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Terms and Conditions

BACKGROUND

WorkCast’s platform - Stratus - is the most powerful online events platform on the planet. As a flexible end-to-end SaaS based technology, Stratus can be used for all your online event needs, from webinars to webcasts to virtual events.

Our cloud-based technology means you don’t need any plug-ins or downloads to run or attend a WorkCast event. If you can load a browser which supports video, you can attend. This also means you can watch online events hosted on WorkCast on any device. We know it’s important to be mobile these days, so WorkCast eliminates any barriers to webinar viewing for attendees.

Not only does WorkCast host your content, our platform is also a powerful event management tool, with end-to-end functionality to help you successfully set up, manage and deliver your events - on message and on brand. With our detailed analytics tools, you can convert audience members into qualified leads and customers with ease.

Most importantly, we offer a user-friendly system designed to take the stress out of setting up, running and marketing an online event. The WorkCast Presenter Studio makes it easy not only to run your events, but to engage with attendees - you can run polls, Q&A, surveys and even host chats. With the Studio, any user - tech savvy or not - can run great events.

AGREED TERMS

1 INTERPRETATION

1.1 The definitions and rules of interpretation in this clause apply in this Agreement.

Authorised (Named) Users means those employees, agents, independent contractors and/or customers of the Client who hold a WorkCast log in account.

Back-Up Policy means WorkCast’s policy for backing up Client Data, which is part of the WorkCast Policies.

Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Charges means the charges payable by the Client to WorkCast for the provision of the WorkCast Products, as set out in the Contract Agreement.

Conditions means the terms and conditions set out below.

Confidential Information means information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information as further set out in clause 9.

Contract Agreement means the agreement order form executed by WorkCast and the Client, incorporating these Conditions.

Control shall be as defined in section 1124 of the Corporation Tax Act 2010, and controlscontrolled and the expression change of control shall be construed accordingly.

Client means the Client whose details appear in the Contract Agreement as well as authorised named users.

Client Data means the data inputted or provided by the Client, Authorised Users or WorkCast on the Client's behalf for the purpose of using the WorkCast Products or facilitating the Client's use of the WorkCast Packages.

Data Protection Legislation means all applicable data protection, privacy and electronic marketing legislation in force from time to time during the WorkCast Contract Term, including (but not limited to) the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003, the General Data Protection Regulation (EU) 2016/679 (GDPR), and any codes of practice relating to the same.

Documentation means any user instructions which WorkCast makes available to the Client in connection with the WorkCast Products.

ICO means the Information Commissioner's Office.

Live Event means an online webinar, webcast, job fair, virtual event, seminar, conference or meeting that is intended to be broadcast live. (Following the live broadcast, Live Events may also be stored for later viewing).

Personal Data means any data which relate to an individual who can be identified (a) from those data; or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the holder of the information.

Client Data that constitutes personal data (as defined in Article 4 of Regulation (EU) 2016/679, GDPR).

Relevant Route means contacting WorkCast through your sales associate, Customer Success Manager or support@workcast.com.

Support Service Core Hours means core working hours of 8am UK to 4pm Pacific US time. Also defined in paragraph 6.5.

Sales Agreement means the Contract Agreement, together with these Conditions, and any documents incorporated by reference herein or annexed hereto, and this Agreement shall be construed accordingly.

Software means any software applications provided by WorkCast as part of the WorkCast Packages.

Target Availability has the meaning given to that term in paragraph 1 of Schedule 1.

Virus means anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.

WorkCast Account means a user account set up in accordance with clause 2.

WorkCast Policies means WorkCast’s Acceptable Use Policy, Privacy Policy, Back-up Policy and Cookie Policy, together with any other policies notified by WorkCast and provided in written format to the Client with sufficient time and opportunity for Client to adequately review the same.

WorkCast Products means the products offered by WorkCast, as set out in the Contract Agreement.

WorkCast Contract Start Date means the date set out in the Contract Agreement.

WorkCast Contract Term has the meaning given in clause 13.1.

1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 Unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular.

1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.

1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.

1.8 A reference to writing or written includes faxes but not e-mail.

2 SETTING UP A WORKCAST ACCOUNT

2.1 The Client shall nominate one or more Authorised Users, per limitations within products and/or services purchased. Prior to utilising the WorkCast Products, each Authorised User must be communicated to WorkCast by the relevant route (see Section 1: Interpretation for definition) in order to gain credentials for the services which have been purchased.

