This Master Subscription Agreement is between Workday, Inc. (“Workday”) a Delaware corporation with offices at 6230 Stoneridge Mall Road, Pleasanton, CA 94588 and the legal entity signing the Signature Document referencing this Agreement (“Customer”). The parties agree as follows:
1. Provision of Service. Workday shall make the Service available to Customer for use by Customer, its Affiliates and Authorized Parties for whom Customer enables access solely for the internal business purposes of Customer and its Affiliates, subject to this Agreement, including the scope of use defined in the applicable Order Form, the SLA, the Data Processing Exhibit, and the Security Exhibit. The Service is provided in U.S. English.
1.1 Invoices & Payment. All fees for the Service are based on access rights acquired and not actual usage, and will be electronically invoiced to, and remitted from, the United States by Customer. All fees shall be due and payable within thirty (30) days of invoice date, except fees subject to a reasonable and good faith dispute. Workday shall email invoices to Customer within two business days of the date of the invoice. Customer shall provide Workday with complete and accurate billing contact information including a valid email address. Upon Workday’s request, Customer will make payments via electronic bank transfer. Except for a termination and/or refund as specifically set forth to the contrary under Section 6. “Warranties”, Section 7 “IP Indemnification”, Section 9.1 “Termination”, and Section 10.10 Workday SLA Service Credits, all Order Forms are non-cancelable and all payments are non-refundable.
1.2 Suspension for Non-Payment. Except for fees subject to a reasonable and good faith dispute, if a payment is more than ninety (90) days past due and Workday has provided at least thirty (30) days written notice to Customer, Workday may suspend the Service, without liability to Customer, until such amounts are paid in full.
1.3 Taxes. Fees invoiced pursuant to this Agreement do not include, and may not be reduced to account for, any taxes, which may include local, state, provincial, federal or foreign taxes, withholding taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes (collectively “Taxes”). Customer is responsible for paying all Taxes imposed on the Service or any other services provided under this Agreement. If Workday has a legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer’s address listed in the Signature Document for this Agreement which will be used as the ship-to address on the Order Form, and invoiced to and paid by Customer, unless Customer provides Workday with a valid tax exemption certificate authorized by the appropriate taxing authority.
2. Customer Obligations. Customer shall: (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data; and (b) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Workday promptly of any unauthorized access or use. Customer shall not: (i) use the Service in violation of applicable Laws; (ii) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) knowingly send or store Malicious Code in connection with the Service; (iv) knowingly interfere with or disrupt performance of the Service or the data contained therein; or (v) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation. Customer is responsible for its Affiliates and Authorized Parties compliance with this Agreement and any breach by its Affiliates or Authorized Parties shall be deemed a breach by Customer.
3. Proprietary Rights. As between Workday and Customer, Customer owns all right, title and interest to its Customer Data. As between Customer, Workday, and Workday’s licensors, Workday and/or its licensors own all right, title and interest to the Service, Documentation, and other Workday Intellectual Property Rights. Except for the limited rights expressly granted to Customer hereunder, Workday reserves all rights, title and interest in and to the Service and Documentation, including all related Intellectual Property Rights. Workday shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Service any Customer Input. Workday shall have no obligation to make Customer Input an Improvement. Customer shall have no obligation to provide Customer Input.
3.1 Restrictions. Customer shall not (i) modify, copy, or create derivative works based on, the Service or Documentation; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service or Documentation available to any third party other than to Authorized Parties as permitted herein; (iii) reverse engineer or decompile any portion of the Service or Documentation, including but not limited to, any software utilized by Workday in the provision of the Service and Documentation, except to the extent required by Law; (iv) access the Service or Documentation in order to build any commercially available product or service; or (v) copy any features, functions, integrations, interfaces or graphics of the Service or Documentation. Notwithstanding subsection (v), Customer may make a reasonable number of copies of the Documentation for internal business purposes only.
4. Confidentiality. Each party (a “Recipient”) shall use the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care) to not disclose or use any Confidential Information of the other party (a “Discloser”) except as reasonably necessary to perform Recipient’s obligations or exercise Recipient’s rights pursuant to this Agreement or with the Discloser's prior written permission. Either party may disclose Confidential Information on a need to know basis to its Affiliates, contractors and service providers bound by confidentiality obligations at least as restrictive as those in this section. To the extent required by Law, Recipient’s disclosure of Discloser’s Confidential Information shall not be considered a breach of this Agreement provided that Recipient promptly provides Discloser with prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. Discloser shall have the right to seek injunctive relief to enjoin any breach or threatened breach of this section, it being acknowledged by the parties that other remedies may be inadequate.
