term “we” means WorkingPoint, Inc., which owns and provides the WorkingPoint Application.
3. WorkingPoint Accounts and Payments for Services.
3.1 Establishing a WorkingPoint Account. To create an account, you will select a unique username and password that will be used to access the WorkingPoint Application. Your username and password must be approved by WorkingPoint, and we may refuse to approve a username or password at our sole discretion. In addition you will select an Account plan which establishes the monthly fee, if any, and the set of WorkingPoint Application services available to you.
3.2 Additional Authorized Users. You may create additional usernames and passwords for the additional users you authorize to access your WorkingPoint Account (each, an “Authorized User”), subject to the fees described below, by selecting “Manage Users” on the Settings page of the WorkingPoint Application. You may create as many additional Authorized Users of your account as your Account allows, however WorkingPoint must approve each username and password, and we reserve the right to reject a requested username or password for any reason. All Authorized Users must be 18 years old or older. Account owners also may select additional services we offer from time to time for additional fees (the WorkingPoint “Premium Services”), as described on the Pricing and Signup page at www.WorkingPoint.com.
3.3 Account Payments. When you create an Account WorkingPoint will assess a fee for its use. Fees are billed on a monthly cycle. We will bill you in advance each month, beginning on the date you create the Account, for the subsequent month-long period. No additional usernames or other Premium Services will be authorized or accessible until valid credit card information has been submitted by the account owner. All invoices are due and payable within 30 days of receipt. We may change the fees charged for additional Authorized Users, or for any of our Premium Services, by posting the new fees on the Premium Services page. Any such changes will be applicable to your account as of the next invoice date, in connection with the month-long period following such invoice date.
4. Access to the WorkingPoint Application.
4.1 Access to WorkingPoint Application through Designated URL. We will make the WorkingPoint Application accessible from a URL you have selected through our signup page, in the form of https://specialwordorphrase.workingpoint.com (the “Application URL”). Your selection of an Application URL is subject to our review and acceptance, and we reserve the right to reject a requested Application URL for any reason, including but not limited to the reason that such requested URL has already been selected or is too similar to an Application URL already selected by another WorkingPoint user. You agree not to access or attempt to access the WorkingPoint Application by any means other than through the Application URL.
4.2 Interruptions of Service. The WorkingPoint Application may be unavailable when we may make periodic upgrades or perform scheduled maintenance. We will use reasonable efforts to alert Authorized Users to scheduled upgrade or maintenance interruptions, but we make no warranties or guarantees of continuous or uninterrupted service.
4.3 Control of Access. You agree to keep confidential and not disclose to any third parties any usernames, passwords and account numbers associated with the WorkingPoint Application. You shall promptly notify us if you learn of a security breach related to your account, or if a username or password associated with your account is compromised in any way.
4.4 No Interference. You will not attempt to gain access to any portion of our systems or networks in any way that is not necessary for you to use the WorkingPoint Application. Thus, by way of example but without limitation:
(a) You may not access, attempt to access, or use the account or data of any WorkingPoint account (or any portion of that account or data) if you are not an Authorized User with respect to that account.
(b) You may not access or use the WorkingPoint Application from any unauthorized software or network, or attempt to modify or reroute the WorkingPoint Application or combine it with any other software, product, service, or system.
(c) You may not provide any of WorkingPoint’ competitors with access of any kind to the WorkingPoint Application.
(d) You may not copy, modify, distribute, or publicly display any portion of the WorkingPoint Application or its underlying software.
(e) You may not license, rent, lease, sell, transfer, assign, distribute, display, host, outsource, or otherwise commercially exploit or make available the WorkingPoint Application, including on a time-share, service-bureau, or similar basis, to any third party other than an Authorized User.
(f) You may not create Internet links to the WorkingPoint Application which include log-in information (including but not limited to usernames, passwords, and secure cookies), or “mirror” or “frame” any part of the WorkingPoint Application without our consent.
(g) You may not make any efforts to reverse engineer or reverse compile the WorkingPoint Application or underlying software or otherwise attempt to derive any source code, algorithms, program structure, or other trade-secret information therefrom, or allow any third party to do so, except to the extent such a restriction is expressly prohibited under applicable local law.
(h) You may not use any robot, spider, scraper, deep link or similar automated data gathering algorithm, tools, methodology or system to access, copy, monitor, the WorkingPoint Application or the WorkingPoint website without our express written consent.
(i) You may not use any engine, software, tool, mechanism, algorithm, agent or device, including but not limited to robots, spiders, intelligent agents, to search or access the WorkingPoint.com website except for a generally available third-party web browser application such as Internet Explorer, Firefox and Safari.
(j) You may not post or transmit to any WorkingPoint.com website any files containing viruses, worms, or other contaminating or destructive elements or otherwise seek to interfere with the operation of the WorkingPoint Application.