2.2 By creating a WorkCast Account, the Client represents and warrants that:

2.2.1 all information submitted to WorkCast is true, accurate, current, and complete as required by the registration process; and

2.2.2 the Client will maintain and promptly update Client Data to keep it true, accurate, current and complete. This shall include the deletion of the WorkCast Account for any employee, agent, independent contractor or customer of the Client who ceases to be an Authorised User.

2.2.3 the Client understands and accepts that only the Authorised User can gain access to the WorkCast account using the details set up in the registration process. Misuse of this would be a breach of agreement. Resulting in, a potential suspension or termination with full charges of your account, subject to further investigation.

2.2.4 the Client understands and accepts that any misuse or neglect of a WorkCast account, may result in suspension or termination with full charges applied. If this additionally results in a security incident, data theft or breach, WorkCast will notify the ICO, or the relevant authority as appropriate.

2.3 The client understands, that each named user, e.g. Host or Producer, must have a licence and associated log in to access the WorkCast platform. Any additional authorised named users, must be purchased at the rate set out in the contract terms.

2.3.1 An authorised named users’ credentials, cannot be shared with other parties or persons.

2.3.2 WorkCast will only support authorised named users held within the agreed licence.

3 WORKCAST'S OBLIGATIONS

3.1 WorkCast shall, during the Contract Term, provide the WorkCast Products and services purchased.

3.2 WorkCast shall:

3.2.1 provide the WorkCast Products in accordance with the agreement and with reasonable skill and care; and

3.2.2 make the platform available in accordance with the Target Availability.

3.3 The WorkCast Policies are incorporated into this Agreement by reference, and WorkCast and the Client shall have the rights, and comply with the obligations, set out in the WorkCast Policies.

3.4 The obligations at clauses 3.1 and 3.2 shall not apply to the extent of any non-conformance which is caused by Client’s use (or an Authorised User’s use) of the WorkCast Products contrary to WorkCast's written instructions, or modification or alteration of the WorkCast Products by Client or any of its Authorise Users. If the WorkCast Products do not conform to the foregoing obligations, WorkCast will, at its expense, correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Notwithstanding the foregoing, WorkCast:

3.4.1 does not warrant that the Client's use (or an Authorised User’s use) of the WorkCast Products will be uninterrupted or error-free; or that the WorkCast Products, Documentation and/or the information obtained by the Client through the WorkCast Products will meet the Client's requirements; and

3.4.2 is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the WorkCast Products and Documentation may be subject to reasonably acceptable limitations, delays and other problems inherent in the use of such communications facilities.

3.5 This agreement shall not prevent WorkCast from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.

3.6 WorkCast warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.

4 CLIENT'S OBLIGATIONS

4.1 The Client shall:

4.1.1 provide WorkCast with:

(a) all necessary co-operation in relation to this Agreement; and

(b) all necessary access to such information as may be reasonably required by WorkCast to fulfil this Agreement,

in order for WorkCast to provide the WorkCast Products, including but not limited to Client Data, security access information and configuration services;

4.1.2 comply with all applicable laws and regulations with respect to its activities under this Agreement;

4.1.3 carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, WorkCast may adjust any agreed timetable or delivery schedule as reasonably necessary;

4.1.4 ensure that the Authorised Users use the WorkCast Products and the Documentation in accordance with the terms and conditions of this Agreement. And shall be responsible for any Authorised User's breach of this Agreement;

4.1.5 obtain and maintain all necessary licences, consents, and permissions necessary for WorkCast, its contractors and agents to perform their obligations under this Agreement, including without limitation the WorkCast Products;

4.1.6 ensure that its network and systems comply with the relevant specifications provided by WorkCast from time to time; and

4.1.7 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to WorkCast's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.

