Terms of Service
Master Subscription Agreement
This Agreement governs the access and use of the Software provided by Adaptive pursuant to your Order. The terms of your Order take precedence over any inconsistent terms in this Agreement. If you have entered into a separate written agreement with Adaptive regarding the use of Software, then the terms of that agreement will prevail and will govern your use of the Software. In agreeing to these terms on behalf of your employer, you are representing that you have the authority to bind that entity to the Order and this Agreement and that your agreement to these terms will be treated as the agreement of that entity. If you have been granted access to use the Software by your account administrator, you are subject to these terms through that account and you are required to abide by the terms of this Agreement.
If you are using a trial subscription of the Software, the Software will be accessible until the end of the trial period, unless you purchase a subscription. During the trial period, the Software is provided “AS-IS” (with no warranty) and the Support Terms will not apply. Adaptive may suspend, limit, or terminate your trial subscription at any time (and will not be liable for any damages related to your use of the Software during this trial period). Unless you purchase a subscription to the Software by the end of the trial period, you will not be able to further access the data stored in the Software and it will be deleted (and may not be recoverable).
“Adaptive” means Workday Adaptive Planning, Inc. and/or its subsidiaries, as indicated on your Order.
“Agreement” means this Master Subscription Agreement.
“Authorized Users” means your employees, contractors and agents that you authorize and for whom you have purchased a subscription (each with a user login and password) to use the Software on your behalf.
“Confidential Information” means any non-public information that is marked or identified as confidential (or under the circumstances of the disclosure or the nature of the information, it would reasonably be understood to be confidential or proprietary) at the time of disclosure.
“Customer Data” means the data and information you upload to and/or create while using the Software.
“Feedback” means feedback or suggestions about the features, functions, or operation of the Software.
“Information Security Program” means Adaptive’s then-current data security and data management policies and procedures that apply to the operation and use of the Software.
“Order” means the order that references and incorporates this Agreement.
“Protected Information” means sensitive, personally identifiable information that is subject to specific regulations or laws that impose increased protections and/or obligations with respect to handling that type of information.
“Renewal Order” means a notice regarding the renewal of your subscription to the Software.
“Software” means the Adaptive cloud-based software that is listed in the Order.
“Subscription Fees” means the subscription fees listed in your Order for the use of the Software.
“Subscription Term” means the subscription term listed in the Order.
“Support Terms” means the support terms provided in Section 4.1.
“Uptime Availability” means the availability of the Software provided in Section 4.3.
“you” means the customer identified in the Order (and includes any of your affiliates and subsidiaries that are owned or controlled by you, or are under common control with you).
2. SUBSCRIPTION TERMS
2.1. Software Subscription. Subject to the payment of the Subscription Fees and the terms and conditions of this Agreement, you may access and use the Software in the configuration described in the Order for your own internal business purposes during the Subscription Term and in accordance with any other terms and conditions provided in the Order. You may purchase additional services, products, storage, or Authorized Users to add to your existing subscription at any time and the Subscription Fees for these purchases will be prorated for the remainder of the applicable Subscription Term. Adaptive provides technical support and updates for the Software during the Subscription Term (at no additional charge) according to the Support Terms.
2.2. Subscription Renewal. After the initial Subscription Term, your Software subscription will renew for subsequent, annual subscription terms. At least 30 days before the end of the Subscription Term, Adaptive will send you a Renewal Order. You must provide Adaptive with your election to either renew or not renew your Software subscription. If you elect to renew your Software subscription, you agree to pay the applicable subscription renewal fees at the beginning of the renewal subscription term (unless otherwise stated in the Renewal Order).
2.3. Professional Services. Any professional services to be performed by Adaptive in connection with the configuration and implementation of the Software will be described in a separate statement of work and will be performed pursuant to the terms of a separate professional services agreement, however, the terms and conditions of this Agreement will apply to the professional services provided.