5. Permitted Use and Restrictions on Use.
5.1 Permitted Use. You and all your Authorized Users may use the WorkingPoint Application only for the purpose of sales, customer management, internal recordkeeping, reporting and management activities related to your own business, in accordance with all the terms and conditions of this Agreement. You agree that each of your Authorized Users similarly will abide by all restrictions on use set forth in this Section 5 and all other terms and conditions of this Agreement. You may begin using the WorkingPoint Application as soon as we have approved the username, password and Application URL you have selected and you and your Authorized Users may continue using it as long as the WorkingPoint Application may be made available to Authorized Users, subject to the restrictions on use set and all additional terms and conditions of this Agreement.
5.2 No Wrongful Use. You agree to use the WorkingPoint Application only for authorized, legal and ethical purposes, consistent with all applicable laws, regulations, and the rights of others, and only for the permitted use described above. You may not use the WorkingPoint Application in any manner that harms, or is likely to harm, WorkingPoint, Inc., or any of our subscribers, suppliers, affiliates, resellers, or other business partners. Without limiting the foregoing, you are specifically prohibited from using the WorkingPoint Application:
(a) To damage, disable, overburden or impair our service (or the networks connected to our service) or to interfere with anyone’s authorized use of the WorkingPoint Application;
(b) To engage in or further any fraudulent, deceptive, or otherwise unlawful practices, including but not limited to tax evasion, money laundering or the conduct of any business for which you have not obtained all necessary licenses, permits and other approvals;
(c) To engage in any activities that violate or infringe upon the rights of any third party (including but not limited to intellectual property rights, publicity rights and privacy rights);
(d) To promote or support violent or threatening actions; illegal or harmful activities, substances, goods or services; or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age;
(e) To transmit any bulk unsolicited commercial communications;
(f) To engage in communications with any obscene, offensive, defamatory, slanderous, libelous or hateful material or themes.
(g) In circumstances where system unavailability, errors, or other anomalies could result in property damage, bodily injury or death.
6. Disclaimer of Warranties; Limitation of Liabilities.
6.1 Disclaimer of Warranties. THE WORKINGPOINT APPLICATION IS PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WORKINGPOINT EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WORKINGPOINT EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE WORKINGPOINT APPLICATION WILL BE FREE FROM ERRORS, DELAYS OR INTERRUPTIONS, THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE WORKINGPOINT APPLICATION WILL MEET YOUR REQUIREMENTS. WE MAY UPDATE, IMPROVE, OR OTHERWISE MODIFY THE WORKINGPOINT APPLICATION (OR ANY OF ITS INDIVIDUAL FEATURES OR FUNCTIONALITIES) AT ANY TIME AS WE SEE FIT IN OUR SOLE DISCRETION. WORKINGPOINT IS NOT RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACT OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE, OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL WHATSOEVER
6.2 Disclaimer of Warranties or Representation Regarding Legal or Accounting Compliance and Similar Matters. WORKINGPOINT AND ITS SUPPLIERS ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICES. IF LEGAL OR ACCOUNTING ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, YOU SHOULD SEEK THE SERVICES OF A COMPETENT PROFESSIONAL. WE EXPRESSLY DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE WORKINGPOINT APPLICATION WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS OR WILL OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LOCAL, STATE, FEDERAL, NATIONAL OR INTERNATIONAL LAWS OR REGULATIONS (COLLECTIVELY, “APPLICABLE LAWS”). YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE WORKINGPOINT APPLICATION IS IN ACCORDANCE WITH APPLICABLE LAWS. IT IS YOUR RESPONSIBILITY TO BE AND REMAIN INFORMED REGARDING ALL APPLICABLE LAWS AND ACCOUNTING AND OTHER PRACTICES THAT AFFECT YOUR BUSINESS.
6.3 Disclaimer of Warranty of Continuous Operation. You acknowledge that the WorkingPoint Application may be inaccessible, unavailable or inoperable from time to time for any reason whatsoever, including but not limited to: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that WorkingPoint may undertake from time to time; or (iii) causes beyond the control of WorkingPoint or that are not reasonably foreseeable by WorkingPoint, including without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation or inaccessibility of websites or interfaces, network congestion, or other failures. You further acknowledge and agree that (i) We have no control over the availability of the WorkingPoint Application on a continuous or uninterrupted basis; (ii) We are not responsible for the functionality of any third-party website, interface, or link; (iii) The terms of this Agreement are subject to the limitations of our hardware, software and bandwidth; and (iv) Our failure to make the WorkingPoint Application available because of technical difficulties or for any reason out of our control does not amount to a failure to meet the obligations or result in a breach by WorkingPoint of this Agreement, and you expressly waive all right to dispute such failure.