4.2 The Client shall, during the course of its use of the WorkCast Products, comply with the WorkCast Policies, and the Client warrants to WorkCast that it shall not knowingly access, store, distribute or transmit any Viruses, or any material that:

4.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

4.2.2 intentionally facilitates illegal activity;

4.2.3 depicts sexually explicit images;

4.2.4 promotes unlawful violence;

4.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

4.2.6 in a manner that is otherwise illegal or causes damage or injury to any person or property;

4.2.7 infringes any third party's intellectual property rights, other proprietary rights or rights of privacy;

4.2.8 does not comply with relevant advertising standard codes and guidance; or

4.2.9 violates any law, statute, ordinance or regulation in the UK,

and WorkCast reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this clause. The Client acknowledges that WorkCast does not screen or review content on the WorkCast Products to determine whether amongst other things, it contains content which contravenes clause 4.2, and shall indemnify WorkCast against any successful third-party claim that any such infringing content caused loss or damage to such third party directly or indirectly as a result of it appearing on the WorkCast Products.

4.3 The Client shall not:

4.3.1 except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(a) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the WorkCast Products (including any Software) and/or Documentation (as applicable) in any form or media or by any means; or

(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or

4.3.2 access all or any part of the WorkCast Products and Documentation in order to build a product or service which competes with the WorkCast Products and/or the Documentation; or

4.3.3 remove, obscure, interfere with or modify the presentation or functionality of any aspect of the WorkCast Products;

4.3.4 subject to clause 19.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the WorkCast Products and/or Documentation available to any third party except the Authorised Users (provided that this shall not prevent the Client from making certain services, such as webcast, webinar or e-learning services available to their intended audience, as agreed between the Client and WorkCast); or

4.3.5 attempt to obtain, or assist third parties in obtaining, access to the WorkCast Products and/or Documentation, other than the Authorised Users under clause 2; and

4.4 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the WorkCast Products and/or the Documentation and, in the event of any such unauthorised access or use, must notify WorkCast immediately.

4.5 The rights provided under this clause are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.

5 CLIENT DATA

5.1 The Client shall own all rights, title and interest in and to all of the Client Data and shall, save as otherwise provided hereunder, have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.

5.2 WorkCast shall follow its archiving procedures for Client Data as set out in its Back-Up Policy, as such document may be amended by WorkCast in its sole discretion on occasion. In the event of any loss or damage to Client Data (excluding Personal Data), the Client's sole and exclusive remedy shall be for WorkCast to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by WorkCast in accordance with the archiving procedure described in its Back-Up Policy. WorkCast shall not be responsible for any loss, destruction, alteration or disclosure of Client Data (excluding Personal Data) caused by any third party, including an Authorised User.

5.3. The Client shall ensure that the Client is entitled to transfer the relevant Personal Data to WorkCast so that WorkCast may lawfully use, process and transfer the Personal Data in accordance with this Agreement and the Data Protection Legislation on the Client's behalf.

5.4 The Client shall ensure that the relevant data subjects have been informed of, and have given their consent to, such use, processing, and transfer of their Personal Data to the extent required by the Data Protection Legislation.

5.5 For the purposes of this clause 5, “controller”, “processor”, “personal data”, “data subject” and “processing” (and its cognate terms) shall have the meaning given to them in Article 4 of Regulation (EU) 2016/679. The parties hereby acknowledge that the Client shall be the controller, and WorkCast shall be the processor, in respect of Personal Data and the parties agree to comply with their respective obligations under the Data Protection Legislation. Furthermore, and in addition to clause 25, WorkCast shall:

5.5.1 only process such Personal Data as is strictly necessary to provide the WorkCast Products or facilitate use of the WorkCast Products in accordance with this Agreement or in accordance with the Client's express written instructions from time to time, and shall not process Personal Data for any other purposes;

5.5.2 not appoint a sub-processor without notification to the Client and in the event that the Client does provide such consent WorkCast will ensure that sub-processor is bound by the terms of this clause 5.5 as it applies to WorkCast hereunder;

5.5.3 provide reasonable assistance to the Client in the Client complying with its obligations under Data Protection Legislation in respect of Personal Data, including assisting the Client in complying with a data subject's right to access, deletion and to portability, as further set out in clause 27;

5.5.4 at the end of the duration of this Agreement, anonymise Personal Data;

5.5.5 promptly comply with any request from the Client requiring WorkCast to amend, transfer or delete Personal Data where possible;

