WORKDAY
INSTALLED SOFTWARE LICENSE AGREEMENT
PLEASE READ THE TERMS AND CONDITIONS OF THIS INSTALLED SOFTWARE LICENSE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BECAUSE THIS AGREEMENT FORMS A BINDING LEGAL AGREEMENT BETWEEN YOU, THE ENTITY YOU REPRESENT (IF APPLICABLE) AND WORKDAY. “Workday” means the Workday entity or affiliate that signed the applicable MSA or Partner Agreement (defined below). If no such agreement is applicable, “Workday” means (a) if you reside in the United States, Workday, Inc., (b) if you reside in Australia, Workday Australia Pty Ltd. and (c) if elsewhere, Workday Limited, a private limited company organized and existing under the laws of Ireland (registration number 521013). This Agreement governs your installation and use of the software (together with any updates or upgrades) provided by Workday which links to this Agreement (the “Software”) and any accompanying electronic or hardcopy documentation provided by Workday (the “Documentation”). For purposes of this Agreement, the term Software also includes the Documentation.
By clicking on the “accept” button, installing or using the Software, you are consenting to be bound by this Agreement. If you do not agree to the terms and conditions of this Agreement, you may not install or use the Software. In order to download, install or use the Software, you must be acting on behalf of either (a) a current Workday customer that has a current subscription agreement (“MSA”) or (b) an official participant in a Workday Services Alliance Partner Program, which has executed a partner agreement (“Partner Agreement”) with Workday, is implementing on behalf of a current Workday customer, and whose download, installation and use of this Software is in the scope of work between it and a current Workday customer. You represent and warrant that you have authority to enter into this Agreement by either a Workday customer or official participant in a Workday Services Alliance Partner Program. “You” and “your” refer herein to you and that business. The terms and conditions of this Agreement will prevail and govern over any conflicting terms of any other agreement between you and Workday concerning the Software. You understand and agree that the Software is not part of the Workday Service and unless expressly included, no provisions of the applicable MSA or Partner Agreement will apply to this Agreement. “Workday Service” means Workday’s software-as-a-service applications provided to Workday customers for their internal business purposes pursuant to a separate and independent agreement.
1.Grant of License. Subject to your compliance with the terms and conditions of this Agreement, Workday grants you a limited, non-exclusive, non-sublicensable and non-transferable license for your authorized employees, agents, representatives and third party providers (“Authorized Users”) to install and use the executable form of the Software and the Documentation made available by Workday solely for your internal business purposes. You are responsible for all Authorized Users’ use of the Software. Workday reserves all rights, title, and interest in and to the Software not expressly granted to you in this Agreement.
2.Restrictions. Except as expressly specified in this Agreement, you may not: (a) copy, modify or create derivative works based on the Software or any of its components other than as specifically authorized in this Agreement; (b) license, sell, resell, assign, transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party other than as specifically authorized in this Agreement; (c) make the functionality of the Software available to multiple users through any means, including, without, limitation, by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau or any other type of services; (d) use the Software in violation of applicable law; (e) use the Software in connection with creating or supporting any commercially available product or service; (f) remove any copyright or other proprietary notices in the Software; (g) interfere with any license key mechanism in the Software or otherwise circumvent mechanisms in the Software intended to limit its use; or (h) use the Software in any manner that exceeds the scope of use expressly permitted in this Agreement. You acknowledge and agree that portions of the Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Workday and its licensors. Accordingly, you agree not to disassemble, decompile, reverse engineer or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or technology of the Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition (and then only with prior written notice to Workday).
3.Ownership. The Software is licensed, not sold and Workday owns all right, title and interest in and to the Software, including all intellectual property rights therein. The Software is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you. Workday shall have a royalty-free, worldwide, transferable, sub-licensable (through multiple tiers), irrevocable, perpetual license to use any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the operation or functionality of the Software (“Feedback”). You are under no obligation to provide Feedback.
4.Confidentiality.
4.1 Confidentiality. A party shall not disclose or use any non-public, proprietary, or confidential information of the other party (“Confidential Information”) for any purpose outside the scope of this Agreement, except with the other party’s prior written permission.
4.2 Protection. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind (but in no event using less than reasonable technology industry standard of care).
4.3 Compelled Disclosure. If a party is compelled by law to disclose Confidential Information of the other party, it shall promptly provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure.
4.4 Remedies. If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.
4.5 Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party.
5.Third Party and Open Source Software. The terms and conditions of this Agreement shall not apply to any “open source” or “free software” licenses (“Open Source Software”) contained in or accompanying the Software. Any such Open Source Software is subject to the terms of the applicable open source license agreement and copyright notice(s). You acknowledge that the Software may also contain copyrighted software of Workday’s suppliers which are obtained under a license from such suppliers (“Third Party Software”). All third party licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Your use of any Third Party Software shall be subject to, and you shall comply with, the terms and conditions of this Agreement, and the applicable restrictions and other terms and conditions set forth in any Third Party Software documentation or printed materials, including without limitation an end user license agreement. You are solely responsible for ensuring that your systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. Workday will have no obligations or responsibility under this Agreement for issues caused by your use of any third-party hardware or software not provided by Workday.
6.Term and Termination. This Agreement remains effective until terminated as set forth herein (the “Term”). Either Party may terminate this Agreement, with or without cause. Upon any termination, you will, as of the date of such termination, (a) immediately cease accessing or using Software as contemplated by this Agreement, (b) promptly delete all copies of the Software and Documentation and portions thereof and (c) require your Authorized Users to do the same. This Agreement will automatically terminate without notice if you breach any term of this Agreement.
