Effective Date: February 15, 2022
By using the Service you acknowledge that You have read and understood these Terms and be bound by these Terms.
"Access Fee" means the subscription fee (excluding any taxes and duties) payable by You in accordance with your subscription plan.
"Confidential Information" includes all information exchanged between the parties to these Terms, whether in writing, electronically or orally, including the Service but does not include information which is, or becomes, publicly available other than through unauthorized disclosure by the other party.
"Data" means any data inputted by You or with Your authority into the WorkMax products or site.
"Intellectual Property Right" means any patent, trademark, service mark, copyright, moral right, right in a design, feature, function, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
"Service" means the WorkMax products or services made available to You.
"Website" or "Site" means the Internet site or any other extension site operated by WorkMax.
"WorkMax" means a service offering of Company and all current and future global subsidiaries of Company and/or WorkMax including, without limitation a future WorkMax Inc.
"Invited User" means any person or entity, other than the Subscriber, that uses the Service with the authorization of the Subscriber from time to time.
"Subscriber" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
"You" and "Your" mean any person that uses the Service, including the Subscriber, and where the context permits, an Invited User.
1. USE OF SOFTWARE
WorkMax grants You the right to access and use the Service with the particular user roles available to You according to Your subscription type. This right is non-exclusive, non-transferable, and limited by and subject to these Terms. You acknowledge and agree that, subject to any applicable written agreement between the Subscriber and the Invited Users, or any other applicable laws:
- the Subscriber determines who is an Invited User and what level of user role access to the relevant organization and Service that Invited User has;
- the Subscriber is responsible for all Invited Users' use of the Service;
- the Subscriber controls each Invited User's level of access to the relevant organization and Service at all times and can revoke or change an Invited User's access, or level of access, at any time and for any reason, in which case that person or entity will cease to be an Invited User or shall have that different level of access, as the case may be;
- if there is any dispute between a Subscriber and an Invited User regarding access to any organization or Service, the Subscriber shall decide what access or level of access to the relevant Data or Service that Invited User shall have, if any; and
- If WorkMax, in its sole discretion, determines that an Invited User's use of the Service is in violation of these Terms or any applicable law, WorkMax may suspend or eliminate said Invited User's access to the Service.
- If you wish to use the Service, you must be at least 18 years old (or the age of majority in your state, province, or country).
2. SUBSCRIPTION OBLIGATIONS, CANCELLATIONS:
- WorkMax provides two separate ways You to use the Service, including:
- MONTHLY SUBSCRIPTION PLANS: Organizations opting for monthly prepaid subscription will provide a credit card for monthly payment. The credit card will be billed prior to the Service being made available and will be subsequently charged on a monthly basis until termination of these Terms as provided in Section 9. Should a credit card be declined, You will be notified and will have 3 days to remedy the situation before the Service is suspended. Monthly plan customers can contact WorkMax to cancel their subscription in accordance with Section 9; however WorkMax will not provide any refund for any remaining prepaid period.
- ANNUAL SUBSCRIPTION PLANS: Organizations opting for an annual subscription will pay via credit card, wire or other agreed upon payment. Funds must be received prior to the Service being made available. Annual subscriptions will be auto-renewed on your annual anniversary date. As long as annual payments are received prior to annual expiration; the Service will not be interrupted. Annual plan customers can cancel their annual subscription in accordance with Section 9. WorkMax will not provide any refund for any remaining prepaid period. Customers can see their specific annual anniversary (renewal) date from within the WorkMax Control Center > Settings > Account.
- WorkMax one-time products, fees and services such as account setup fee, ConnectMax fee, training hours, other offers etc. are non-refundable under any circumstance.
- Reduction or modifying of modules and/or user licenses during the subscription: If You add modules/users You will be billed for the remaining days in the current billing cycle (pro-rated), then proceed as normal. Should You want to decrease modules and/or user licenses for the next billing cycle (monthly or annual); you will need to contact WorkMax at least 7 days PRIOR to your next billing cycle in order to decrease users. If you decrease modules/users you will be billed accordingly as per the next billing period (annual anniversary for annual plans), you will not receive a refund for the current billing period for reductions in modules or users.
3. YOUR GENERAL OBLIGATIONS
- Preferential pricing or discounts: You may from time to time be offered preferential pricing or discounts for the Service as a result of the number of users or organizations that You have added to the Service or that have been added with Your authority or as a result of Your use of the Service. Eligibility for such preferential pricing or discounts is conditional upon Your acceptance of responsibility for payment of any Access Fees in relation to all of Your organizations. Without prejudice to any other rights that WorkMax may have under these Terms or at law, WorkMax reserves the right to render invoices for the full (non-discounted) Access Fees due or suspend or terminate Your use of the Service in respect of any or all of Your organizations in the event that any invoices for those Access Fees are not paid in full by the due date for payment.