5. Protection and Security of Customer Data. Workday shall maintain a security program materially in accordance with industry standards and the controls set forth in the Audit Reports and the Workday Security Exhibit, that is designed to protect the security, confidentiality, and integrity of Customer Data. Workday shall not materially diminish the protections provided by the controls set forth in Workday's Security Exhibit and Audit Reports. Upon Customer’s request, Workday will provide a copy of the Audit Reports. Customer Data shall only be used to provide the Service, to prevent or address service or technical problems, verify Service Improvements, in accordance with this Agreement and the Documentation, or Customer instructions. Personal Data will only be processed in accordance with the Data Processing Exhibit. Workday designs its Service to allow Customers to achieve differentiated configurations, configure user access controls, and manage data categories that may be populated and/or made accessible on a country-by-country basis.
5.1 Unauthorized Disclosure. If either party becomes aware of a Security Breach, such party must promptly notify the other party, unless legally prohibited from doing so, within forty-eight hours or any shorter period required by Law. Additionally, each party will reasonably assist the other party in mitigating any potential damage. As soon as reasonably practicable after any Security Breach, Workday shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with Customer.
6. Warranties. Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it including, but not limited to, Laws related to data privacy, international communications and the transmission of technical or Personal Data. Workday warrants that during the Term: (i) The Service shall perform materially in accordance with the Documentation; (ii) The functionality of the Service will not be materially decreased; and (iii) To the best of its knowledge, the Service does not contain, and Workday will not knowingly introduce, any Malicious Code. In the event of a breach of the warranty set forth in (i) and (ii), Workday shall correct the non-conforming Service at no additional charge to Customer, and in the event Workday is unable to correct such deficiencies after good-faith efforts, Workday shall refund Customer amounts paid attributable to the defective Service from the date Workday received such notice. Customer shall use commercially reasonable efforts to notify Workday in writing within thirty (30) days of identifying a deficiency, but Customer’s failure to notify Workday within such period shall not affect Customer’s right to receive warranty remedies unless Workday is somehow unable to, or impaired in its ability to, correct the deficiency due to Customer’s failure to notify. Notice of breaches of the warranty in (i) shall be made through Workday’s then-current error reporting system; notices of breaches of any other warranty shall be made in writing to Workday in accordance with the notice provisions of this Agreement. The remedies set forth in this section shall be Customer’s sole remedy and Workday’s sole liability for breach of these warranties unless the breach of warranty constitutes a material breach of the Agreement and Customer elects to terminate the Agreement in accordance with the section entitled “Termination.”
6.1 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WORKDAY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WORKDAY DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER.
7. IP Indemnification. Workday shall defend Customer, at Workday’s expense, from claims, demands, suits, or proceedings made or brought against Customer by a third party (“Claims”) alleging that the use of the Service as contemplated hereunder infringes such third party’s Intellectual Property Rights and shall indemnify and hold Customer harmless against any loss, damage or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, “Losses”); provided that Customer: (a) promptly gives written notice of the Claim to Workday (although a delay of notice will not relieve Workday of its obligations under this section except to the extent that Workday is prejudiced by such delay); (b) gives Workday sole control of the defense and settlement of the Claim (although Workday may not settle any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Workday, at Workday's cost, all reasonable assistance. Workday shall have no liability for Claims or Losses to the extent arising from: (v) modification of the Service by anyone other than Workday; (w) use of the Service in a manner inconsistent with the Agreement or Documentation; or (x) use of the Service in combination with any other product or service not provided by Workday. If Customer is enjoined from using the Service or Workday reasonably believes it will be enjoined, Workday shall have the right, at its sole option, to obtain for Customer the right to continue use of the Service or to replace or modify the Service so that it is no longer infringing. If neither of the foregoing options is reasonably available to Workday, then the Agreement may be terminated at either party’s option and Workday’s sole liability, in addition to the indemnification obligations herein, shall be to refund any prepaid fees for the Service that was to be provided after the effective date of termination.