3. USE OF THE SOFTWARE
3.1. Software Access. You are responsible for obtaining, maintaining, and supporting all internet access, computer hardware, and other services needed to access the Software. As part of the initial registration process, Adaptive will provide you with an administrative username and password for your account. You agree to promptly notify Adaptive of any suspected or unauthorized use of your account (that you become aware of).
3.2. Authorized Users. You determine the access controls for your Authorized Users. You are responsible for the activity occurring under your account by Authorized Users (and their compliance with this Agreement). Authorized User passwords are for named individual users and cannot be shared or used by more than one user at a time, although, you may reassign an Authorized User in your account (but not their password) to a new Authorized User who is replacing a former Authorized User (who no longer requires access or use of the Software).
3.3. Restrictions. You may not use the Services other than as authorized in this Agreement (or in your Order). You may not (1) resell, sublicense, or share the Software with or for any third party (unless authorized in your Order), (2) use the Software for unlawful or illegal purposes, (3) access the Software for competitive purposes, (4) attempt to derive the source code of the Software or to interfere with its functionality, or (5) attempt to disable or circumvent any security features of the Software, or permit unauthorized access to the Software.
4. SUPPORT TERMS
4.1. Technical Support. Adaptive provides technical support through its online knowledge base support program. Support requests are submitted through this online support program. Adaptive provides technical support 12 hours per day Monday through Friday (excluding nationally recognized holidays), during the published support hours for your specific region. Premium support may be purchased separately or provided through an Adaptive certified partner. Adaptive will respond to technical support requests within 1 business day. Only account administrator(s) may contact Adaptive technical support personnel to report a problem with the Software. When submitting a problem report, you must (1) notify Adaptive of the problem with the Software and provide information regarding the problem (to enable Adaptive to reproduce the problem), and (2) provide Adaptive with reasonable assistance, as requested, to help troubleshoot the problem. Adaptive will not be responsible for providing support for problems in the operation or performance of the Software if the problem relates to errors in your data, formulas, databases, access to other software or databases, or from any unauthorized use or modification of the Software (based on the documentation that is provided with the Software).
4.2. Software Updates. Adaptive makes updates (error corrections, bug fixes, and enhancements) to the Software on an ongoing basis. Except in the case of urgent updates, Adaptive schedules maintenance during appropriate, non-peak usage hours (that minimizes the impact on all users, worldwide) and will provide advance notice of any planned unavailability (to the extent possible).
4.3. Service Levels. Adaptive will use reasonable efforts to (1) meet the Uptime Availability for the Software of at least 99.5% of the time per month (except for scheduled downtime (for maintenance) and circumstances beyond Adaptive’s reasonable control), (2) maintain the Software to minimize its unavailability, and (3) provide information (circumstances permitting) when access to the Software will be restored. If the Uptime Availability is not met in a calendar month, Adaptive will credit you with 1 month of the Subscription Fees. You must request this credit (in writing) within 15 days of the month in which the Uptime Availability was not met, which will extend your current Subscription Term by 1 month. This credit is your only remedy for Adaptive not meeting the Uptime Availability for the Software.
5.1. Payment Terms. Unless otherwise specified in your Order or elsewhere in this Agreement, all amounts payable under this Agreement are due and payable within 30 days from the invoice date. Invoices will be sent directly to the billing contact identified on the Order (and you agree to keep Adaptive informed of any updates or changes to your billing contact information). Late payments (on any undisputed amounts) may be subject to interest charges of 1.0% per month (or the maximum permitted by law, whichever is lower) and the expenses associated with those collections. Billing disputes must be reported to Adaptive (in writing) within 60 days from the invoice date. Except as otherwise provided in this Agreement, all payment obligations are non-cancelable and once paid are nonrefundable.
5.2. Taxes. All amounts payable by you to Adaptive under this Agreement are exclusive of any applicable sales or use taxes (such as GST or VAT). These taxes (if applicable) will be charged separately on your invoice, unless you provide (in advance) a valid tax exemption certificate authorized by the applicable taxing authority.
