Terms of Use
Terms of Service
Last updated: 14th November, 2022
Welcome to ProcessWurks, an online Practice management platform service designed especially for Accountants, Bookkeepers and Tax Professionals.
These ProcessWurks Terms of Service (the “Terms”) constitute a binding agreement between you, an end user of the ProcessWurks services (as defined below) (each such end user, a “user”) and ProcessWurks, LLC (“ProcessWurks,” “we,” or “us”) with respect to your access to or use of the Service (as defined herein). The Service is offered subject to your acceptance, without modification, of all terms and conditions set forth herein.
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS”) CAREFULLY. BY COMPLETING THE REGISTRATION PROCESS FOR, OR OTHERWISE ACCESSING OR USING, THE APPLICATION SERVICES MADE AVAILABLE BY PROCESSWURKS IN ANY WAY, (THE “SERVICES”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PROCESSWURKS, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTER FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THE SERVICES. THE TERMS INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES. THE TERMS LIMIT THE REMEDIES THAT MAY BE AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
PLEASE NOTE: The Terms are subject to change by ProcessWurks, in its sole discretion, at any time. When changes are made, ProcessWurks will make a new copy of the Terms available within the Application and through the Services. We will also update the “Last Updated” date at the top of the published Terms within the Application. If we make any material changes, and you have registered with us to create an Account (as defined in Section 4 below), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Terms. Any changes to the Terms will be effective immediately. ProcessWurks may require you to provide consent to the updated Terms in a specified manner before further use of the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Application and/or the Services. Otherwise, your continued use of the Application and/or Services constitutes your acceptance of such change(s). ProcessWurks may refuse access to or use of the service for non-compliance with any part of this agreement. This agreement is void where prohibited by law, and any rights to access or use the service are revoked in such jurisdictions. PLEASE REGULARLY CHECK TO VIEW THE THEN-CURRENT TERMS.
THE SERVICE:
ProcessWurks operates an online service through its website with a homepage at www.ProcessWurks.com, its subdomains and/or other websites, and those associated mobile or desktop applications designated by ProcessWurks for use with such services from time to time (the “Site”), including all features, content, tools, applications, application program interfaces, widgets and other tools and services included thereon (collectively, the “Service”), which service facilitates and enables the management and administration of Accounting, Tax and other professional services. The scope of your access to the Service may be determined or otherwise limited by the terms of the applicable Subscription Plan (as defined herein) selected by Customer, which Subscription Plan will be identified and described on an order form executed by Customer and ProcessWurks and incorporating these Terms, or through such other ordering process (including via telephone, email, or online registration) as may be permitted by ProcessWurks from time to time (an “Order”). ProcessWurks may choose not to accept orders at its sole and absolute discretion. For the avoidance of doubt, all Orders accepted by ProcessWurks shall be subject to the terms and conditions of this Agreement.
USE OF THE SERVICES AND PROCESSWURKS PROPERTIES
The Application, the Software (as defined below), the Services, and the information and content available in the Application and the Services (as these terms are defined herein) (collectively, the “ProcessWurks Properties”) are protected by copyright laws throughout the world. Subject to the Terms, ProcessWurks grants you a limited license to reproduce portions of ProcessWurks Properties for the sole purpose of using the Services for your internal business purposes. Unless otherwise specified by ProcessWurks in a separate license, your right to use any ProcessWurks Properties is subject to the Terms.
ProcessWurks Application: Use of any software or templates and associated documentation other than the Application (if any) that is made available for download via the Services (“Application”) is governed by these Terms. Subject to your compliance with the Terms, ProcessWurks grants you a non-assignable, non-transferable, non-sub licensable, revocable non-exclusive license to use the Application for the sole purpose of enabling you to use the Services in the manner permitted by the Terms. For the avoidance of doubt, at no time will ProcessWurks provide you with any tangible copy of the Application. ProcessWurks shall deliver access to the Application via web application or website and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Application (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium.
Updates to the application: You understand that ProcessWurks Properties are evolving. As a result, ProcessWurks may require you to accept updates to ProcessWurks Properties. You acknowledge and agree that ProcessWurks may update ProcessWurks Properties with or without notifying you. You may need to update third-party softwares (E.g. browser versions) from time to time in order to use ProcessWurks Properties.
Certain Restrictions: The rights granted to you in the Terms are subject to the following restrictions: (i) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit (other than for your own internal use) ProcessWurks Properties or any portion of ProcessWurks Properties, (ii) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other ProcessWurks Properties (including images, text, page layout or form) of ProcessWurks; (iii) you shall not use any metatags or other “hidden text” using ProcessWurks’s name or trademarks; (iv) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of ProcessWurks Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the ProcessWurks Properties; (vi) you shall not access ProcessWurks Properties in order to build a similar or competitive website, application or service; (vii) except as expressly stated herein, no part of ProcessWurks Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (viii) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in ProcessWurks Properties. Any future release, update or other addition to ProcessWurks Properties shall be subject to the Terms. ProcessWurks, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of ProcessWurks Properties terminates the licenses granted by ProcessWurks pursuant to the Terms.
Third-Party Materials: As a part of ProcessWurks Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for ProcessWurks to monitor such materials and that you access these materials at your own risk.
Customer Responsibilities:
Customer is responsible for ensuring that the Services are compatible with Customer’s business and systems requirements and for the provision, maintenance, and use of Customer’s hardware, network, internet connectivity, and software.
Customer shall be responsible for determining the scope and level of each Authorized User’s and Client User’s access to the Service; Customer may, at any time and in its sole discretion, revoke or limit the access of any Authorized User or Client User to the Service. If, at any time, Customer ceases to classify an entity or individual as an Authorized User or Client User hereunder, all rights of such person or entity to access or use the Service, including through the Client Portal (as applicable), shall immediately cease.
Customer is responsible for the accuracy, quality, completeness, appropriateness, timeliness, integrity, legality and all other aspects of Customer Data and the means by which Customer acquired it. ProcessWurks does not have any obligation to approve, control or verify Customer Data. Customer represents and warrants that, if Customer provides a client’s information to ProcessWurks, that Customer has the legal right to do so, including any necessary authorizations or consents.