8. Limitation of Liability.
8.1. Limitation of Liability. EXCEPT WITH RESPECT TO DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, WORKDAY’S IP INDEMNIFICATION OBLIGATIONS IN SECTION 7, AND WORKDAY’S REMEDIATION OBLIGATIONS IN SECTION 8.3, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID AND/OR PAYABLE UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD FOR THE SERVICE FROM WHICH THE CLAIM AROSE (“GENERAL CAP”), EXCEPT THAT FOR breach OF EITHER PARTY’S CONFIDENTIALITY, SECURITY, OR PRIVACY OBLIGATIONS, SUCH PARTY’S TOTAL AGGREGATE LIABILITY shall BE INCREASED TO TWENTY-FOUR (24) MONTHS FEES (“ENHANCED CAP”).
8.2. Exclusion of Damages. EXCEPT FOR WORKDAY’S IP INDEMNIFICATION OBLIGATIONS IN SECTION 7, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES HAVE LIABILITY FOR LOST PROFITS OR REVENUES, LOSS OF USE OR DATA, BUSINESS INTERRUPTION, OR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR COVER DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF THE PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSIONS IN THIS SECTION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. CUSTOMER’S PAYMENT OBLIGATIONS SHALL NOT BE CONSIDERED WORKDAY’S LOST PROFITS.
8.3. Workday Remediation Obligations. If unauthorized disclosure of or access to Personal Data is caused by Workday’s breach of its security and/or privacy obligations under this Agreement, Workday shall pay the reasonable and documented costs incurred by Customer in connection with the following items: (a) costs of any required forensic investigation to determine the cause of the breach, (b) providing notification of the security breach to applicable government and relevant industry self-regulatory agencies, to the media (if required by applicable Law) and to individuals whose Personal Data have been disclosed and/or accessed (“Affected Individuals”), (c) providing a credit monitoring service to Affected Individuals for a period of one year after the date on which such individuals were notified of the unauthorized disclosure or access for such individuals who elected such credit monitoring service, and (d) operating a call center to respond to questions from Affected Individuals for a period of one year after the date on which such individuals were notified of the unauthorized disclosure or access. Notwithstanding the foregoing, or anything in the Agreement to the contrary, Workday shall have no responsibility to pay costs of remediation to the extent they are due to reckless misconduct, gross negligence, willful misconduct and/or fraud by Customer or its employees, agents or contractors or Authorized Parties.
8.4. Third Party Damages. If Workday breaches this Agreement, Workday shall reimburse Customer, subject to 8.1, for reasonable costs and expenses actually paid to third parties for: (i) amounts paid to affected third parties as damages or settlements arising from such breach; (ii) fines and penalties imposed by governmental authority arising from such breach; and (iii) legal fees, including reasonable attorneys’ fees, to defend against third party claims arising from such breach.
9. Term. This Agreement continues from the Effective Date (as defined in the Signature Document) until all Order Forms have expired or otherwise been terminated, unless extended pursuant to the written agreement of the parties (“Term”). Subscriptions to the Service commence on the date, and are for the period set forth in the applicable Order Form.
9.1 Termination. Either party may terminate this Agreement: (i) upon thirty (30) days prior written notice to the other party for a material breach by the other party if such breach remains uncured at the expiration of such notice period; or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If the Agreement is terminated, all Order Forms are simultaneously terminated and Customer shall, as of the date of any termination, immediately cease accessing and otherwise utilizing the applicable Service (except as permitted under the sections entitled “Retrieval of Customer Data” and/or “Transition Period Before Final Termination”) and Workday Confidential Information. Upon termination by Customer pursuant to this section, Workday shall refund Customer any prepaid fees for the affected Service that was to be provided after the effective date of termination. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Workday prior to the effective date of termination and termination for any reason other than for uncured material breach by Workday shall not relieve Customer of the obligation to pay all future amounts due under all order forms.
9.2 Retrieval of Customer Data. Upon Customer’s written request made on or prior to expiration or termination of the Agreement, Workday will give Customer limited access to the Service for a period of up to sixty (60) days, at no additional cost, solely for purposes of retrieving Customer Data. Subject to such sixty day period and Workday’s legal obligations, Workday has no obligation to maintain or provide any Customer Data and shall, unless legally prohibited, delete Customer Data by deleting Customer’s Tenant; provided, however, that Workday will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Workday will continue to protect the Customer Data in accordance with this Agreement. For clarity, during the Term, Customer may extract Customer Data using Workday’s standard web services as described in the Documentation.