6. CUSTOMER DATA
6.1. Customer Data. You own and retain all rights to your Customer Data. You are responsible for the accuracy, quality, integrity, and legality of your Customer Data. You agree to abide by (and be responsible for your compliance with) applicable laws and regulations regarding your access and use of Customer Data with the Software and you acknowledge that the Software is not designed (or intended) to process or manage any Protected Information.
6.2. Data Security. You are responsible for (1) properly configuring the access rights for your Authorized Users, (2) your Authorized User’s access and use of the Software, and (3) the secure transmission of your Customer Data to the Software. Adaptive will maintain administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Customer Data in accordance with its Information Security Program. Any future revisions to the Information Security Program will not diminish the current data security obligations of Adaptive. Upon request, Adaptive will provide you with a copy of (1) its current Information Security Program, and (2) its annual, independent SSAE-16 or SOC (or successor type) audit report covering the operations of Adaptive. Adaptive will promptly notify you of any actual or suspected breaches of security that may result in the unauthorized access, use or disclosure of your Customer Data and will cooperate with you in the investigation and remediation of any such breach of security. Adaptive will also cooperate with you in responding to reasonable inquiries from you (or from your regulators or data controllers) regarding Adaptive’s compliance with its data security obligations under this Agreement.
6.3. Data Access and Controls. You manage and control access to your account (by Authorized Users) and the use and processing of your Customer Data by the Software. Customer Data will not be accessed by Adaptive except as necessary (by authorized personnel) to identify, investigate, or resolve technical problems with the Software or to verify your compliance with the terms of this Agreement. Customer Data that is accessed by Adaptive will (1) be kept confidential, (2) handled according to applicable laws and regulations, and (3) not be shared with any unauthorized personnel or commingled with other customer’s data.
6.4. Disclosure of Data. Adaptive may disclose Customer Data if the disclosure is necessary to comply with a valid court order or subpoena or to comply with applicable law, rule or regulation of a governmental authority. Adaptive will promptly notify you of the request for such disclosure (unless prohibited by such process) and will cooperate with you if you choose to contest the disclosure, seek confidential treatment of the Customer Data to be disclosed, or to limit the nature or scope of the Customer Data to be disclosed.
7. TERMINATION; SUSPENSION
7.1. Termination for Cause. A party may terminate this Agreement if the other party commits a material breach of this Agreement and does not cure the breach within 30 days from receiving written notice. If you terminate this Agreement for cause, Adaptive will refund to you the unused portion of the Subscription Fees that were paid for the Software for the remainder of the Subscription Term.
7.2. Suspension of Software. Adaptive reserves the right to temporarily suspend access to the Software if (1) you have undisputed amounts more than 30 days past due, (2) you have not paid the subscription renewal fees when due, or (3) Adaptive reasonably determines that you are using the Software in a way that creates a security vulnerability to the Software, or is in breach of this Agreement. Adaptive will give you prior notice if access will be suspended and will promptly restore access once the issue has been resolved. Adaptive will not suspend access if you are (reasonably and in good faith) disputing a charge and cooperating in resolving the dispute.
7.3. Effect of Termination. On the expiration or termination of this Agreement, you will (1) stop using and accessing the Software (other than as permitted in Section 7.4), and (2) pay to Adaptive any Subscription Fees that had accrued (but had not been paid) prior to the effective date of termination. Any post-termination transition assistance requested from Adaptive is subject to the mutual agreement of the parties (and may require payment of professional services fees for such assistance). Sections 3.3, 6 (while Customer Data is stored in the Software), and 7 through 12 will survive the expiration or termination of this Agreement.
7.4. Access to Customer Data. You may continue to access the Software in order to retrieve and download the Customer Data stored in the Software for up to 30 days after the expiration or termination of this Agreement. After that time, Customer Data stored in the Software will be deleted (unless legally prohibited) in accordance with the Information Security Program.