- General obligations: You must only use the Service and Website for Your own lawful, legal internal business purposes, in accordance with these Terms and any notice sent by WorkMax or condition posted on the Website. You may not subscribe or use the Service under a falsified or fraudulent subscriber, user or entity.
- As a condition of these Terms, when accessing and using the Service, You must:
- not attempt to undermine the security or integrity of, in WorkMax's sole discretion, WorkMax's computing systems or networks or, where the Services are hosted by a third party, that third party's computing systems and networks;
- not use, or misuse, the Service in any way which may damage the WorkMax brand or service, impair the functionality of the Service or site, or other systems used to deliver the Service or impair the ability of any other user to use the Service or Website;
- not attempt to gain unauthorized access to any materials other than those to which You have been given express permission to access or to the computer system on which the Service is hosted;
- not use the Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through Company; (iv) store or transmit inappropriate content, such as content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (v) store or transmit any content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (vi) abuse, harass, stalk or otherwise violate the legal rights of a third party;
- not attempt to modify, analyze the product to learn the details of its function or design in order to copy or produce a similar or improved version, adapt, reproduce, disassemble, de-compile or reverse engineer any portion of the Service except as is strictly necessary to use the Service for normal customer learning and normal customer use of the Service;
- not use the Service for research or benchmarking or any related endeavor with the intent of creating a competing or similar product;
- not sell, lend, rent, resell, lease, sublicense, or otherwise transfer any of the rights granted to you with respect to the Service to any third party;
- not remove, obscure or alter any proprietary rights notice pertaining to the Service; and
- not access or attempt to access Company’s other accounts, computer systems or networks not covered by this Agreement, through password mining or any other means.
- Usage Limitations: Use of the Service may be subject to limitations, including but not limited to data storage and bandwidth. WorkMax reserves the right to limit data storage and bandwidth usage in its sole discretion.
- Communication Conditions: As a condition of these Terms, if You use any communication tools available through the Service or site (such as any forum, chat room or message center), You agree only to use such communication tools for lawful and legitimate business purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Service, including (but not limited to): offers of goods or services for sale, unsolicited e-mail, files that may damage any other person's computing devices or software, content that may be offensive to any other users of the Service or the Website, or material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).When You make any communication on the Service or Site, You represent that You are permitted and have all requisite authority to make such communication. WorkMax is under no obligation to ensure that the communications from the Service or Site are legitimate, accurate, or free from error, or that they are related only to the use of the Service.
- You must ensure that all usernames and passwords required to access the Service are kept secure and confidential. You must immediately notify WorkMax in writing of any unauthorized use of Your usernames or passwords or any other breach of security and You must take all other actions that WorkMax reasonably deems necessary to maintain or enhance the security of WorkMax's computing systems and networks and Your access to the Service.
4. CONFIDENTIALITY AND PRIVACY
- Confidentiality: Unless the relevant party has the prior written consent of the other or unless required to do so by law:
- Each party will preserve the confidentiality of all Confidential Information of the other obtained in connection with these Terms or use of the Service and Site. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by these Terms.
- Each party's obligations under this clause will survive termination of these Terms.
- Upon termination of these Terms or any other applicable agreement between You and WorkMax, the receiving party shall destroy all Confidential Information of the other party. Upon request, You shall certify in writing that you have destroyed WorkMax's Confidential Information.
- The provisions shall not apply to any information which:
- is received from a third party who lawfully acquired it and who is under no obligation restricting its use or disclosure;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;
- is in the public domain through no fault or violation of these Terms of the receiving party; or
- is independently developed without access to the Confidential Information.
5. BIOMETRICS, FACE RECOGNITION, WORKMAX RECOGNITION, EMPLOYEE PRIVACY
- WorkMax TIME Recognition is a feature that is provided with the WorkMax TIME module as an option to reduce time theft and buddy-punching in labor tracking. WorkMax Recognition (the feature) is turned OFF by default. When enabled and used by You, the feature will take a photo (selfie) of employee (employee will see front facing camera in order to center the selfie/photo in the camera viewer) while the employee is clocking IN/OUT. That photo is then linked with that time stamp when sent/synced back to Control Center. The employee time stamp photo can then be compared using technology such as facial-spacial measuring and algorithms to establish percentage match likelihood. The percentage match can then be shown to You within the WorkMax Control Center in order to help You find suspect time records and that may violate your company time-theft or buddy-punching policy. The WorkMax TIME Recognition feature (when enabled) does not stop employees from clocking IN/OUT, but helps locate and show potential suspect time records. NOTE: Some local/region/state laws may require You to obtain written consent from employees to use biometrics or face recognition type features/products. Some local/region/state laws may require You to maintain and follow written policy and have protocols in place to protect the collected, stored information and some may require policies in place on retention of the information, etc. It is your responsibility as a user of the Service to abide by the applicable laws. WorkMax is not responsible for obtaining any such consent.