Customer is responsible for providing ProcessWurks with access to all Customer Data and Customer personnel as are reasonably required ProcessWurks to perform the Services. ProcessWurks shall not be responsible for failures or delays in performing the Services due to Customer’s failure or delay to provide access to Customer Data or personnel (such as Customer’s failure to attend meetings with ProcessWurks or complete requested forms), and any such failures or delays shall not relieve Customer of its obligation to pay fees. Customer acknowledges that Customer’s participation in the Services, as reasonably directed by ProcessWurks, is required for best results.
Customer is responsible for reviewing the Services Work Product and satisfying itself that it is complete and correct. Neither ProcessWurks nor its Affiliates will be liable for any legal, financial or Accounting errors or violation of Applicable Laws by Customer or its clients, including any made in reliance on the Services Work Product, or for billing errors and omissions by Customer.
Customer is responsible for all acts and omissions of its Authorized Users and other Representatives, and any act or omission by an Authorized User or Representative of Customer that would constitute a breach of the Agreement if done by Customer will be deemed a breach of the Agreement by Customer.
Customer represents and warrants that (vii-i) it has not falsely identified itself nor provided any false information to gain access to the Services; (vii-ii) the information provided about Customer in connection for the Services, including Customer’s billing information and Customer’s firm name, owner name, other identifying information and contact information, is correct, and that Customer will provide ProcessWurks with written notification of any changes to such information no later than 30 days after the change.
Customer shall comply with Applicable Laws and shall not use the Services, the ProcessWurks Materials or the Services Work Product to violate, or to assist any other person or entity in violating, applicable Laws.
THIRD PARTY APPLICATIONS
The Service may contain links to or otherwise allow you to access third party applications and services (“Third Party Services”) that are not owned or controlled by ProcessWurks.
We currently use and are integrated with the following third party services – a) Outlook, b) Gmail, c) Facebook Ads, d) Google Ads, e) SendinBlue, f) Twilio, g) mailgun and h) Stripe
When you access third party websites or Third Party Services, you do so at your own risk. If you enable Third Party Services for use in conjunction with the Service, you acknowledge that ProcessWurks may allow the providers of those Third Party Services to access Client Content as required for the interoperation of such Third Party Services with the Service. ProcessWurks is not responsible for any disclosure, loss, alteration, destruction, damage, corruption, or deletion of any Client Content resulting from any such access by Third Party Service providers. ProcessWurks encourages you to be aware when you leave the Service and to read the terms and conditions and privacy policy of each third-party website or Third Party Service (“Third Party Terms”) that you visit or from which you access any product or service. ProcessWurks has no control over, and assumes no responsibility for, the content, accuracy, Third Party Terms, or practices of any third-party website or Third Party Service. In addition, ProcessWurks will not and cannot monitor, verify, censor, or edit the content of any third-party website or Third Party Service. When you visit or use a third party’s website or Third Party Service, you acknowledge that such website or Third Party Service is subject to the applicable Third Party Terms, and you release us from any liability directly arising from your use of such websites or Third Party Service. You acknowledge that we are not responsible for such third parties or their products or services. Any such activities, and any Third Party Terms associated with such activities, are solely between you and the applicable third party.
USER ACCOUNTS AND REGISTRATION
Registering Your Account: In order to access certain features of ProcessWurks Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account through the Services or through the Application (“Account”).
Registration Data:
In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Accounts registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using ProcessWurks Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and
You agree to (1) notify ProcessWurks immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
If you provide any information that is untrue, inaccurate, not current or incomplete, or ProcessWurks has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, ProcessWurks has the right to suspend or terminate your Account and refuse any and all current or future use of ProcessWurks Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.
You are responsible for maintaining the confidentiality of any user IDs, passwords and other credentials associated with your User Account, and shall immediately notify ProcessWurks of any actual or suspected unauthorized access to or use of your User Account or any associated user IDs, passwords, and other credentials. You will cooperate fully with ProcessWurks and take all actions that ProcessWurks reasonably deems necessary to maintain or enhance the security of the Service, ProcessWurks’s computing systems and networks, and your access to the Service. ProcessWurks is not and shall not be deemed liable for any loss or damage to you arising from your (or, if you are a Subscriber, your Authorized Users’, or Client Users’) failure to comply with this Section 4(b)(v).
You agree that you shall not have more than one Account at any given time. ProcessWurks reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use ProcessWurks Properties if you have been previously removed by ProcessWurks, or if you have been previously banned from any of ProcessWurks Properties.
Your Account: Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of ProcessWurks.
Necessary Equipment and Software: You must provide all equipment and software necessary to connect to ProcessWurks Properties, including but not limited to, a mobile device that is suitable to connect with and use ProcessWurks Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing ProcessWurks Properties.
RESPONSIBILITY FOR CONTENT
Types of Content: You acknowledge that all information, data, text, software, sound, images, video, messages, tags and/or other materials accessible through ProcessWurks Properties (“Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not ProcessWurks, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through ProcessWurks Properties (“Your Content”), and that you and other Users of ProcessWurks Properties, and not ProcessWurks, are similarly responsible for all Content they Make Available through ProcessWurks Properties (“User Content”). Your Content may include, but is not limited to, emails that you upload and action, tasks that you create and other materials such as text and files. The Services allow you to share Your Content with other Users of the Services that you designate and authorize.
No Obligation to Pre-Screen or validate the Content: You acknowledge that ProcessWurks has no obligation to pre-screen or validate the Content (including, but not limited to, User Content), although ProcessWurks reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that ProcessWurks pre-screens, refuses or removes any Content, you acknowledge that ProcessWurks will do so for ProcessWurks benefit, not yours. Without limiting the foregoing, ProcessWurks shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Storage: Unless expressly agreed to by ProcessWurks in writing elsewhere, ProcessWurks has no obligation to store any of Your Content that you Make Available on ProcessWurks Properties. ProcessWurks has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of Your Content or of other communications originating with or involving use of ProcessWurks Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that ProcessWurks retains the right to create reasonable limits on ProcessWurks use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by ProcessWurks in its sole discretion.
Administrator Access to Your Content: When you sign up for the Services, you associate one or more email addresses with your Account. If you use an email address provided to you by a third party entity of which you are a part (such as yourname@youremployer.com or yourname@ngo.org) (each an “Entity”) you hereby grant that Entity and its administrator(s) permission to access, use, download, export, disclose, share, restrict and/or remove Your Content that you have associated with the email address that includes their domain. You acknowledge and understand that an Entity may elect to utilize one or more third party applications in connection with their teams’ use of the Services and that, by associating Your Content with an email address that includes an Entity’s domain, you are granting permission to have such Content shared with such third party application(s). You also acknowledge and understand that an Entity may restrict or terminate your access to Your Content associated with the email address that includes their domain.