7.Disclaimer. THE SOFTWARE IS PROVIDED “AS IS” AND NEITHER WORKDAY NOR ANY OF ITS SUPPLIERS MAKES ANY WARRANTY AS TO ITS USE, DATA SECURITY, RELIABILITY OR PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WORKDAY, AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH RESPECT TO THE SOFTWARE. WORKDAY DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT THE SOFTWARE WILL MEET YOUR NEEDS. YOU MAY HAVE OTHER STATUTORY RIGHTS.
8.Limitation of Liability and Indemnification.
8.1 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WORKDAY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE LESSER OF (A) THE FEES ACTUALLY PAID BY YOU TO WORKDAY UNDER THIS AGREEMENT OR (B) FIVE THOUSAND US DOLLARS (US $5,000). TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WORKDAY’S THIRD PARTY LICENSORS INCUR ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE.
8.2 EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL WORKDAY OR ITS LICENSORS HAVE ANY LIABILITY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR COSTt OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SOFTWARE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF WORKDAY OR ITS SUPPLIERS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WORKDAY OR ITS SUPPLIERS SHALL NOT BE LIABLE FOR LOSSES OR DAMAGES DUE TO SITUATIONS RESULTING FROM FORCE MAJEURE.
8.3 Indemnification by You. To the maximum extent permitted by law, or unless otherwise specified in the applicable MSA or Partner Agreement between the entity you represent and Workday, you shall defend, indemnify, and hold Workday and its affiliates, and its and their suppliers, harmless from any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with or relating to claims arising from use of the Software by you or your Authorized Users in breach of this Agreement. Workday shall: (a) promptly give written notice of the Claim to you; (b) give you sole control of the defense and settlement of the Claim (provided that you may not settle any Claim without Workday’s prior written consent); and (c) provide to you, at your sole cost, all reasonable assistance.
9.Changes to this Agreement or the Software.
9.1 Changes to this Agreement. Workday reserves the right, in its sole discretion, to modify this Agreement from time to time. When we modify this Agreement we will update the “last updated” date at the bottom of this page. Such changes will be effective upon notice to you or on such other date provided with the notice. You can review the most current version of this Agreement here: https://community.workday.com/articles/808626. You are responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to you or cause you to no longer be in agreement or compliance with this Agreement, you may terminate this Agreement in accordance with Section 6 and must immediately uninstall the Software and destroy all copies of the Software and the Documentation. Your continued use of the Software following any notice of revision to this Agreement constitutes your complete and irrevocable acceptance of any and all such changes.
9.2 Changes to the Software. Workday may modify the Software for any reason or without any specific reason, at any time and at its entire discretion, including for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Software. You agree that the Software may install or download the modifications automatically. You agree that Workday may stop supporting previous versions of the Software upon availability of an updated version. Workday’s service providers shall have no obligation to furnish any maintenance or customer support with respect to the Software.
10.General.
10.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
10.2 Fees and Taxes. The Software is provided under this Agreement at no fee. You are responsible for paying any taxes associated with the rights acquired hereunder, excluding taxes based on Workday's net income or property.
10.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after mailing; or (iii) after sending by email. Notices to Workday shall be addressed to the attention of its General Counsel, Legal at 6110 Stoneridge Mall Road, Pleasanton, CA 94588, USA and must also be delivered to legal@workday.com. Notices to you shall be addressed to your designated support contact.
10.4 Governing Law; Venue; Waiver of Jury Trial. This Agreement will be governed by and construed in accordance with the laws of the applicable MSA or Partner Agreement between the entity you represent and Workday and applicable jurisdiction provisions (if any). If the applicable MSA or Partner Agreement does not contain a governing law provision, this Agreement and all matters arising out of or relating to this Agreement, shall be governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California. If the applicable MSA or Partner Agreement does not contain a provision governing jurisdiction or venue, then for any dispute arising out of or relating to this Agreement, the parties agree to the exclusive jurisdiction of the courts of the State of California and to exclusive venue in the Superior Court for the County of San Francisco or the United States District Court for the Northern District of California Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
10.5 Export. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and you shall not export or re-export, or allow the export or re-export, of the Software in violation of any such restrictions, laws or regulations. You hereby represent and warrant that you are not, and that you will not make the Software available to, any restricted person or any person located in, under the control of, or a national or resident of any restricted country.
10.6 Federal Government End Use Provisions. Workday provides the Software for federal government end use solely in accordance with the terms and conditions of this Agreement, and Workday provides only the technical data and rights as provided herein. If a government agency has a need for rights not conveyed under these terms, it must negotiate with Workday to determine whether there are acceptable terms for transferring additional rights. A mutually acceptable addendum specifically conveying such rights must be executed by the parties in order to convey such rights beyond those set forth herein. For avoidance of doubt and unless otherwise agreed to, Workday does not currently provide the Software for use in furtherance of a federal prime or subcontract.
10.7 Assignment. You may not assign or transfer this Agreement or any of your obligations or rights granted hereunder, by operation of law or otherwise, without Workday’s prior written consent, and any attempt by you to do so, without such consent, will be void and of no effect. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
10.8 Cumulative Remedies and Waiver. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties.
10.9 Enforceability and Severability. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect.
10.10 Surviving Provisions. All provisions of this Agreement shall survive the termination or expiration of this Agreement except for the licenses granted by Workday in Section 1 titled “Grant of License”.
10.11 Entire Agreement. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter. Any terms or conditions contained in a purchase order or other ordering document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Workday and will be deemed null and of no effect. The parties expressly acknowledge and agree that the activities contemplated under this Agreement are not covered under the terms and conditions under which Workday makes its hosted subscription services available to its customers and partners, including without limitation any other agreements between Workday and you. There are no agreements, representations, warranties, promises, covenants, commitments, or undertakings relating to the Software other than those expressly set forth herein.