Version 9 Beta User Agreement
PROGRAM WORKS BETA USER AGREEMENT
Last Modified: May 12, 2021
- Use of Beta Services
Beta User is being granted rights under this Agreement for the purpose of testing and providing input and other Feedback (defined below) to Program Works regarding one or more of Program Works’ Beta Services. This Agreement covers all Beta Services made available to Beta User by Program Works, including, without limitation, any Beta Services specifically identified by Program Works as being in “Beta” or any similar stage of development but also any other services made available to Beta User. For Subscribers (defined below) any services that Subscriber is currently subscribed to shall be excluded from the definition of Beta Services. Program Works retains sole and absolute discretion as to what, if any, Beta Services will be made available to Beta User during the Term. While Beta User is not required to utilize or enable any Beta Services, if Beta User elects to do so, then Beta User’s use of and access to any such Beta Services shall be subject to the terms of this Agreement.
Program Works retains the sole discretion in determining whether a Beta User is eligible to use the Beta Services. Some Beta Users of the Beta Services may be current subscribers (“Subscribers”) to other Program Works offered services. Subscribers must continue to keep their current subscription paid, up to date, and continue to comply with the terms (“Terms”) of their subscription (found at: workschedule.net/terms) as an ongoing condition to using the Beta Services. Subscribers may not cancel their current subscription and sign up for a free Beta User account and Program Works reserves the right to reject any Beta Users at its discretion. Where any Terms directly conflict with this Agreement, this Agreement shall control and supersede.
- License and Access
For the term of the Agreement, Program Works grants to Beta User a limited, non-transferable, non-exclusive, revocable right to access and use the Beta Service(s) in connection with an Existing Account to test its functionality and provide Feedback to Program Works. Program Works hosts and retains physical control over the Beta Service(s) and only makes the Beta Service(s) available for access and use by Beta User over the Internet through a Web-browser or mobile device. Nothing in this Agreement obligates Program Works to deliver or make available any copies of computer programs or code from the Beta Service(s) to Beta User, whether in object code or source code form. Program Works reserves the right, in its sole discretion, to revoke access and use of the Beta Services at any time. Further, Program Works reserves the right to enter or use Beta User’s account for the purposes of (i) monitoring or measuring use of the Beta Service(s); (ii) validating certain features or functionality of the Beta Service(s); and (iii) providing services or support necessary to maintain the Beta Service(s).
- Use Restrictions
Beta User may not rent, lease, distribute, or resell the Beta Service(s), or use the Beta Service(s) as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Beta Service(s). Program Works reserves the right to limit the functionality or any usage of the Beta Services at its discretion for any of its Beta Users. Program Works reserves the right to delete, remove, modify, change, increase or decrease any usage or functionality found within the Beta Services, at its discretion. For the avoidance of doubt any Subscribers using the Beta Services shall not be able to use the Beta Services in excess of any limits that have been placed on Subscriber’s use of the other Program Works services. Nothing in this Agreement obligates Program Works to make available the Beta Services to any Beta Users.
Upon reasonable request by Program Works, Beta User agrees to provide suggestions, enhancement requests, and recommendations (individually and collectively, “Feedback”) regarding the Beta Service(s). Feedback shall include informing Program Works about the performance, ease of use, features that may be missing, and any bugs encountered during the use of the Beta Service(s). Program Works may contact Beta User and Beta User agrees to make available a reasonable amount of time to discuss the Beta Service(s) with Program Works if so requested. Program Works may without restriction or fee use, modify and incorporate this Feedback into the Beta Service(s) and other Program Works services without any restriction and without any payment. Beta User agrees that all right, title, and interest in any Feedback provided is owned solely by Program Works.
- Intellectual Property
The parties acknowledge that this Agreement does not transfer any right, title or interest in any intellectual property right to the other. Program Works maintains all rights, title and interest in and to all its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively “Intellectual Property Rights”). The limited rights granted to Beta User to access and use the Beta Service(s) under this Agreement do not convey any additional rights in the Beta Service(s), or in or to any Intellectual Property Rights associated therewith. Subject only to the limited rights to access and use the Beta Service(s) as expressly provided herein, all rights, title and interest in and to the Beta Service(s) and all hardware, software and other components of or used to provide the Beta Service(s), including all related Intellectual Property Rights, will remain with and belong exclusively to Program Works.
- Term of Agreement and Renewal
This Agreement shall commence upon the execution of this Agreement and shall continue until terminated by either party.
- Termination and Expiration
Either party may terminate this Agreement at any time, for any or no reason, and at either party’s convenience by providing written notice to the other. Upon termination of this Agreement, Beta User shall discontinue using the Beta Service(s), and Program Works may withhold, remove or discard any content, data, Beta User Data, or other information that Beta User or its Authorized Users (defined below) submit to Program Works’s Beta Service(s). During the term of this Agreement or following the termination or expiration of this Agreement, Program Works is not obligated to store, maintain or provide a copy of any content, data or other information that Beta User has provided or uploaded to the Beta Service by Beta User or its Authorized users. Upon expiration of this Agreement Beta User may be required to enter into a separate agreement if it desires to continue using any Beta Services or any other services offered by Program Works. Beta User’s obligations under this Agreement shall terminate upon termination of this Agreement; provided that the foregoing shall not limit Program Works’s rights pursuant to Section 6 as related to any Feedback provided before or after such termination. Sections 2, 3, 5, 6, and 11 to 20, and all obligations thereunder or other obligations that would be reasonably deemed to survive termination, shall survive any termination of this Agreement.