Client Content: As between you and ProcessWurks, you are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Content and other information, materials, or content that you (or, if you are a Customer, that an Authorized User or Client User) uploads, inputs, or posts, or authorizes for upload or input or posting, to or otherwise in connection with the Service. Without limiting the generality of the foregoing, you shall not (nor, if you are a Customer, shall you permit any Authorized User or Client User to) upload, input or post (or authorize the upload, input or posting of) any Client Content or other information, materials or content that (i) infringes the intellectual property rights, rights of privacy or publicity, or other proprietary rights of any third party, (ii) violates any applicable law, (iii) is, or is likely to be considered, immoral, libellous, tortuous, defamatory, threatening, vulgar, or obscene or harmful to minors, or (iv) contains any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code. You acknowledge and agree that ProcessWurks does not, nor is it obligated to, monitor or police any communications or data, information, materials, or content (including Client Content) transmitted through or posted to the Site or the Service and ProcessWurks will not be responsible for such data, information, materials, or content (including Client Content). Notwithstanding the foregoing, however, ProcessWurks may, at its option and in its sole discretion, remove or delete from the Site or Service any data, information, materials, or content (including any Client Content) that ProcessWurks determines violates the terms of this Agreement. For purposes of this Agreement, “Client Content” shall mean any data, materials, trademarks, logos, trade names, or information that you upload or input (or if you are a Customer, that any Authorized User or Client User uploads or inputs) into or in connection with the Site or Service.
Document Retention: You are and shall be fully and completely responsible for all document retention or other legal requirements with respect to or arising from the Client Content or your use or access to the Service. Without limiting the generality of the foregoing, ProcessWurks shall have no obligation to maintain any Client Content or work product generated by or related to your use of the Service.
Data Use Rights: You acknowledge that, in order for ProcessWurks to deliver the Service at a high level of quality, ProcessWurks requires the ability to apply its algorithms, know-how and methodology. Accordingly, and notwithstanding anything herein to the contrary, you hereby grant to ProcessWurks permission to use, on an aggregated and de-identified basis, any Client Content or other information that ProcessWurks learns, acquires, or obtains in connection with this Agreement, for the purposes of providing and improving the Service and ProcessWurks’s products and services. You also grant to ProcessWurks permission to share or publish summary results relating to research data and to distribute or license such data to third parties.
SUBSCRIPTIONS AND SUBSCRIPTION FEES.
Subscription Plans: The Service is offered on a subscription basis and in accordance with the individual service plan selected by Subscriber and identified in the Order (a “Subscription Plan”). We may modify, terminate, or replace the Service or any Subscription Plan from time to time in our sole discretion and without prior notice. You should carefully review the scope and limitations of any Subscription Plan prior to placing an order.
Free Trials: If you are a Customer (subscriber), your access to the Service pursuant to a Subscription Plan may be preceded by a free trial (a “Trial”). We reserve the right, in our sole discretion, to determine your eligibility for a Trial. If you receive a Trial, you may only use those portions of the Service included in your Trial, only for the duration of that Trial, and only for the purpose of evaluating the desirability of purchasing the Service. Upon the expiration of any Trial period, your access to the Service will cease, except where you have purchased and/or registered for a Subscription Plan in accordance with the terms hereof.
Promotions: ProcessWurks may offer from time to time promotions on the Site or with respect to the Service (including, without limitation, Trials) that may affect pricing and that are governed by terms and conditions separate from these Terms. If there is a conflict between the terms for a promotion and these Terms, the promotion terms will govern.
Subscription Fees: As consideration for ProcessWurks’s provision of the Service hereunder, Customer (subscriber) will pay to ProcessWurks all subscription fees and other amounts set forth hereunder or in the Order. Unless otherwise established in an applicable Order, Customer (subscriber) must have a current valid credit card or other payment method acceptable to ProcessWurks (“Payment Method”) in order to access (or permit Authorized Users or Client Users to access) the Service. By providing a Payment Method to ProcessWurks, Customer (subscriber) is expressly authorizing ProcessWurks to charge Customer (subscriber) the subscription fees and other amounts applicable to Customer (subscriber)’s Subscription Plan at the applicable frequency and at the then-current rate. Unless otherwise expressly established in the Order, the subscription fees applicable to Customer’s Subscription Plan shall be as posted at www.ProcessWurks.com/pricing-page/ as of the payment due date. ProcessWurks will bill all applicable subscription fees and other amounts in advance and to the Payment Method Customer provides during registration or in the Order (or to a different Payment Method if Customer advises us in writing of a change and provides an alternate, valid Payment Method). ALL SUBSCRIPTION FEES ARE FULLY EARNED UPON PAYMENT AND ARE NON-REFUNDABLE.
Renewal Terms: If you are a Customer (subscriber), your Subscription Plan will automatically renew for additional subscription terms of the same length (i.e., weekly, monthly, quarterly or annually) and on same and payment method set forth in the Payment Authorization upon expiration of your initial subscription term unless and until you cancel your Subscription Plan or we terminate it or ProcessWurks notifies the customer about the change in payment frequency at least 30 days prior to the beginning of the applicable Renewal Subscription Term. YOU MUST CANCEL YOUR SUBSCRIPTION PLAN BEFORE IT RENEWS FOR A RENEWAL SUBSCRIPTION PERIOD IN ORDER TO AVOID BILLING OF SUBSCRIPTION FEES FOR THE RENEWAL SUBSCRIPTION PERIOD TO YOUR PAYMENT METHOD.
Renewal Pricing: ProcessWurks reserves the right to change the Fees applicable to the Services for any Renewal Subscription Term, effective on the first day of such Renewal Subscription Term, provided that ProcessWurks has given Customer at least 30 days’ prior written notice of the pricing change as provided in this subsection (e). If pricing for the upcoming Renewal Subscription Term will change, ProcessWurks shall specify the new pricing terms in the Renewal Notice sent to Customer at least 30 days prior to the expiration of the current Subscription Term (such specification of new pricing, a “Price Change Notice”). If the subscription renewal is not timely cancelled as provided in Section 7(a), the subscription will automatically renew with the pricing set forth in the Price Change Notice.