5.5.6 in the event that WorkCast receives any complaint, notice or communication (from either the ICO or a data subject) which relates directly or indirectly to the processing of Personal Data or to either party's compliance with Data Protection Legislation, WorkCast shall notify the Client without undue delay and it shall provide the Client and the ICO (if applicable) with full co-operation and assistance in relation to any such complaint, notice or communication;

5.5.7 not disclose Personal Data to any data subject or to a third party other than at the request of the Client;

5.5.8 notify the Client without undue delay upon becoming aware of any unauthorised or unlawful processing, loss of, damage to or destruction of any Personal Data;

5.5.8b comply with any reasonable codes of practice or policies of the Client relating to Personal Data, as notified to WorkCast from time-to-time;

5.5.9 maintain records of processing carried out in respect of Personal Data;

5.5.10 upon request by the Client, provide evidence demonstrating its compliance with this Clause; and

5.5.11 take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data, and against the accidental loss or destruction of, or damage to Personal Data, such measures shall include:

(a) the pseudonymisation and encryption of Personal Data;

(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(c) ensuring that all individuals, parties, employees or other persons / entities with access to Personal Data are bound by industry standard confidentiality obligations which include keeping such Personal Data confidential;

(d) the ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; and

(e) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing.

6 SERVICE LEVELS

6.1 WorkCast reserve the right to implement scheduled, or urgent unscheduled maintenance to the platform where ultimately necessary. This includes, but is not limited to; updates, new features, resolutions, patch tests and required penetration tests. WorkCast will endeavour to keep the impact levels as low as possible, but some minor disruption to service levels may occur which cannot be avoided.

6.2 System Availability - WorkCast will provide 98% System Availability measured over prior 3-month period, excluding any System Maintenance or Force Majeure Events.

6.3 Managed Events - Sev 1 issue not resolved within target resolution time. WorkCast root cause identifies WorkCast at fault; free re-run of event or new managed event.

6.4 Monitored Event - Sev 1 issue not resolved within target resolution time. WorkCast root cause identifies WorkCast at fault; Credit 50% of month monitoring fee add on

6.5 Core Hours – Core hours are defined as:

Timezone

Start Time

End Time

UK Time

8am

12am (midnight)

Eastern US Time

3am

7pm

Pacific US Time

12am (midnight)

4pm

 

6.6 WorkCast shall use Commercially Reasonable Efforts to:

6.6.1 prioritise all Support Requests based on its reasonable assessment of the severity level of the problem reported; and

6.6.2 WorkCast shall give the Client regular updates of the nature and status of its efforts to correct any Fault.

7 THIRD PARTY PROVIDERS

The Client acknowledges that the WorkCast Products may enable or assist it to access the website content or, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. WorkCast makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not WorkCast. WorkCast recommends that the Client refers to the third party's website terms and conditions and privacy policy prior to using the relevant third-party website. WorkCast does not endorse or approve any third-party website nor the content of any of the third-party website made available via the WorkCast Products.

8 CHARGES AND PAYMENT

8.1 WorkCast shall issue invoices in respect of the Charges, and the Client shall pay to WorkCast the Charges set out in WorkCast’s invoices within 30 Business Days of the date of WorkCast’s invoice. The Charges are payable:

8.1.1 Annually in advance in respect of fixed fees; or

8.1.2 Monthly in advance in respect of fixed 1/12 of annual agreed charge.

8.1.3 Where payments are made by credit card an invoice will only be issued where specifically requested by the Client to finance@workcast.com.

8.2 If WorkCast has not received payment within 30 Business Days of the due date, and without prejudice to any other rights and remedies of WorkCast:

8.2.1 WorkCast may, without liability to the Client, disable the Client's (and any Authorised User’s) password, account and access to all or part of the WorkCast Products and WorkCast shall be under no obligation to provide any or all of the WorkCast Products while the invoice(s) concerned remain unpaid; and

8.2.2 interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Natwest Bank plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.

8.2.3 The full value of the contract in place still remains payable due to a commitment to purchase the product sold.

8.3 All amounts and fees stated or referred to in this Agreement:

8.3.1 shall be payable in the currency of the invoice issued & contract signed;

8.3.2 shall be made by electronic transfer to the bank details contained in the invoice or via WorldPay online;

8.3.3 are, subject to clause 8.4, non-cancellable and non-refundable;

8.3.4 are exclusive of value added tax, which shall be added to WorkCast's invoice(s) at the appropriate rate.