9.3 Transition Period Before Final Termination. If this Agreement is terminated and Customer submits a written request to Workday for a one-time transition period within thirty (30) days of such termination, Workday will continue to provide the Service for up to three (3) months (the “Transition Period”). Monthly fees for the Transition Period will be 1/12 of the immediately preceding twelve-month period plus an additional five percent (5%). If Customer requests transition assistance during the Transition Period, Workday will provide consulting cooperation and assistance regarding the Workday Service as set forth in a statement of work, governed by a professional services agreement, at Workday’s then-current rates for consulting services unless a different rate is mutually agreed upon by the parties. Notwithstanding the foregoing, if Workday is enjoined from performing, or termination of the Agreement was due to Customer’s breach, Workday has no obligation to perform under this section unless it receives (i) payment of all fees not subject to reasonable and good faith dispute, (ii) prepayment of fees for further services, and (iii) certification of ongoing compliance with the terms of this Agreement during the Transition Period.
9.4 Surviving Provisions. Sections 1.1, 3, 4, 5 and 5.1 (for so long as Workday retains Customer Data), 6.1, 7, 8, 9.2 and 9.3, 10 (except 10.2 and 10.10), and 11 shall survive any termination or expiration of this Agreement.
10. General Provisions.
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 the Agreement.
10.2 Insurance. Workday will maintain, at its own expense, the types of insurance coverage specified below, on standard policy forms and with insurance companies with at least an A.M. Best Rating of A-VII authorized to do business in the jurisdictions where the Workday services are to be performed. Upon Customer’s written request, Workday will provide a certificate of insurance evidencing the coverages specified below.
(a) Workers’ Compensation insurance prescribed by applicable local law and Employers Liability insurance with limits not less than $1,000,000 per accident/per employee.
(b) Commercial General Liability insurance including Contractual Liability Coverage, with coverage for products liability, completed operations, property damage and bodily injury, including death, with an aggregate limit of no less than $2,000,000. This policy shall name Customer as an additional insured with respect to the provision of services provided under this Agreement.
(c) Technology Professional Liability Errors & Omissions policy (which includes Cyber Risk coverage and Computer Security and Privacy Liability coverage) with a limit of no less than $10,000,000 per occurrence and in the aggregate.
10.3 Notices. Unless expressly stated otherwise, all notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; and (ii) the third business day after first class mailing. Notices to Workday shall be addressed to the attention of its General Counsel. Notices to Customer shall be addressed to Customer’s signatory of this Agreement. Each party may modify its recipient of notices by providing notice pursuant to this Agreement.
10.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
10.5 Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence. Dates by which performance obligations are scheduled to be met will be extended for a period equal to the time lost due to any delay so caused.
10.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of this Agreement and all past due fees are paid in full. Any attempt by a party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.7 Governing Law; Waiver of Jury Trial. This Agreement shall be governed exclusively by laws of the State of New York, without regard to its conflicts of laws rules. Each party 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.
10.8 Export. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the generality of the foregoing, Customer shall not make the Service available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; (ii) is listed on any U.S. government list of prohibited or restricted parties; or (iii) is engaged in activities directly or indirectly related to proliferation of weapons of mass destruction.
10.9 Federal Government End Use Provisions (if applicable). Workday provides the Service, including related software and technology, for federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202.3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a “need for” right 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 to convey such rights beyond those set forth herein.
10.10 Workday SLA Service Credits. If Workday fails to meet the Service Availability and Service Response minimums in a calendar month as set forth in the SLA, in any rolling six-month period (“Failure”), then as Customer’s sole and exclusive remedy, Workday shall provide, at Customer’s request, service credits for the subscription fees paid for the applicable month for the affected Service as follows: (a) the parties shall meet to discuss possible corrective actions for the first Failure; (b) 10% of subscription fee for a second Failure; (c) 20% of subscription fee for a third Failure; and (d) 30% of subscription fee for a fourth Failure. If more than one of the above (a through d) is triggered, the greater amount for the applicable month shall apply. If there is a Failure in more than three months in any rolling six-month period, then within thirty (30) days of the most recent Failure, Customer may terminate the Agreement and Workday shall refund Customer any prepaid fees for the affected Service that was to be provided after the effective date of termination. Credits shall be deducted from subsequent invoices for subscription fees or, upon expiration or termination of the Agreement, paid to Customer directly.