Cancelation: Unless otherwise established in an applicable Order and subject to Section 6(a) hereof, you may cancel your Subscription Plan at any time; provided, however, that any such cancellation shall not become effective until the expiration of your then-current subscription term. If you cancel your Subscription Plan, you will continue to have access to the Service in accordance with the terms of your applicable Subscription Plan for the remainder of the then-current subscription term. PROCESSWURKS DOES NOT PROVIDE REFUNDS OR CREDITS WITH RESPECT TO THE SERVICE OR ANY SUBSCRIPTION PLAN, INCLUDING FOR ANY PARTIALLY-USED SUBSCRIPTION TERMS. To cancel a Subscription Plan, please send a written cancelation request via email to ProcessWurks at cancel@ProcessWurks.com, and include the phrase “CANCEL SUBSCRIPTION” in the subject line. For additional information or for assistance, please contact ProcessWurks’s customer support team at 617-838-7724. Cancelations of Subscription Plans will only be effective when submitted in compliance with the requirements of, and as set forth in, this Section 6(e).
Subscription Fee Changes: Customer (subscriber) acknowledges that the amount billed each subscription period may vary due to promotional offers and/or changes made by ProcessWurks or Customer to Customer’s Subscription Plan (including, without limitation, upgrading or downgrading). In the event of any upgrade or downgrade of Customer’s Subscription Plan, the Payment Method will automatically be charged the new rate for your next billing cycle. PROCESSWURKS WILL NOT PROVIDE ANY REFUNDS OR CREDITS FOR ANY UPGRADE OR DOWNGRADE OF A SUBSCRIPTION PLAN. Customer (subscriber) agrees and acknowledges that, in the event that Customer (subscriber) downgrades to a lesser Subscription Plan, such downgrading may result in a loss of Client Content, accessible Service features, or other changes to your User Account or access to the Service. Customer (subscriber) expressly accepts all risk associate with any such downgrade and acknowledges that ProcessWurks is not and will not be responsible or liable for such Client Content losses or denigration in access.
Taxes: The fees specified in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer (subscriber) shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on ProcessWurks’s net income.
Authorizations: Customer authorizes ProcessWurks or its billing platform to initiate entries to the bank account or credit card Customer specifies in its Payment Authorization in order to pay amounts due and, if necessary, to initiate adjustments for any transactions credited or debited in error. No prior notification of a charge will be required or provided unless the scheduled payment date or amount changes for a Renewal Subscription Term, in which case prior notice will be given as provided in this agreement and Terms of Service. This authorization (as modified to reflect any changes in Customer’s account information notified to ProcessWurks) will remain in effect during the duration of the Agreement, unless and until either ProcessWurks or Customer provides 15 days written notification of a change in payment method. Customer agrees to (i) not dispute scheduled charges that correspond to the terms of the Payment Schedule and the Agreement and (ii) in the event of a new payment method or a change in other account information, to update its Payment Authorization at least 15 days prior to the next billing date. Customer represents and warrants that the origination of ACH transactions or credit card transactions (as the case may be) to its account in accordance with the Agreement complies with applicable law.
Late Payments: Overdue amounts will bear interest at the rate of 1.5% per month or the maximum rate permitted by Applicable Laws, whichever is less. Customer shall reimburse ProcessWurks for any collection agency fees, attorney’s fees, court costs and other reasonable expenses ProcessWurks incurs in collecting any overdue amounts. In addition, ProcessWurks may suspend the Services as provided in Section 7(d)
Payment Disputes: Customer must assert any payment dispute in writing within 7 days after the due date of the invoice giving rise to the dispute. Customer waives the right to dispute any payment that Customer does not dispute in writing within such period. Any undisputed portion of an invoice must be paid by the due date.
Credit/debit Card Information: ProcessWurks does not store any credit / debit card information on the application. All payments are processed by third party providers and services.
TERM; TERMINATION; SUSPENSION OF SERVICES
Subscription Terms: Unless earlier terminated as provided in the Agreement, (i) the initial Subscription Term for the Services will be the subscription term specified in the initial Order Form for the Services, beginning on the Effective Date set forth in the Order Form; and (ii) Customer’s subscription to the Services will thereafter automatically renew for successive periods as set in section 6(e) (each, a “Renewal Subscription Term”), unless either (A) Customer cancels the subscription renewal by providing ProcessWurks with written notice of non-renewal to support@processwurks.com at least 30 days before the expiration date of the then-current Subscription Term, or (B) ProcessWurks cancels the subscription renewal by providing Customer with written notice of non-renewal before the end of the then-current Subscription Term. The initial subscription term and each Renewal Subscription Term are referred to in the Agreement as a “Subscription Term”. A Subscription Term may not be terminated before its end except as expressly permitted by the Agreement.
Term of Agreement: The term of the Agreement (the “Term“) begins on the Effective Date of the Order Form for the initial Subscription Term for Customer’s first Services subscription and ends on the date of termination or expiration of the last Renewal Subscription Term of the Services.
Termination for Cause:
Either party may, in addition to other relief, terminate the Agreement if the other party breaches any material provision thereof and, if such breach is capable of cure, fails within 30 days after receipt of notice of default to correct such default. During any period of breach, ProcessWurks may suspend Customer’s access to the Services as provided in Section 6(d).
Either party may terminate the Agreement by written notice to other party if the other party (A) ceases to operate in the ordinary course, (B) becomes insolvent or generally unable to pay its debts as they become due, (C) becomes the subject of any bankruptcy, liquidation, dissolution or similar proceeding that is not resolved within 60 days of filing, (D) makes an assignment for the benefit of its creditors, or (E) has a receiver, trustee, custodian, or similar agent appointed for a material portion of its property or business (any of these, an “Insolvency Event”).