- Authorized Users
The Beta Services may allow the Beta User to add additional users (“Authorized User(s)”), you will not, and will not permit your Authorized Users to, share Beta Service access rights with any other individual. Beta User will ensure that its Authorized Users comply with this Agreement and any additional agreements are required by Program Works. In the event an Authorized User violates this Agreement or any other agreement, Program Works may suspend and / or terminate Beta User’s access to the Beta Service(s).
- Suspension of Services
Program Works may suspend or discontinue offering any Beta Service at its discretion and has no obligation to make any Beta Services available to Beta User.
- Beta User Data
Beta User owns the Beta User Data (defined below) submitted or created using the Beta Services. Notwithstanding Beta User’s ownership of its Beta User Data, Beta User grants to Program Works an unlimited, irrevocable, fully paid, royalty free license to the Beta User Data for the purposes of providing the services contemplated under this Agreement. Beta User represents and warrants it has all title, right, and interest in the Beta User Data and that all Beta User Data is compliant with all laws and regulations of Beta User’s jurisdiction. During Beta User’s use of the Beta Services, Beta User shall not upload any Beta User Data that is considered “protected health information” as defined under the Health Insurance Portability and Accountability Act or any Beta User Data that would be considered “personal data” for persons that are under the jurisdiction of Regulation (EU) 2016/679 (General Data Protection Regulation). Additionally, Program Works shall have the right to utilize such Beta User Data for the purpose of analyzing and benchmarking. As the Beta Services are in “beta” Program Works makes no representations or warranties regarding the accuracy, security, fidelity, or completeness related to any Beta User Data stored or submitted to the Beta Services. Beta User uses the Beta Services at its sole risk and releases Program Works from any liability related to the Beta Services or the storage of any Beta User Data within the Beta Services and understands that any Beta User Data submitted may potentially become lost, incomplete, inaccessible, or destroyed.
- Data Migration
Program Works may offer data migration for Subscribers at its discretion to the Beta Services, but such data migration shall be offered as is. Upon termination of the this Agreement, Program Works shall have no obligation to port or otherwise assist Beta User in retrieving or migrating any of its Beta User Data, unless expressly agreed upon by Program Works. For the purposes of this Agreement, “Beta User Data” means the data or information that Client will input, submit, or process using the Beta Services.
- Confidential Information
Beta User acknowledges and agrees that participation in the Beta testing under this Agreement will result in Program Works disclosing certain confidential, proprietary and/or trade secret information related to the Beta Services and/or Program Works (the “Confidential Information”). Such Confidential Information includes, without limitation, the features, functionality and existence of the Beta Service(s), and any know how, trade secrets, computer programs, source code, flowcharts, diagrams, manuals, schematics, development tools, specifications, design documents, marketing information, financial information, business plans or reports made available to Beta User. Beta User agrees that it will not, without the express prior written consent of Program Works, disclose any Confidential Information or any part thereof to any third party, except to the extent that such Confidential Information (a) is or becomes generally available to the public through any means other than as a result of any act or omission by Beta User; (b) is rightfully received by Beta User from a third party that is not subject to any obligation of confidentiality with respect thereto and without limitation as to its use; or (c) is independently developed by Beta User without any reliance on any Confidential Information. At the termination of this Agreement or at any time by request of Program Works, Beta User will return all Confidential Information in its possession to Program Works and further agrees that it will not duplicate, translate, modify, copy, print, disassemble, decompile or otherwise tamper with the Beta Service(s) or any Confidential Information.
- Third Party Tool Integrations
If applicable, one or more Beta Services may integrate with third party services. Beta User hereby consents to the sharing of the information in the Beta Services with these third party services and certifies that it has any and all required consents for doing so. Program Works does not warrant the functionality of any third party services.