- WorkMax does not sell, lease or disclose time stamp photos or face recognition data it collects.
- As part of these Terms, it is your responsibility to know, follow and abide by all applicable local, state, region biometrics/recognition privacy laws and/or employee privacy laws. You shall indemnify WorkMax against: all claims, costs, damage, and loss (including reasonable attorney fees and costs) arising from negligence or breach of any applicable laws pertaining to Your use of biometrics, WorkMax or WorkMax Recognition features.
6. INTELLECTUAL PROPERTY
- General: Title to, and all Intellectual Property Rights in the Service, the Website and any documentation relating to the Service are the sole property of WorkMax (or its licensors).
- Data Access: Your access to the Data is contingent on full payment of the WorkMax subscription fee when due. You grant WorkMax a perpetual, non-exclusive, transferable, irrevocable, royalty-free license to use, copy, transmit, store, and back-up Your Data for the purposes of enabling You to access and use the Service and for any other purpose related to provision of Service.
- Backup of Data: You must maintain copies of all Data inputted into the Service and/or exported from the Service. WorkMax adheres to its best practice policies and procedures to prevent data loss, including a regular system data back-up regime, but does not make any guarantees that there will be no loss of Data. WorkMax will use reasonable efforts to recover Data lost. WorkMax expressly excludes liability for any loss of Data no matter how caused.
- Third-party applications and your Data: If You enable third-party applications or integrations for use in conjunction with the Service, You acknowledge that WorkMax may allow the providers of those third-party applications to access Your Data as required for the inter-operation of such third-party applications with the Service. WorkMax is not responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
- Received Materials: If you send us any comments, feedback, materials, or letters including, without limitation, questions, comments, suggestions, criticisms, or the like (“Received Materials”), those Received Materials may be deemed by us to be non-confidential and free of any claims of proprietary or personal rights. Company shall have no obligation of any kind with respect to such Received Materials, and Company will be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and distribute the Received Materials without limitation or restriction. Furthermore, Company is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, and marketing our Service using such information or ideas, without compensation or any other obligations to anyone, including you.
7. WARRANTIES AND ACKNOWLEDGEMENTS
- Authority: You warrant that where You have registered to use the Service on behalf of another person or legal entity, You have the authority to agree to these Terms and agree that by registering to use the Service You bind the person or entity on whose behalf You act to the performance of any and all obligations that You become subject to by virtue of these Terms, without limiting Your own personal obligations under these Terms.
- Acknowledgement: You acknowledge that:
- You are authorized to use the Service and the Website and to access the information and Data that You input into the Service or site, including any information or Data input by any person you have authorized to use the Service. You are also authorized to access the processed information that is made available to You through Your use of the Site and the Service (whether that information and Data is Your own or that of anyone else).
- WorkMax has no responsibility to any person other than You and nothing in this Agreement confers, or purports to confer, a benefit on any person other than You.
- If You use the Service or access the Site on behalf of or for the benefit of anyone other than Yourself (whether a body corporate or otherwise):
- You are responsible for ensuring that You have the right to do so;
- You are responsible for authorizing any person who is given access to information or Data, and that WorkMax has no obligation to provide any person access to such information or Data without Your authorization and may refer any requests for information to You to address; and you will indemnify WorkMax against any claims or loss relating to:
- WorkMax's refusal to provide any person access to Your information or Data in accordance with these Terms.
- WorkMax's making available information or Data to any person with Your written authorization.
- The provision of, access to, and use of, the Service is on an "as is” basis and at Your own risk. WorkMax does not warrant that the use of the Service will be uninterrupted or error free. Among other things, the operation and availability of the systems used for accessing the Service, including telephone services, computer networks and the Internet, can be unpredictable and may from time to time interfere with or prevent access to the Service. WorkMax is not in any way responsible for any such interference or prevention of Your access or use of the Service.
- It is Your sole responsibility to determine that the Service meets the needs of Your business and are suitable for the purposes for which they are used.