Suspension of Service: Notwithstanding anything to the contrary in the Agreement, ProcessWurks may (in addition to any other rights and remedies) suspend Customer’s and any Authorized User’s access to any portion or all of the Services, without liability to Customer, if (i) there is a material risk to or disruption of the security or performance of the SaaS Services or the ProcessWurks Technology or to any Affiliate, customer, supplier, vendor or commercial partner of ProcessWurks that was caused by Customer, its Affiliates, or its or their Authorized Users or Representatives (a “System Threat”); (ii) Customer is subject to an Insolvency Event; (iii) Customer is in breach of its payment obligations under the Agreement; (iv) Customer or any of its Representatives is using the Services, the ProcessWurks Materials or the Services Work Product for activities that are or are potentially fraudulent, in violation of Applicable Law or otherwise in breach of the Agreement; (v) Customer or any of its Affiliates is the subject of an investigation or legal action by or at the direction of any regulatory, governmental, or judicial authority, or if Customer or any of its Affiliates commits or is alleged to have committed acts of fraud or abuse that may compromise the integrity or reputation of the IRS E-file program and/or ProcessWurks (as determined by ProcessWurks in its sole discretion); or (vi) ProcessWurks’s provision of the Services to Customer or any Authorized User is prohibited by Applicable Law. If the suspension is for a System Threat, ProcessWurks shall use commercially reasonable efforts to provide prior notice to Customer, including by phone or email to Customer’s account contact. ProcessWurks shall work in good faith with Customer to resolve the circumstance giving rise to the suspension and shall resume providing access to the Services as soon as reasonably possible after the event giving rise to the suspension is resolved. Customer will continue to be obligated to pay all Fees for the Services during the period of suspension and Customer will not be entitled to any compensation or credits for any period of suspension, unless the suspension was due to ProcessWurks’s error or omission or a System Threat not caused by Customer, its Affiliates, or its or their Authorized Users or Representatives.
Effect of Termination: Upon termination or expiration of the Agreement, Customer’s rights under the Agreement immediately terminate (with the exception of those surviving termination, as described below). Customer remains responsible for all Fees and other payment obligations applicable to the remainder of the then-current Subscription Term, no refunds are available for any portion of the Subscription Term that has been prepaid, and Customer expressly waives any right to charge back any amount paid via credit card or other means. All provisions that by their nature should survive termination of the Agreement will do so (including, by way of example and not limitation, payment obligations, indemnification and defence obligations, and duties of confidentiality).
Return and Deletion of Customer Data:
Upon Customer’s written request at any time up to 45 days after termination of the Agreement, ProcessWurks shall provide an export file of Customer Data stored on ProcessWurks’s systems in a commonly used format reasonably determined by ProcessWurks and subject to ProcessWurks’s standard fees for the preparation for such export file. ProcessWurks may, but has no obligation to, maintain or return Customer Data more than 90 days after termination of the Agreement.
Upon Customer’s written request at any time during the Term or up to 90 days after termination of the Agreement, ProcessWurks shall promptly destroy or overwrite Customer Data or Customer’s Confidential Information in ProcessWurks’s possession or under its control, other than Customer Data or Customer’s Confidential Information contained in automatic computer backups or historical archives or that must be retained to fulfil obligations under the Agreement or another agreement with a ProcessWurks Affiliate, for regulatory, legal, or audit purposes, or for compliance with ProcessWurks’s data retention policies. If Customer requests that ProcessWurks permanently destroy or overwrite Customer Data, Customer releases ProcessWurks from any claims or liability relating to that Customer Data.
USER CONDUCT
As a condition of use, you agree that you will not, under any circumstances:
Reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of ProcessWurks Properties (including your Account), or access to or use of ProcessWurks Properties;
Interfere or attempt to interfere with the proper functioning of ProcessWurks Properties or connect to or use ProcessWurks Properties in any way not expressly permitted by the Terms;
Use, display, mirror or frame ProcessWurks Properties, or any individual element within ProcessWurks Properties, ProcessWurks’s name, any ProcessWurks trademark, logo or other proprietary information, without ProcessWurks’s express written consent;
Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide ProcessWurks Properties, or to obtain any information from ProcessWurks Properties; or
Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court.
SPAM POLICY
ProcessWurks has zero-tolerance for spam. You may not use ProcessWurks’s tools for sending bulk or unsolicited messages, sending Unsolicited Commercial Email (UCE), Unsolicited Bulk Email (UBE) or Unsolicited Facsimiles (Fax), which is email or facsimile sent to recipients as an advertisement or otherwise. We monitor all activity very closely for violations and will remove any accounts if violations are detected.
We also take spam complaints from our users seriously. This includes, but is not limited to, sending unwanted or unsolicited messages through ProcessWurks’s Invoicing, or Inviting tools. We investigate all spam reports and will immediately cancel subscriptions and/or remove accounts reported for spam when we see fit without any questions.
INVESTIGATIONS
ProcessWurks may, but is not obligated to, monitor or review ProcessWurks Properties and Content at any time. Without limiting the foregoing, ProcessWurks shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law. Although ProcessWurks does not generally monitor user activity occurring in connection with ProcessWurks Properties or Content, if ProcessWurks becomes aware of any possible violations by you of any provision of the Terms, ProcessWurks reserves the right to investigate such violations, and ProcessWurks may, at its sole discretion, immediately terminate your license to use ProcessWurks Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
INTERACTIONS WITH OTHER USERS IN APPLICATION
User Responsibility: You are solely responsible for your interactions with other Users of the Services and any other parties with whom you choose to interact through the Services; provided, however, that ProcessWurks reserves the right, but has no obligation, to intercede in such disputes. You agree that ProcessWurks will not be responsible for any liability incurred as the result of such interactions.
Content Provided by Other Users: ProcessWurks Properties may contain User Content provided by other Users. ProcessWurks is not responsible for and does not control User Content. ProcessWurks has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK
ProcessWurks Intellectual Property: ProcessWurks, its Affiliates and their licensors own and will retain all right, title and interest in the Services, ProcessWurks Technology, ProcessWurks Materials, Confidential Information of ProcessWurks or its Affiliates, and all enhancements, improvements or derivative works of the foregoing, including all related Intellectual Property rights. Nothing in the Agreement grants or conveys any Intellectual Property rights or ownership rights in any of the foregoing, except for the limited rights expressly provided in the Agreement.
Trademarks: The trademarks, trade names, trade dress, logos, and service marks (collectively, the “Trademarks”) displayed on www.processwurks.com are the registered and/or unregistered Trademarks of ProcessWurks LLC, or such other third party that may own the displayed Trademarks. Nothing contained on this Website or application in these terms of service grants to you, by implication or otherwise, any license or right to use any Trademarks displayed on this Web site/application without the written permission of ProcessWurks, LLC or such other third party that may own the displayed Trademarks.
Customer’s Intellectual Property: Customer owns and will retain all right, title and interest in Customer Data and Customer’s Confidential Information, including all related Intellectual Property rights. Nothing in the Agreement grants or conveys to ProcessWurks any ownership rights in the Customer Data or Customer’s Confidential Information, except as provided in Section 12(d) with respect to the creation and ownership of Aggregate Information.