8.1. Confidentiality. In addition to the confidential treatment of Customer Data pursuant to the terms of Section 6, in connection with the use of the Software or in the performance of professional services, each party may need to provide the other with certain Confidential Information. The receiving party may only use this Confidential Information for the purpose for which it was provided and may only share this Confidential Information with its employees, agents, and representatives who need to know it, provided they are subject to similar confidentiality obligations. The receiving party will use a reasonable degree of care (in a similar way it protects its own confidential information) to protect this Confidential Information and to prevent any unauthorized use or disclosure of this Confidential Information.
8.2. Exceptions. Confidential Information does not include any information that (1) was known (without any confidentiality obligations) prior to disclosure by the disclosing party, (2) is publicly available (through no fault of the receiving party), (3) is rightfully received by a third party (without a duty of confidentiality), or (4) is independently developed (without access or use of Confidential Information). The receiving party may disclose Confidential Information when compelled to do so by law, so long as the receiving party provides prior written notice of the disclosure (if legally permitted) to allow the disclosing party the opportunity to seek protection or confidential treatment or to limit or prevent such disclosure. The receiving party also agrees to cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed.
9. PROPRIETARY RIGHTS
9.1. Adaptive IP. Adaptive owns all right, title and interest in and to Software, including any modifications and enhancements. This Agreement does not grant any ownership rights to the Software and the Subscription Fees only apply to your use of the Software. Adaptive may ask you for Feedback. If you elect to provide any Feedback Adaptive may freely use and exploit the Feedback you provide (without any obligations or restrictions).
9.2. Usage Data. Adaptive monitors and collects data about the general use of the Software by all customers. This data does not include or contain any Customer Data. Adaptive uses this data for its own business purposes (such as improving, testing, and maintaining the Software and developing additional products and services), and from time to time, may publish this data (in the aggregate, which would not identify you or any other customer specifically) for informational (and other such) purposes.
9.3. Attribution. Unless otherwise set forth on the Order, Adaptive may use your name (and the corresponding trademark or logo) on Adaptive’s website and marketing materials to identify your business as a customer, subject to any usage guidelines that you provide or any pre-approval or authorization you may require (which you agree not to unreasonably withhold or delay).
10. DISCLAIMER AND LIMITATION OF LIABILITY
10.1. Disclaimer. Adaptive does not offer financial or accounting advice. Adaptive may provide general information about standard finance and accounting principles, but such general information is intended for informational purposes only, and is not intended to be relied upon as professional advice. Adaptive does not warrant that the operation of the Software will be entirely secure, completely error free, or uninterrupted. ADAPTIVE DISCLAIMS ANY IMPLIED WARRANTIES AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, DOES NOT MAKE ANY OTHER WARRANTIES.
10.2. Limitation of Liability. Except for any gross negligence, willful misconduct, a party’s indemnification obligations (pursuant to Section 11), or a breach of Section 8.1 (Confidentiality), neither party will be liable for (1) any indirect, consequential, or incidental damages, (regardless of the basis or type of claim and even if advised of the possibility of such damages), and/or (2) an amount that exceeds the Subscription Fees due from you for the applicable Subscription Term. These exclusions are meant to apply to the fullest extent permitted by applicable law and regardless of the failure of any specific remedy.
11.1. By Adaptive. Adaptive will defend, indemnify and hold you harmless from and against any claim brought against you by a third party, any final award of damages or settlement amount, and any liabilities or expenses incurred by you (including reasonable attorneys’ fees) as a result of the claim, which alleges that the Software infringes any intellectual property right of a third party. If the use of the Software is (or in Adaptive’s opinion is likely to be) enjoined due to such a claim, Adaptive will either (1) procure the right to continue using the Software under the terms of this Agreement, (2) replace or modify the Software so that it is non-infringing (but functionally equivalent), or (3) if Adaptive is unable to achieve either of these options, then Adaptive may cancel your license with respect to the infringing Software and refund you the unused portion of the Subscription Fees paid for the Software for which the use is legally prohibited. This section describes Adaptive’s entire responsibility and your sole remedy for any infringement claim or action regarding the Software.