8.4 If the Client and WorkCast have agreed that a managed Live Event will take place on a certain date, and the Client wishes to cancel or postpone such managed Live Event prior to that date, then the following rules shall apply:

8.4.1 the Client shall notify WorkCast of such intended cancellation or postponement, giving full details, including any steps WorkCast should take to inform registered attendees; and

8.4.2 if, at the time of such notification, WorkCast has commenced preparatory work in relation to such Live Event (including, but not limited to design work, event configuration, registration page, attendee registration workflow), if such notification is received by WorkCast with:

(a) More than 24 hours until scheduled commencement of the Live Event, the Client shall pay a cancellation or postponement of event fee equating to 30% of the Charges associated with the Live Event (as identified in the Contract Agreement), together with any irrecoverable third-party costs which WorkCast has committed to; and

(b) Less than 24 hours until scheduled commencement of the Live Event, the Client shall pay all Charges associated with such Live Event (and any rescheduling of such Live Event shall be deemed a new Live Event for charging purposes).

9 PROPRIETARY RIGHTS

9.1 The Client acknowledges and agrees that WorkCast and/or its licensors own all intellectual property rights in the WorkCast Products and the Documentation. Except as expressly stated herein, this Agreement does not grant the Client any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the WorkCast Products or the Documentation.

9.2 WorkCast confirms that it has all the rights in relation to the WorkCast Contract and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

10 CONFIDENTIALITY

10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:

10.1.1 is or becomes publicly known other than through any act or omission of the receiving party;

10.1.2 was in the other party's lawful possession before the disclosure;

10.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;

10.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or

10.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

10.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.

10.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.

10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

10.5 The Client acknowledges that details of this Agreement, the WorkCast Products and the results of any performance tests of the WorkCast Products, constitute WorkCast's Confidential Information.

10.6 WorkCast acknowledges that the Client Data is the Confidential Information of the Client.

10.7 This clause 10 shall survive termination of this Agreement, however arising.

10.8 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.

11 INDEMNITY

11.1 The Client shall defend WorkCast against any claim arising directly as a result of the Client's material breach of this Agreement, in its use of the WorkCast Products and/or Documentation and shall indemnify WorkCast for any amounts awarded against WorkCast in judgment or settlement of such claims, provided that:

11.1.1 the Client is given prompt notice, control and defence of any such claim;

11.1.2 WorkCast provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client's expense; and

11.1.3 the Client is given sole authority to defend and/or settle the claim (taking into account the views of WorkCast).

11.2 Subject to clause 10.3, WorkCast shall defend the Client, its officers, directors and employees against any claim that the WorkCast Products or Documentation infringes any intellectual property rights including United Kingdom patents effective as of the WorkCast Contract Start Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:

11.2.1 WorkCast is given prompt notice, control and defence of any such claim;

11.2.2 the Client provides reasonable co-operation to WorkCast in the defence and settlement of such claim, at WorkCast's expense; and

11.2.3 WorkCast is given sole authority to defend and/or settle the claim.

11.3 Clause 11.2 shall not apply in respect of any open source software contained in software utilised in the WorkCast Products.

11.4 In the defence or settlement of any claim, WorkCast may procure the right for the Client to continue using the WorkCast Products, replace or modify the WorkCast Products so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.

11.5 In no event shall WorkCast, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:

11.5.1 a modification of the WorkCast Products or Documentation by Client or an Authorised User; or

11.5.2 the Client's or an Authorised User’s use of the WorkCast Products or Documentation in a manner contrary to this Agreement; or

11.5.3 the Client's or an Authorised User’s use of the WorkCast Products or Documentation after explicit written notice of the alleged or actual infringement from WorkCast or any appropriate authority.

12 LIMITATION OF LIABILITY

12.1 This clause 12 sets out the entire financial liability of either party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other:

12.1.1 arising under or in connection with this Agreement;

and

12.1.2 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

12.2 Except as expressly and specifically provided in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.

12.3 Nothing in this Agreement excludes the liability of either party:

12.3.1 for death or personal injury caused by its negligence; or

12.3.2 for fraud or fraudulent misrepresentation;

12.3.3 any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;

12.3.4 in respect of the indemnity given by WorkCast in clause 5.6; or

12.3.5 any other liability which cannot be excluded or limited under applicable law.