10.11 Miscellaneous. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of an Order Form shall take precedence over provisions of the body of this Agreement and over any other exhibit or attachment. Customer acknowledges that it has had the opportunity to review all exhibits and attachments hereto. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. Notwithstanding anything to the contrary in this Agreement, no terms or conditions in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. This Agreement may be executed in counterparts and/or by electronic signatures.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party. For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement, including the SLA, Security Exhibit, Data Processing Exhibit, and any other exhibits, addenda, or attachments hereto, and any fully executed Order Form.
“Audit Reports” means the most recently completed SOC1 and SOC2 audit reports or comparable industry-standard successor report prepared by Workday’s independent third party auditor.
“Authorized Parties” means Customer’s or an authorized Affiliate’s Employees and third party providers authorized to access Customer’s Tenants and/or to receive Customer Data by Customer (i) in writing, (ii) through the Service’s security designation, or (iii) by system integration or other data exchange process.
“Confidential Information” means (a) any software utilized by Workday in the provision of the Service and its respective source code; (b) Customer Data; (c) each party’s business or technical information, including but not limited to the Documentation, training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement (but not its existence or parties). Confidential Information does not include any information that, without Recipient’s breach of an obligation owed to Discloser: (i) is or becomes generally known to the public; (ii) was known to Recipient prior to disclosure by Discloser; (iii) was independently developed by Recipient; or (iv) is received by Recipient from a third party. Customer Data shall not be subject to the exclusions set forth in this definition.
“Customer Data” means electronic data or information submitted to the Service by Customer or Authorized Parties.
“Customer Input” means suggestions, enhancement requests, recommendations or other feedback provided by Customer, its Employees and/or Authorized Parties relating to the operation or functionality of the Service.
“Data Processing Exhibit” or “DPE” means that exhibit located at https://www.workday.com/en-us/legal/contract-terms-and-conditions/index/data-processing-exhibit.html (password: thepowerof1), which is hereby incorporated by reference into this Agreement.
“Documentation” means Workday’s electronic Administrator Guide for the Service, which may be updated by Workday from time to time.
“Employee” or “Worker” means employees, consultants, contingent workers, independent contractors, and retirees of Customer and its Affiliates whose business record(s) are or may be managed by the Service and for whom a subscription to the Service has been purchased in an Order Form.
“Improvements” means all improvements, updates, enhancements, error corrections, bug fixes, release notes, upgrades and changes to the Service and Documentation, as developed by Workday and made generally available for Production use without a separate charge to Customers.
“Intellectual Property Rights” or “IP” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.
“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to the respective party.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents under which Customer subscribes to the Service which is fully executed pursuant to this Agreement.
“Personal Data” has the definition set forth in the Data Processing Exhibit.
“Production” means the Customer’s use of or Workday’s written verification of the availability of the Service (i) to administer Employees; (ii) to generate data for Customer’s books/records; or (iii) in any decision support capacity. Production does not include sandbox, preview, or implementation Tenants.
“Security Breach” means (i) any actual or reasonably suspected unauthorized use of, loss of, access to or disclosure of, Customer Data; provided that an incidental disclosure of Customer Data to an Authorized Party or Workday, or incidental access to Customer Data by an Authorized Party or Workday, where no reasonable suspicion exists that such disclosure or access involves theft, or is fraudulent, criminal or malicious in nature, shall not be considered a “Security Breach” for purposes of this definition, unless such incidental disclosure or incidental access triggers a notification obligation under any applicable Law and (ii) any security breach (or substantially similar term) as defined by applicable Law.
“Security Exhibit” means that exhibit located at https://www.workday.com/en-us/legal/contract-terms-and-conditions/index/security-exhibit.html (password: thepowerof1), which is hereby incorporated by reference into this Agreement.
“Service” means Workday’s software-as-a-service applications as described in the Documentation and subscribed to under an Order Form.
“SLA” means the Workday Production Support and Service Level Availability Policy Exhibit, located at https://www.workday.com/en-us/legal/contract-terms-and-conditions/index/production-support-and-service-level-availability.html (password: thepowerof1), which is hereby incorporated by reference into this Agreement, and which may be updated by Workday from time to time. No update shall materially diminish Workday’s responsibilities under the SLA.
“Tenant” means a unique instance of the Service, with a separate set of customer data held by Workday in a logically separated database (i.e. a database segregated through password-controlled access).