11.2. By You. You will defend, indemnify and hold Adaptive harmless from and against any claim brought against Adaptive by a third party, any final award of damages or settlement amount, and any liabilities or expenses incurred by Adaptive (including reasonable attorneys’ fees) as a result of the claim, which alleges the access, use, or provision of any Customer Data in connection with your use of the Software violates any applicable law, regulation, or the proprietary rights of others.
11.3. Process. These indemnity obligations are conditioned on the indemnified party promptly notifying the indemnifying party in writing of the claim (a delay in providing notice does not excuse these indemnity obligations unless the indemnifying party is prejudiced by such delay), the indemnified party giving the indemnifying party sole control of the defense of the claim (and in any related settlement negotiations), and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense. The indemnified party may participate in the defense of the claim using its own counsel (at its own expense). The indemnifying party may not settle the claim without the indemnified party’s consent if such settlement imposes a payment or other obligation on the indemnified party.
12.1. Relationship of the Parties. This Agreement does not create or imply any agency, partnership, or franchise relationship. This Agreement is intended for the benefit of the parties and is not intended to benefit any third party. Neither party has the authority to assume or create any obligation on behalf of the other party.
12.2. Assignment. Neither party may assign the Order or this Agreement without the other party’s prior written consent (except to an affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assets or equity of such party). Any attempt to assign the Order or this Agreement other than as permitted in this Agreement will be null and void.
12.3. Notices. Any notice, approval, consent, or other communication intended to have legal effect under this Agreement must be given to the other party in writing, by first-class, registered, or overnight mail or private overnight courier (to the address for the other party stated on the Order, unless the other party has given notice of a new address), and will be deemed given upon receipt.
12.4. Contracting Entity and Governing Law. Your Order indicates which Adaptive entity you are contracting with, which determines the applicable governing law (which applies without regard to any conflicts of law principles) and the jurisdiction and venue for any disputes arising out of or relating to this Agreement. (1) if contracting with Workday Adaptive Planning, Inc., governing law is the State of California, U.S.A. and jurisdiction and venue is in Santa Clara County, California, U.S.A., (2) if contracting with Workday Adaptive Planning Pty Ltd. (Australia and New Zealand), governing law is the State of New South Wales, Australia, and jurisdiction and venue is in Sydney, Australia, (3) if contracting with Workday Adaptive Planning, Ltd. (Canada), governing law is the Province of Ontario, and jurisdiction and venue is in Toronto, Ontario, (4) if contracting with Workday Adaptive Planning Co., Ltd. (Japan), governing law is the laws of Japan, and jurisdiction and venue is in Tokyo, Japan, or (5) if contracting with Workday Adaptive Planning Limited (United Kingdom and Ireland), governing law is the laws of England, and jurisdiction and venue is in London, England.
12.5. Entire Understanding. This Agreement constitutes the complete and exclusive understanding and agreement between the parties regarding this subject and supersedes all prior or contemporaneous agreements or understandings (written or verbal) relating to this subject matter of this Agreement. No terms in any purchase order or in any order documentation (other than the Order or a Renewal Order) are incorporated into or form any part of this Agreement. If any terms are found to be void or unenforceable, the remaining terms of this Agreement will remain in full force and effect. Any waiver, modification, or amendment of this Agreement must be in writing and signed by authorized representatives of both parties. This Agreement may be provided in different languages, however, the English version of this Agreement will control. Les parties conviennent que ce contrat écrit et signé en anglais.
12.6. Statutory Exceptions for Public Institutions. If you are a qualified public educational or government institution and any terms in this Agreement (such as, by way of example, all or part of the indemnification section) are invalid or unenforceable against you because of applicable law, then those terms will be deemed excluded and unenforceable (as the case may be), and instead construed in a manner most consistent with applicable governing law. In addition, if the applicable governing law is precluded in these situations, then this Agreement will be construed under the laws of the state/province in which your primary office is located.