12.4 Subject to clause 12.2 and clause 12.3:

12.4.1 Neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and

12.4.2 Subject to clause 12.3 and except in relation to any indemnities given by either party in this Agreement, each party’s total aggregate liability in contract (including under any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with this Agreement shall be limited to the Charges already paid under this Agreement, by the Client to WorkCast.

13 TERM AND TERMINATION

13.1 This Agreement shall, unless otherwise terminated as provided in this Agreement, commence on the WorkCast Contract Start Date and shall continue for the initial term of 12 months unless otherwise stated in the Contract Agreement (Initial WorkCast Contract Term). Until either party notifies the other party in writing of termination no less than 60 days before the end of the Initial WorkCast Contract Term, this Agreement shall continue beyond the Initial WorkCast Contract Term on the same Conditions (together, the Initial WorkCast Contract Term and any extension shall be referred to as the WorkCast Contract Term).

13.2 Without affecting any other right or remedy available to it:

13.2.1 either party may terminate this Agreement with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 28 days after being notified in writing to do so;

(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;

(f) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;

(g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;

(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;

(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 13.2.1(b) to clause 13.2.1(h) (inclusive); or

(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; and

13.2.2 WorkCast party may terminate this Agreement with immediate effect by giving written notice to the Client:

(a) if the Client fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 Business Days after being notified in writing to make such payment;

(b) without having to specify a reason (in which case WorkCast shall refund any prepaid amounts to the Client within 30 days of termination);

13.3 On termination of this Agreement for any reason:

13.3.1 all licences granted under this Agreement shall immediately terminate;

13.3.3 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

13.3.3 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;

13.3.4 WorkCast may destroy or otherwise dispose of any of the Client Data in its possession unless WorkCast receives, no later than sixty days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client Data. WorkCast shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination).; and

13.3.5 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced.

14 FORCE MAJEURE

WorkCast shall have no liability to the Client under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control. Including, without limitation; strikes, lock-outs or other industrial disputes (whether involving the workforce of WorkCast or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. Provided that the Client is notified of such an event and its expected duration.

15 CONFLICT

If there is an inconsistency between these Conditions and the Contract Agreement, the provisions in these Conditions shall prevail.

16 VARIATION

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17 WAIVERS

No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

18 RIGHTS AND REMEDIES

Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

19 SEVERANCE

19.1 If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.

20 ENTIRE AGREEMENT

20.1 This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.

20.2 Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.

21 ASSIGNMENT

21.1 The Client shall not, without the prior written consent of WorkCast (such consent not to be unreasonably withheld), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

21.2 WorkCast may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.

22 NO PARTNERSHIP OR AGENCY

Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

23 THIRD PARTY RIGHTS

This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

24 NOTICES

24.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in this Agreement.

24.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

25 GOVERNING LAW

This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

26 JURISDICTIONS

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).

27 GDPR

27.1 Further to clause 5, WorkCast confirms that it is aware, as processor, of its responsibilities under the GDPR. A processor is responsible for processing personal data on behalf of a controller. WorkCast hold records of Client Data and processing activities, and confirms that security and organisational measures are in place in order to ensure that its obligations under GDPR are complied with.

27.2 All clients of WorkCast have the right to access, anonymise and transfer any data which WorkCast holds about them (including their Personal Data), relating to the contract and services delivered in relation to said contract. If the Client wishes to make such a request, it should be submitted to support@workcast.com and WorkCast shall respond within 5 days of receipt.

27.3 WorkCast shall comply at all times with the ICO’s code of practice on Privacy Impact Assessments and has a designated individual to take responsibility for data protection compliance. The business takes the protection of all client data seriously (including the Client’s Personal Data) due to the nature of the business being performed and the Personal Data being held.

27.4 Under the GDPR, WorkCast requires consent in order to retain any Personal Data which relates to the Client (unless it can rely upon another ground of lawful processing) and the Client has the right to opt out of such data retention. All opt out requests should be submitted to support@workcast.com and WorkCast shall respond within 5 days of receipt.