Feedback: If Customer or its Representative provides ProcessWurks or its Affiliate with any suggestions, ideas, requests for strategy additions or other enhancements, questions, testimonials or success stories, or other feedback relating to the Services, whether directly to Representatives of ProcessWurks or its Affiliates, through the Services, through social media, during community forums or events or otherwise, and whether in written, audio or video format (“Feedback”), Customer grants to ProcessWurks and its Affiliates a nonexclusive, perpetual, irrevocable, fully paid-up, royalty-free, worldwide license, with rights to transfer and sublicense, to (i) use, reproduce, publish, display and/or distribute in any medium, sell, modify (as long as the substance of the original Feedback is not misrepresented) and make derivative works of, such Feedback for marketing, publicity, and promotion of ProcessWurks, its Affiliates and its and their products and services and for all other commercial business purposes and (ii) use, reproduce, publish, display and/or distribute Customer’s name or logo (and in the case of video Feedback, the image of Customer’s Representative(s)) in connection with such Feedback. Neither ProcessWurks nor any of its Affiliates is required to use or publish any Feedback, identify its source, or compensate Customer or its Representatives for use or publication of Feedback.
CONFIDENTIALITY.
Definition of Confidential Information: “Confidential Information” means information disclosed by a party (the “disclosing party”) to the other party (the “receiving party”) in connection with the Agreement that is marked as confidential or that would reasonably be considered confidential under the circumstances. Confidential Information includes, with respect to ProcessWurks and its Affiliates, the non-public aspects of the Service, the ProcessWurks Technology, non-public ProcessWurks Materials and Documentation and lists of customers, and with respect to Customer, all non-public Customer Data, and with respect to both parties, the terms of the Agreement and all non-public information relating to business plans and strategies, customers, data, financial information, forecasts, market analysis, pricing, Inventions, designs, products (whether actual, contemplated, experimental or planned), security measures, and software code. Confidential Information does not include descriptions of tax issues, requirements or strategies (other than any Customer- or Customer client-unique data or information contained therein) or information that the receiving party can demonstrate by documentation was (i) already rightfully known to the receiving party without restriction on use or disclosure prior to the receipt of such information from or on behalf of the disclosing party, (ii) received by the receiving party on a non-confidential basis from a third party without a breach of an obligation to maintain its confidentiality, (iii) was or becomes generally known to the public other than by breach of the Agreement by the receiving party, or (iv) independently developed by the receiving party without use or reference to the disclosing party’s Confidential Information.
Restrictions on Use and Disclosure of Confidential Information: The receiving party shall use the confidential information of the disclosing party solely to perform its obligations and exercise its rights under the Agreement, to comply with Applicable Laws, or as otherwise permitted under the Agreement. Except as provided in subsection (d) of this Section 12, the receiving party shall hold Confidential Information of the disclosing party in strict confidence and shall not disclose or authorize the disclosure of such Confidential Information to any third party, except to the receiving party’s Affiliates and its and their Representatives or service providers who (i) have a need to know such Confidential Information and (ii) are bound by a written agreement or other legally binding obligation of confidentiality and restricted use at least as protective as this Section 12. The receiving party is responsible for use and disclosure of the Confidential Information by its Affiliates and its and their Representatives and service providers and their compliance with the obligations of the receiving party under this Section 12. The receiving party shall protect Confidential Information of the disclosing party from unauthorized access and disclosure using the same degree of care, but in no event less than a reasonable standard of care, that it uses to protect its own Confidential Information of a similar nature. Each receiving party shall promptly notify the disclosing party, without undue delay in accordance with Applicable Laws, of unauthorized access, use, or disclosure of any of the disclosing party’s Confidential Information in the receiving party’s possession or under its control.
Disclosure Required by Law: The receiving party may disclose Confidential Information of the disclosing party in order to comply with the order of a court, regulatory agency or other governmental body of competent jurisdiction, or as otherwise necessary to comply with Applicable Laws, provided that the receiving party shall first have given written notice to the other party (if legally permitted to do so) and shall cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the Confidential Information. If the receiving party is legally compelled to disclose Confidential Information of the disclosing party, the receiving party shall disclose only that portion of the Confidential Information that is legally required to be disclosed.
Aggregate Information: ProcessWurks and its Affiliates may monitor Customer’s use of the Service and collect and use associated metadata, including IP addresses, stored sessions, and network metadata, for the purposes of providing the Service. In addition, ProcessWurks and its Affiliates may collect and compile “Aggregate Information,” which is metadata, data, strategies, and other information of or related to customers and their use of the Service and/or the Practice Development Services that is collected into groups so that no individually identifiable person or entity is identifiable as its source. As between the parties, ProcessWurks solely owns all right, title, and interest in Aggregate Information and all related Intellectual Property rights, and Customer acknowledges that there are no confidentiality obligations or other restrictions on ProcessWurks’s and its Affiliates’ use of Aggregate Information.
DATA PROTECTION AND PRIVACY
Compliance with Laws. For the purposes of the Agreement, Each Party is responsible for complying with Applicable Laws applicable to its business, including those regarding data privacy. To the extent that Customer is required to comply with the California Consumer Privacy Act (“CCPA”), the California Consumer Privacy Rights Act, the Virginia Consumer Data Protection Act, the Colorado Consumer Protection Act, the Utah Consumer Privacy Act, or any other existing or newly enacted Applicable Laws regarding data privacy, ProcessWurks shall facilitate Customer’s compliance with its obligations under such Applicable Laws, including with respect to data security and responses to data subject requests relating to Personal Information in ProcessWurks’s possession or under its control. Customer shall ensure that it has all necessary rights and permissions required by Applicable Laws and otherwise for submission and use of Customer Data as contemplated by the Agreement.
Use of Customer Data. ProcessWurks and its Affiliates may retain, use, and disclose Customer Data solely (i) to provide the Services, provide customer support and otherwise perform ProcessWurks’s obligations under the Agreement; (ii) for internal business purposes to maintain, evaluate, develop, and improve the Services and the SaaS Services; (iii) to comply with Applicable Laws; (iv) as otherwise provided in the Agreement.