- Disclaimer of Warranties
THE BETA SERVICE(S) ARE PROVIDED “AS IS”. PROGRAM WORKS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE BETA SERVICE(S), INCLUDING ANY REPRESENTATION THAT THE BETA SERVICES THEREUNDER WILL BE UNINTERRUPTED, VIRUS FREE, ABSENT OF ANY DATA SECURITY ISSUES, OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, PROGRAM WORKS DISCLAIMS ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RESPECT OF THE BETA SERVICE(S). FOR THE AVOIDANCE OF DOUBT, ALL BETA SERVICE(S) ARE PRELEASE, ARE EXPECTED TO CONTAIN DEFECTS WHICH MAY BE MATERIAL, AND ARE NOT EXPECTED TO OPERATE AT THE LEVEL OF PERFORMANCE OR COMPATIBILITY OF A FINAL, GENERALLY AVAILABLE SERVICE OFFERING. BETA SERVICE(S) MAY NOT OPERATE ACCURATELY AND MAY BE SUBSTANTIALLY MODIFIED PRIOR TO PUBLIC AVAILABILITY OR WITHDRAWN AT ANY TIME. ACCORDINGLY, ACCESS TO AND USE OF THE BETA SERVICE(S) IS ENTIRELY AT BETA USER’S OWN RISK. IN NO EVENT SHALL PROGRAM WORKS BE LIABLE FOR ANY DAMAGE WHATSOEVER ARISING OUT OF THE USE OF OR INABILITY TO USE THE BETA SERVICE(S), EVEN IF PROGRAM WORKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF ANY BETA SERVICE. WHERE A COMPLETE LIABILITY CANNOT BE DISCLAIMED OR IS NOT PERMITTED, BETA USER AGREES THAT PROGRAM WORKS’S TOTAL LIABILITY ARISING FROM THIS AGREEMENT SHALL NOT EXCEED ONE THOUSAND US DOLLARS ($1,000).
Beta User agrees to indemnify and hold Program Works, its officers, directors and employees harmless from any losses (including attorneys’ fees) that result from any third party claims related to Beta User’s (or its Authorized Users’) access, use or misuse of the Beta Service(s), or any act or omission by Beta User or its Authorized Users in violation of this Agreement.
- Dispute Resolution, Governing Law and Venue
This Agreement is subject to the laws in force in the state of Florida. Any dispute relating in any way to your visit to the Beta Services or this Agreement shall be submitted to confidential arbitration in Winter Springs, Florida. Arbitration under this Agreement shall be conducted pursuant to the applicable Commercial Rules (“Rules”) then prevailing at the American Arbitration Association. Arbitration shall be conducted in English by one (1) arbitrator as selected pursuant to the Rules; the arbitrator’s award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where permitted by the Rules, both parties may make any and all appearances telephonically, in written briefs, or electronically as permitted under the Rules. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Beta Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. Notwithstanding the foregoing, either party may seek equitable relief to protect its interests (including but not limited to injunctive relief), in a court of appropriate jurisdiction located within Seminole County, FL, and issues of intellectual property ownership, confidentiality, or infringement may be decided only by a court of appropriate jurisdiction and not by arbitration. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Seminole County, FL. You and Program Works agree that any proceedings to resolve or litigate any dispute whether through a court of law or arbitration shall be solely conducted on an individual basis. You agree that you will not seek to have any dispute heard as a class action, representative action, collective action, or private attorney general action. In no event may this agreement be governed by the United Nations convention on contracts for the international sale of goods.
You may opt-out of this dispute resolution provision by notifying Program Works within 30 days of the date on which you entered into this Agreement or purchased a subscription, whichever is earlier. You must do so by writing to: Program Works, Inc. 1511 E State Rd 434 Suite 2001 Winter Springs, Florida 32708 of America, attn: Arbitration Opt-Out, and you must include your name, address, account information, and a clear statement that you do not wish to resolve disputes with Program Works through arbitration. Where you opt out of arbitration, all disputes shall be heard in a court of competent jurisdiction located within Seminole County, FL.
- Compliance with Laws and Legal Advice
Beta User must comply with all laws, rule or regulations applicable to Beta User’s activities in relation to this Agreement, including export control laws of the United States which are applicable to the Beta Services and which may prohibit use of the Beta Services in certain sanctioned or embargoed countries. Program Works will not provide Beta User with any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations in the jurisdictions in which Beta User uses the Beta Service(s) (“Laws”). The parties acknowledge and agree that not all features, functions and capabilities of the Beta Service(s) may be used in all jurisdictions and Beta User recognizes that certain features, functions and capabilities may need to be configured differently or not used in certain jurisdictions in order to comply with applicable local Laws.
This Agreement does not create a partnership, agency relationship, or joint venture between the parties. Any assignment of this Agreement by Beta User in whole or in part without Program Works’s prior written consent will be null and void, except an assignment to a successor that is not a competitor of Program Works’s made in connection with a merger or sale of all or substantially all of Beta User’s assets or stock or to an affiliate. If any provision of this Agreement is unenforceable, that provision will be modified to render it enforceable to the extent possible to affect the parties’ intention and the remaining provisions will not be affected. Failure of Program Works to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved. This Agreement includes any schedules and exhibits attached hereto. Such documents encompass the entire agreement between Beta User and Program Works with respect to the subject matter hereof and supersede all prior representations, agreements and understandings, written or oral. This Agreement may only be altered, amended or modified by duly executed written instrument. All notices to be provided by Program Works to Beta User under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by Beta User; or (b) electronic mail to the electronic mail address, provided by Beta User. Beta User must give notice to Program Works in writing by Courier or US Mail to the following address: Program Works, Inc. 1511 E State Rd 434 Suite 2001 Winter Springs, Florida 32708. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above. You may not assign this Agreement without the prior written consent of Program Works. Subject to the foregoing, the Agreement shall be binding upon the parties and their respective administrators, successors and assigns.