28 ADDITIONAL CHARGES

28.1 The Client may, within the WorkCast Contract Term, request additional products or services, which may incur additional charges. Those additional products and/or services shall, for the avoidance of any doubt, be subject to the terms of this Agreement.

28.2 WorkCast reserve the right to invoice in full upon request, without additional contract signatory, for any additional products or services delivered under clause 28.1.

 

Schedule 1 
SUPPORT AND AVAILABILITY COMMITMENTS

1 DEFINITIONS

1.1 The following definitions and rules of interpretation apply in this Schedule.

Commercially Reasonable Efforts means the same degree of priority and diligence with which WorkCast meets the support needs of its other similar clients.

Contact List means a current list of WorkCast contacts and telephone numbers to enable the Client to escalate its Support Requests, including:

(a) the first person to contact; and

(b) the persons in successively more qualified or experienced positions to provide the support sought.

Fault means any non-Availability of the WorkCast Products or problem with the WorkCast Products.

Help Desk Support means any support provided by help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to WorkCast Services.

Higher-level Support means any higher-level support provided by an individual on the Contact List.

Live Event Scheduled Times means the times agreed in writing between WorkCast and the Client, at which the Live Event is to take place. Live Event Scheduled Times are not applicable to viewing a recorded Live Event after the Live Event has taken place.

Permitted Downtime means any periods during Live Event Scheduled Times, during which the Live Event is not Available due to one or more of the following factors: (a) any Client environment issues affecting connectivity, including without limitation, Client’s telecommunications connection or any other Client software or equipment, Client’s firewall software, hardware or security settings, Client’s configuration of anti-virus software or anti-spyware or malware software, or operator error of Client; (b) any third party software, hardware, or telecommunication failures, including internet slow-downs or failures; (c) any event set out in clause 14 (force majeure); (d) issues related to third party domain name system (DNS) errors or failures; (e) emergency maintenance of the Live Event; and (f) a period at which the event is undergoing essential maintenance at either, the client request, or maintenance required as part of the service of the agreement.

Service Levels means the service level responses and response times referred to in the Service Level Table.

Service Level Table means the table set out below in Schedule 2.

Solution means either of the following outcomes:

(a) correction of a Fault; or

(b) a workaround in relation to a Fault (including a reversal of any changes to the WorkCast Services if deemed appropriate by WorkCast) that is reasonably acceptable to the Client.

Support Request means request made by the Client in accordance with this schedule for support in relation to the WorkCast Services, including correction of a Fault.

Support Services means the support services described in paragraph 3 of this Schedule 1 and in the Contract Agreement.

Target Availability

WorkCast will provide 98% System Availability measured over prior 3 month period, excluding any System Maintenance or Force Majeure Events.

2 Support Services

2.1 WorkCast shall perform the Support Services during the Core Hours in accordance with the Service Levels – section 6.5.

2.2 WorkCast shall:

2.2.1 provide Help Desk Support by means of the following e-mail address support@workcast.com;

2.2.2 commit appropriate resources to the provision of Higher-Level Support;

2.2.3 where Help Desk Support is not provided within the relevant Service Level response time and the Client escalates its Support Request to an individual of appropriate qualification or experience on the Contact List, provide Higher-Level Support;

2.2.4 use Commercially Reasonable Efforts to correct all Faults notified; and

2.2.5 provide technical support for the WorkCast Services in accordance with the Service Levels.

3 Submitting Support Requests and access

3.1 The Client may request Support Services by way of a Support Request.

3.2 Each Support Request shall include a description of the problem and the start time of the incident.

3.3 The Client shall provide WorkCast with:

3.3.1 prompt notice of any Faults; and

3.3.2 such output and other data, documents, information, assistance and (subject to compliance with all Client's security and encryption requirements notified to WorkCast in writing) remote access to the Client’s systems, as are reasonably necessary to assist WorkCast to reproduce operating conditions similar to those present when the Client detected the relevant Fault and to respond to the relevant Support Request.

3.4 The Client acknowledges that, to properly assess and resolve Support Requests, it may be necessary to permit WorkCast direct access at the Client’s premises to the Client’s systems and the Client's files, equipment and personnel.

 

Schedule 2

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Terms and Conditions
Version 2
Approved: 19 June 2019, 3pm UK Time