Processing of Customer Data; CCPA. If ProcessWurks processes Customer Data on behalf of Customer, the Agreement are Customer’s instructions for processing Customer Data. If ProcessWurks’s provision of the Service is subject to the CCPA and ProcessWurks processes Customer Data that includes personal information, as defined by the CCPA (“CCPA Personal Information”) (i) ProcessWurks collects, retains, uses, and discloses such CCPA Personal Information solely for the permitted purposes described in the Agreement and does not sell (as defined in the CCPA) CCPA Personal Information; and (ii) ProcessWurks certifies that it understands and will comply with the foregoing restrictions.
Data Protection. ProcessWurks shall maintain commercially reasonable technical, administrative and physical safeguards and procedures designed to comply with Applicable Laws, to protect the security, confidentiality and integrity of, and protect against unauthorized release, access, destruction, modification, or disclosure of, Customer Data and Customer’s Confidential Information. ProcessWurks shall use commercially reasonable measures to ensure that its Affiliates and any ProcessWurks subcontractors use reasonable data protection safeguards and procedures in handling any Customer Data or Customer’s Confidential Information.
Breach Notification. In the event that ProcessWurks becomes aware of unauthorized access, use, or disclosure of Customer Data or Customer’s Confidential Information in ProcessWurks’s possession or under ProcessWurks’s control, ProcessWurks shall (i) promptly notify Customer of such incident without undue delay in accordance with Applicable Laws and provide Customer with information regarding such incident as reasonably requested by Customer to enable Customer to comply with its obligations under Applicable Laws; and (ii) use commercially reasonable efforts to identify the cause of and remediate the cause of the incident within ProcessWurks’s systems, to the extent such remediation is within ProcessWurks’s reasonable control.
Privacy: You acknowledge and agree that all information collected by ProcessWurks is subject to our Privacy Policy. By accessing or using the Service, you consent to all actions we take with respect to your information in compliance with our Privacy Policy.
NON-SOLICITATION AND NON-COMPETITION
Non-solicitation: During the Term and for the one (1) year period thereafter, Customer shall not, directly or indirectly, individually or on behalf of any other person, firm, corporation or other entity, knowingly solicit, aid or induce (i) any employee, contractor or consultant of ProcessWurks or any of its Affiliates to leave such employment or engagement to accept employment with or render services to or with any other person or entity unaffiliated with ProcessWurks, knowingly take any action to assist any other person or entity in identifying, hiring or engaging any such employee, contractor or consultant, or hire any such employee, contractor or consultant; or (ii) any other customer of ProcessWurks or any of its Affiliates to purchase goods or services competitive with those then sold by ProcessWurks or its Affiliates from another person or entity or assist any other person or entity in identifying or soliciting any such customer.
Non-competition: Customer acknowledges that ProcessWurks and its Affiliates provide content and performs services of a unique nature that are irreplaceable and that, if Customer shared the ProcessWurks Materials or the Services Work Product with any competitor of ProcessWurks or its Affiliates or other third party, ProcessWurks and its Affiliates would suffer irreparable harm. Accordingly, during the Term and for the one (1) year period thereafter, Customer shall not, directly or indirectly, own, manage, operate, control, be employed or engaged by (whether as an employee, consultant, independent contractor or otherwise, and whether or not for compensation) or render services to any person, firm, corporation or other entity, in whatever form, engaged in any business that competes with the business of ProcessWurks or any of its Affiliates, in any country in which ProcessWurks or its Affiliates conduct business. This provision does not prevent or restrict Customer from (a) owning not more than 2% of the total shares of all classes of stock outstanding of any publicly held entity engaged in such business or (b) rendering services to charitable organizations, as such term is defined in Section 501(c) of the Internal Revenue Code.
INDEPENDENT CONTRACTORS AND NO PROFESSIONAL ADVICE.
The parties are independent contractors, and nothing in the Agreement shall be construed as creating a joint venture, partnership, agent, employment or fiduciary relationship between ProcessWurks and Customer. Customer expressly acknowledges that ProcessWurks provides the Services, the ProcessWurks Materials and the Services Work Product for informational purposes and that Customer does not rely upon ProcessWurks, the Services, the ProcessWurks Materials or the Services Work Product for advice regarding appropriate tax treatment. Customer is responsible for the tax policies and tax reporting positions taken by Customer on behalf of its clients. Customer acknowledges and agrees that (i) ProcessWurks is entitled to base its conclusions on and rely on the accuracy and completeness of the Customer Data and assumptions that are furnished by Customer and its Representatives, without any independent investigation or verification, and that their inaccuracy or incompleteness could materially affect ProcessWurks’s conclusions or the Services Work Product and (ii) ProcessWurks will not update the Services Work Product or advice or recommendations after the completion of the applicable Services (including, for example, updates to reflect changes or modifications to applicable law and regulations or to related judicial and administrative interpretations, or for subsequent events or transactions), unless Customer separately engages ProcessWurks to do so in writing.
INTERNATIONAL USERS
ProcessWurks Properties are controlled and offered by ProcessWurks from its facilities in the United States of America. ProcessWurks makes no representations that ProcessWurks Properties are appropriate or available for use in other locations. Those who access or use ProcessWurks Properties from other jurisdictions do so at their own volition and are responsible for compliance with local data security and privacy law.
INDEMNIFICATION
You agree to indemnify and hold ProcessWurks, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “ProcessWurks Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, ProcessWurks Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. ProcessWurks reserves the right, at its own cost, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with ProcessWurks in asserting any available defences. You agree that the provisions in this section will survive any termination
MODIFICATIONS TO SERVICE TERMS
ProcessWurks may modify these Practice Management Service Terms at any time and post the updated version at https://www.processwurks.com/terms-of-use/ (or any successor website). If ProcessWurks modifies these Practice Management Service Terms, it shall provide prior written notice (“Modification Notice”) to Customer of such modifications at least 30 days prior to the effectiveness of the modifications, which notification may be provided (without limitation) through a statement posted on the website or in Customer’s administrative console for the Account, in an email notification or in an invoice or Renewal Notice. If modifications are necessary to comply with Applicable Laws, ProcessWurks is not required to provide prior notice but shall use commercially reasonable efforts to provide prior notice when practicable.