6.4 No Responsibility for User Communications. We have no obligation to monitor or police communications or data transmitted through the WorkingPoint Application and we will not be responsible for the content of any such communications or transmissions. You are responsible for the content of any communications and data that you transmit, upload or post through the WorkingPoint Application.
6.5 Limitation on Disclaimer of Warranties. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU
6.6 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL WORKINGPOINT BE LIABLE TO YOU FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR LOSSES, COSTS OR EXPENSES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INTERRUPTION OF BUSINESS (EVEN IF WORKINGPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED HEREIN. IN NO EVENT SHALL THE TOTAL OBLIGATIONS OR LIABILITY OF WORKINGPOINT HEREUNDER EXCEED $500. REGARDLESS OF ANY LAW TO THE CONTRARY, NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST WORKINGPOINT MORE THAN ONE YEAR AFTER THE DATE UPON WHICH THE CLAIM AROSE.
7. Additional Authorized User Responsibilities.
7.1 Internet Connectivity. In order to use the WorkingPoint Application you will need Internet connectivity and a web browser. The WorkingPoint Application currently is configured for use on either the Internet Explorer, Firefox or Safari web browsers. You will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the WorkingPoint Application, including, without limitation, any and all costs, fees, expenses and taxes of any kind relating to the foregoing.
7.2 Accuracy of Registration Data, Cooperation, Assistance. You understand that our ability to provide the WorkingPoint Application depends in part on the information and cooperation that we receive from you. Accordingly, you agree promptly to update Registration Data as necessary to keep it accurate, current and complete at all times. In addition, you agree to provide us with such information and cooperation as we may reasonably require in performing our duties under this Agreement.
7.3 Username and Password Control; Notification. Our ability to provide the WorkingPoint Application to you depends on the integrity and your proper use of your account. Accordingly, you agree that: (i) you will not allow access to or use of the WorkingPoint Application (or any portion thereof) by anyone other than Authorized Users or for any purpose prohibited under this Agreement; (ii) you will ensure that all Authorized Users comply with the terms and conditions of this Agreement; and (iii) you will be responsible for any violation of this Agreement by any Authorized User, and for any unauthorized use of the usernames, passwords, or other security credentials associated with your account. You further agree to notify us promptly if you become aware of any loss or theft or unauthorized use of any of your passwords, usernames, and/or account number, or of any other suspected or alleged violation of this Agreement, and you will cooperate with us in any investigation or enforcement efforts. In addition, you agree to maintain current and accurate information regarding the identity of each Authorized User (and their corresponding username and password), and you agree to make that information available to us upon request for purposes of enabling us to provide the WorkingPoint Application and to enforce the terms of this Agreement. Without limiting any of our other rights and remedies, we may suspend or terminate any Authorized User’s access to the WorkingPoint Application upon notice to you in the event we determine that the Authorized User has violated the terms of this Agreement. We will communicate with you by email to the email address you provide. It is your responsibility to update or modify that email address as may be needed so that communications may be sent to you.
8. Ownership Rights.
8.1 Your User Data. When you use the WorkingPoint Application, you will be providing us with information, accounts, data, and other information and materials pertaining to your business (referred to here as your “User Data”). We acknowledge that your User Data belongs to you. When you submit any User Data to WorkingPoint, you represent that you have all necessary rights in and to that User Data and you hereby grant us a license to use your User Data, solely for the purpose of making the WorkingPoint Application available to you and your Authorized Users.
8.2 WorkingPoint Ownership and Intellectual Property Rights.
(a) The WorkingPoint Application, the software and other resources used to provide the WorkingPoint Application (and all copies of such software or other resources), and all associated intellectual property rights belong exclusively to WorkingPoint, Inc. and its licensors (the “WorkingPoint Property”). Nothing in this Agreement gives you any rights with respect to the WorkingPoint Property except for the access and usage rights expressly granted above.
(b) Except as permitted by this Agreement, neither the WorkingPoint Property nor any materials, assistance, instructions, or information that we provide in relation to any WorkingPoint Property (whether provided verbally, in writing , electronically or otherwise), may be copied, reproduced, modified, distributed, republished, displayed, posted, or transmitted in any form or by any means, in whole or in part, nor may you make any efforts to derive any source code, algorithms, program structure, or other trade-secret information therefrom, or allow any third party to do so, except to the extent such a restriction is expressly prohibited under applicable law.
(c) Nothing in this Agreement limits any rights that we may have under any trade secret, copyright, patent or other laws. Without limiting the foregoing, we will have the right to specific performance with respect to your obligations under this Section 7.