- No warranties: WorkMax gives no warranty about the Service. Without limiting the foregoing, WorkMax does not warrant that the Service will meet Your requirements or that it will be suitable for any particular purpose. To avoid doubt, all implied conditions or warranties are excluded in so far as is permitted by law, including (without limitation) warranties of merchantability, fitness for purpose, title and non-infringement.
- Consumer guarantees: You warrant and represent that You are acquiring the right to access and use the Service for the purposes of a legal business and that, to the maximum extent permitted by law, any statutory consumer guarantees or legislation intended to protect non-business consumers in any jurisdiction does not apply to the supply of the Service, the Website or these Terms.
8. LIMITATION OF LIABILITY
- To the maximum extent permitted by law, WorkMax excludes all liability and responsibility to You (or any other person) in contract, tort (including negligence), or otherwise, for any loss (including loss of information, Data, profits and savings) or damage resulting, directly or indirectly, from any use of, or reliance on, the Service or Website.
- If You suffer loss or damage as a result of WorkMax's negligence or failure to comply with these Terms, any claim by You against WorkMax arising from WorkMax's negligence or failure will be limited in respect of any one incident, or series of connected incidents, to the Subscription Fees paid by You in the twelve (12) months immediately preceding such claim.
- If You are not satisfied with the Service, Your sole and exclusive remedy is to terminate these Terms in accordance with "9. Termination".
- Prepaid Subscriptions: WorkMax will not provide any refund for any remaining prepaid period for a prepaid service subscription.
- No-fault termination: These Terms will continue for the period covered by the Access Fee or Service Subscription. At the end of each billing period these Terms will automatically continue for another period of the same duration as that period, provided You continue to pay the prescribed Access Fee when due, unless either party terminates these Terms by giving notice to the other party at least thirty (30) days before the end of the relevant payment period. If You terminate these Terms You shall be liable to pay all relevant Access Fees on a pro-rata basis for each day of the then current period up to and including the day of termination of these Terms.
- Breach: If You:
- breach any of these Terms for any reason including, without limitation, by non-payment of any Access or Service Fees; or
- breach any of these Terms including, without limitation to using fraudulent or falsified information; or
- You or Your business become insolvent or Your business goes into liquidation or has a manager appointed of any of its assets or if You become insolvent, or make any arrangement with Your creditors, or become subject to any similar insolvency event in any jurisdiction, WorkMax may take any or all of the following actions, at its sole discretion:
- Terminate your use of the Services and the Website;
- Suspend or terminate access to all or any Data;
- Seek damages and legal retribution due to breach of these Terms.
- For the avoidance of doubt, if payment of any invoice for Access Fees due in relation to any of Your billing contacts, billing plans or any of Your organizations is not made in full by the relevant due date, WorkMax may: suspend or terminate Your use of the Service, the authority for all or any of Your organizations to use the Service, or Your rights of access to all or any Data.
- Accrued Rights: Termination of these Terms is without prejudice to any rights and obligations of the parties accrued up to and including the date of termination. On termination of this Agreement You will remain liable for any accrued charges and amounts which become due for payment before or after termination; and immediately cease to use the Service and the Website.
10. HELP DESK
- Technical Problems: In the case of technical problems You must make all reasonable efforts to investigate and diagnose problems before contacting WorkMax. If You still need technical help, please check the support provided online by WorkMax within your WorkMax account or email WorkMax support.
- Service availability: Although WorkMax intends that the Service should be available 24 hours a day, seven days a week; it is possible that on occasions the Service or Website may be unavailable to permit for maintenance or other development activity to take place.
- Waiver: If either party waives any breach of these Terms, such waiver does not constitute a waiver of any other breach. No waiver will be effective unless made in writing.
- Delays: Neither party will be liable for any delay or failure in performance of its obligations under these Terms if the delay or failure is due to any cause outside its reasonable control. This clause does not apply to any obligation to pay money.
- No Assignment: You may not assign or transfer any rights to any other person or entity without WorkMax's prior written consent.
- Governing law and jurisdiction: Utah law govern this Agreement and You submit to the exclusive jurisdiction of the state courts of Utah County, Utah or federal court for the District of Utah for all disputes arising out of or in connection with this Agreement.
- Severability: If any part or provision of these Terms is invalid or in conflict with the law, that part or provision is replaced with a provision which, as far as possible, accomplishes the original purpose of that part or provision and the remainder of this Agreement will be binding on the parties.
- Notice: Notices to WorkMax must be sent to the support team. Notices to You will be sent to the email address which You provided when setting up Your access to the Service.
- Rights of Third Parties: Unless specifically provided for herein, a person who is not a party to these Terms has no right to benefit under or to enforce any term of these Terms.