DISCLAIMER OF WARRANTIES
AS IS: YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF PROCESSWURKS PROPERTIES IS AT YOUR SOLE RISK, AND PROCESSWURKS PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. PROCESSWURKS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NO LIABILITY FOR CONDUCT OF THIRD PARTIES. YOU ACKNOWLEDGE AND AGREE THAT PROCESSWURKS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD PROCESSWURKS PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
PROCESSWURKS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) PROCESSWURKS PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF PROCESSWURKS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF PROCESSWURKS PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN PROCESSWURKS PROPERTIES WILL BE CORRECTED.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH PROCESSWURKS PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS PROCESSWURKS PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. PROCESSWURKS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES
From time to time, ProcessWurks may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind and may be modified or discontinued at ProcessWurks’s sole discretion. The provisions of this section apply with full force to such features or tools.
NO LIABILITY FOR CONDUCT OF OTHER USERS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF PROCESSWURKS PROPERTIES.
LIMITATION OF LIABILITY
DISCLAIMER OF CERTAIN DAMAGES: YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL PROCESSWURKS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH PROCESSWURKS PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE OR EMOTIONAL DISTRESS, WHETHER OR NOT THE PROCESSWURKS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS OR INTERACTIONS WITH OTHER USERS OF PROCESSWURKS PROPERTIES, ON ANY THEORY OF LIABILITY, INCLUDING ANY SUCH DAMAGES RESULTING FROM: (1) THE USE OR INABILITY TO USE PROCESSWURKS PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH PROCESSWURKS PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT, YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON PROCESSWURKS PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO PROCESSWURKS PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL PROCESSWURKS PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY PROCESSWURKS AS A RESULT OF YOUR USE OF PROCESSWURKS PROPERTIES IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT A CLAIM. IF YOU HAVE NOT PAID PROCESSWURKS ANY AMOUNTS IN THE SUBSCRIPTION PERIOD DURING WHICH YOU FIRST ASSERT ANY SUCH CLAIM, PROCESSWURKS’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50).
USER CONTENT. PROCESSWURKS PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
BASIS OF THE BARGAIN: THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PROCESSWURKS AND YOU.
REMEDIES FOR VIOLATION AND BREACH
Violations: If ProcessWurks becomes aware of any possible violations by you of the Terms, ProcessWurks reserves the right to investigate such violations. If, as a result of the investigation, ProcessWurks believes that criminal activity has occurred, ProcessWurks reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. ProcessWurks is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in ProcessWurks Properties, including Your Content, in ProcessWurks’s possession in connection with your use of ProcessWurks Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of ProcessWurks, its Users or the public, and all enforcement or other government officials, as ProcessWurks in its sole discretion believes to be necessary or appropriate.
Breach: In the event that ProcessWurks determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for ProcessWurks Properties, ProcessWurks reserves the right to:
Warn you via e-mail (to any e-mail address you have provided to ProcessWurks) that you have violated the Terms;
Delete any of Your Content provided by you or your agent(s) to ProcessWurks Properties;
Discontinue your registration(s) with the any of ProcessWurks Properties, including any Services or any ProcessWurks community;
Discontinue your subscription to any Services;
Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
Pursue any other action which ProcessWurks deems to be appropriate.
DISPUTE RESOLUTION
Please read this Arbitration Agreement carefully: It is part of your contract with ProcessWurks and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement: All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by ProcessWurks that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and ProcessWurks, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution: Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to ProcessWurks should be sent to: ProcessWurks LLC, Address: 300 TradeCenter, Suite 4410, Woburn, MA 01801, United States. After the Notice is received, you and ProcessWurks may attempt to resolve the claim or dispute informally. If you and ProcessWurks do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules: Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules governing the arbitration are available online at adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in Woburn, MA, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that ProcessWurks made to you prior to the initiation of arbitration, ProcessWurks will pay you $1,000 in addition to the award. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration: If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits: If you or ProcessWurks pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator: If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and ProcessWurks, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and ProcessWurks.
Waiver of Jury Trial: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and ProcessWurks in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND PROCESSWURKS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions: ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality: All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability: If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Right to Waive: Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
Survival of Agreement: This Arbitration Agreement will survive the termination of your relationship with ProcessWurks.
Small Claims Court: Notwithstanding the foregoing, either you or ProcessWurks may bring an individual action in small claims court
Emergency Equitable Relief: Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration: Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
Courts: In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Middlesex County, Massachusetts, for such purpose.
GENERAL PROVISIONS
Electronic Communications: The communications between you and ProcessWurks use electronic means, whether you visit ProcessWurks Properties or send ProcessWurks e-mails, or whether ProcessWurks posts notices on ProcessWurks Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from ProcessWurks in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ProcessWurks provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Assignment: The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without ProcessWurks’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. ProcessWurks shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. If a Force Majeure event occurs that affects ProcessWurks’s performance of its obligations under these Terms: (a) ProcessWurks will contact you as soon as reasonably possible to notify you; and (b) ProcessWurks’s obligations under these Terms will be suspended and the time for ProcessWurks’s performance of its obligations will be extended for the duration of the Force Majeure event. You may cancel the Services affected by a Force Majeure event which has continued for more than sixty (60) days. To cancel please contact ProcessWurks.
Questions, Complaints, Claims: If you have any questions, complaints or claims with respect to ProcessWurks Properties, please contact us at: support@processwurks.com . We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Limitations Period: YOU AND PROCESSWURKS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, PROCESSWURKS PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Governing Law: The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of Massachusetts, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Choice of Language: It is the express wish of the parties that the Terms and all related documents have been drawn up in English.
Notice: Where ProcessWurks requires that you provide an e-mail address, you are responsible for providing ProcessWurks with your most current e-mail address. In the event that the last e-mail address you provided to ProcessWurks is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, ProcessWurks’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to ProcessWurks at the following address: ProcessWurks LLC, Address: 300 TradeCenter, Suite 4410, Woburn, MA 01801, United States. Such notice shall be deemed given when received by ProcessWurks by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
Waiver: Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability: If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Export Control: You may not use, export, import, or transfer ProcessWurks Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained ProcessWurks Properties, and any other applicable laws. In particular, but without limitation, ProcessWurks Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using ProcessWurks Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use ProcessWurks Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by ProcessWurks are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer ProcessWurks products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Successors and Assigns: The Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns.
Order of Precedence: Except to the extent expressly specified otherwise, if there is any conflict between the Order Form, these Practice Management Service Terms and any addendum signed by the parties, the following order of precedence applies: (i) first, any addendum between the parties; (ii) second, the Order Form; and (ii) third, these Practice Management Service Terms.
Entire Agreement: The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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