9. License to Use Feedback-related Content.
We may provide you with a mechanism to provide feedback, suggestions, and ideas about our products and services (“Feedback”). You agree that we may, in our sole discretion, use the Feedback you provide us in any way, including in future modifications of the WorkingPoint Application and in any multimedia works and/or advertising and promotional materials relating thereto. When you submit any Feedback to WorkingPoint you may not post or transmit any message that is defamatory or libelous, or which discloses private or confidential information of any third party. You may not post or transmit any message or information that is obscene, pornographic, harassing, hateful, threatening, abusive, racially or ethnically offensive, or that encourages conduct that would be a criminal offense or other confidential or proprietary information of third parties that you do not have authorization to post or transmit. You hereby grant us a perpetual worldwide fully transferable non-revocable royalty-free license to use, reproduce, modify, create derivate works from, distribute, display and commercialize any materials, information and ideas you provide to us in the Feedback. We agree not to disclose your identity as the source of the Feedback other than to our employees, consultants, and advisors who are bound by confidentiality obligations, unless we have your permission to disclose it.
10. Privacy and Security.
Please review the WorkingPoint Privacy and Security Policy, which can be found at http://www.workingpoint.com/privacy-security/privacy-policy/ and which is incorporated into this Agreement by this reference. We will respect the privacy and confidentiality of your User Data, as described in our Privacy and Security Policy. We also understand the importance of protecting the security of your User Data and agree to the practices set forth in the Privacy and Security Policy regarding data security.
You will defend, indemnify and hold harmless WorkingPoint, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, arising out of or in connection with (a) any breach by you of this Agreement or (b) any third-party claim that (i) a third party has suffered injury, damage or loss resulting from your or an Authorized User’s use of the WorkingPoint Application; or (ii) you or any Authorized User have used the WorkingPoint Application (or have allowed any other person to use the WorkingPoint Application) in a manner that violates any term or condition of this Agreement. We will provide you with prompt written notice of any such claim, and we will cooperate with you and provide you with all reasonably available information and assistance, at your expense, in the defense and settlement of such claim.
12.1 Termination by You. You agree to be bound by these terms and conditions until you close your account with WorkingPoint or until we terminate your account. You may cancel your account at any time, by following the instructions found at Settings and then Manage Account after you sign in to the WorkingPoint Application. Once your WorkingPoint account has been canceled, we will delete all of your User Data unless other arrangements have been made for storing the User Data for you, as described under “terminating your account”.
12.2 Downgrading your account. You may change you Account plan at any time by following the instructions found at Settings and then Manage Account after you sign into the WorkingPoint Application. Changes to billing will be reflected as of the next complete billing cycle; we will not prorate Premium Services for partial monthly periods. We may downgrade your account to a basic level account, and we may terminate all Premium Services and additional Authorized User usernames and passwords associated with your account, if any invoice remains unpaid for more than 30 days.
12.3 Termination by WorkingPoint. We may terminate your account at any time without notice if: (a) you have breached any provision of this Agreement, except that breach resulting simply from nonpayment will result in termination of Premium Services and downgrading of your account to a basic level account, as described above; or, (b) if we believe in our sole discretion that we are required by law to terminate your account. We may terminate your account at any time in our own discretion on 30 days’ written notice to you.
14.1 Governing Law, Jurisdiction and Venue. This Agreement will be construed in accordance with and governed by the laws of the State of California, without regard to its choice of law or conflicts of law provisions. The exclusive forum for any actions related to this Agreement will be in the state courts, and, to the extent that federal courts have exclusive jurisdiction, in the federal courts, in the City and County of San Francisco, California, except that, if WorkingPoint is seeking injunctive relief with respect to preventing imminent harm WorkingPoint may do so in any court with jurisdiction over the parties. The parties agree to such venue and jurisdiction.
14.2 Entire Agreement; Modification. This Agreement contains the entire understanding and agreement of the parties hereto and supersedes any agreements, either oral or written. WorkingPoint shall have the right to change, modify or amend any or all of the terms and conditions contained in this Agreement, in whole or in part, at any time, on written notice to of such changes or modification, which notice may be provided by posting the modifications to the WorkingPoint website and sending you an email alerting you that there has been a change.
14.3 Notice. All notices, demands and other communications provided for or permitted under this Agreement shall be made by email to WorkingPoint, and by email to you at the email address you designated when you created your WorkingPoint account or at such other email address as you may designate by subsequent email notice to us.
14.4 Assignment. You may not assign any rights or obligations under this Agreement without the prior written consent of WorkingPoint. Any assignment, transfer or attempted assignment or transfer in violation of this Section shall be void and of no force and effect. WorkingPoint and any of its subsequent assignees or successors may assign this Agreement, in whole or in part, or any of its rights or delegate any of its duties under this Agreement, to any party.
14.5 Force Majeure. Neither party shall be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, failure of Internet service providers, default due to Internet disruption (including without limitation denial of service attacks), riots, insurrection, acts of terrorism, war (or similar), fires, flood, earthquakes, explosions, and other acts of God.